Driving with a high range of prescribed concentration of alcohol in breath or blood is an offence under section 110(5) of the Road Transport Act 2013.
This offence occurs when a person drives or attempts to drive a motor vehicle with a blood alcohol concentration (BAC) of 0.15 or above.
Police will usually administer a breath test using a breathalyser often by the side of the road which will provide an indicative reading. If the reading is positive, the person will be required to attend a police station for a breath analysis to determine the BAC.
Provided the breath analysis was taken within two hours of driving, the breath analysis is deemed to be the concentration of alcohol present in the person’s blood at the time of driving. If the BAC is over 0.15 that person will be charged with high range PCA.
If charged with this offence the police can suspend and confiscate your licence within 48 hours of the charge or penalty notice being issued. The suspension will remain in place until the offence is heard by a court. If your licence is disqualified by the court, the Magistrate can consider the licence suspension in deciding the disqualification period.
The Guideline Judgement
High range is a very serious offence and when sentencing offenders for this particular offence the court is required to consider the guideline judgement.
A guideline judgement is a list of general rules for courts to follow when sentencing an offender for a specific offence.
The guidelines for high range PCA include:
- In ordinary cases for a first high range drink driving offence:
• The automatic disqualification period should be adhered to, unless there is a valid reason to offer a reduced period of disqualification;
• A section 10 dismissal or a Conditional Release Order will only be appropriate in rare cases;
• Attending, or planning to attend a driver awareness course, will not be sufficient to avoid a conviction. - Valid reasons for reducing the automatic disqualification period can include a lack of alternative forms of transport, the necessity of driving for employment purposes, and any poor health or infirmity on the part of the offender or anyone they are caring for.
- In ordinary cases of a second or subsequent high range drink driving offence:
• A non-conviction order is only appropriate in rare cases;
• A Conditional Release Order is not sufficient punishment in most cases;
• Any penalty more lenient than a Community Corrections Order is generally insufficient punishment where the previous offence was a high range drink driving offence. - A number of factors can increase the moral culpability of a high range drink driving offender, including:
• The length of the journey;
• The reading and where it falls in relation to 0.15;
• If the driver was involved in a collision;
• Whether the driving was erratic or aggressive;
• Whether the driver engaged in competitive driving or showing off;
• The number of people that were put at risk by the driving. - Where the moral culpability of a first high range PCA offender is increased by more than one factor, generally a sentence of imprisonment is most appropriate. A non-conviction order is extremely unlikely in this situation.
- Where the moral culpability of a second or subsequent high range PCA offender is increased, the most appropriate penalty is imprisonment.
- If there are two or more aggravating factors, or if the previous offence was a high range drink driving offence, full time imprisonment is considered to be the most appropriate sentence.
- There are a number of factors which categorise a high range PCA offence as ‘ordinary’ including:
• The driver pleading guilty;
• The driver being at little or no risk of reoffending;
• No previous history of serious traffic offences;
• The driver’s licence was suspended when the offence was detected;
• The offence was discovered during a random breath test and not due to the manner of driving;
• The driver can demonstrate prior good character;
• Loss of licence would cause significant inconvenience to the driver and people they care for. - There are a few factors which can justify leniency on the part of the court including:
• The driver has completed a traffic offender program;
• The driver has a strong dependence on their licence;
• If there were unforeseen circumstances, such as an emergency or safety concerns, which led the offender to drive.
Penalties
If high-range drink driving is your first major traffic offence within the past 5 years the maximum penalties are 18 months imprisonment, a fine of $3,300 and an automatic disqualification of licence for 3 years which can be reduced to 12 months. This offence is subject to a mandatory interlock scheme. If you are subject to an interlock order, the maximum period for which you can be disqualified from driving is 9 months which can be reduced to 6 months, followed by a 24 month period during which you must have an interlock device installed in your vehicle.
If it is your second or subsequent offence in the past 5 years the maximum penalties are 2 years imprisonment, a fine of $5,500 and an automatic disqualification of licence for 5 years which can be reduced to 2 years. This offence is also subject to a mandatory interlock scheme. If you are subject to an interlock order, the maximum period for which you can be disqualified from driving is 12 months which can be reduced to 9 months, followed by a 48 month period during which you must have an interlock device installed in your vehicle.
Section 206B
Section 206B(1) of the Road Transport Act 2013 applies where a driver licence or other authority to drive in NSW has been suspended under this Act or the statutory rules for an alleged offence.
Section 206B(2) of the Road Transport Act 2013 provides that a court that determines a charge for the offence (or for a related offence) is required to take into account the period of suspension when deciding on any period of disqualification from holding or obtaining a driver licence on conviction for the offence (or for the related offence).
This means that the court can backdate the disqualification period to commence from the date of suspension.
Interlock Orders
An interlock order is an order imposed by a court sentencing an offender for certain driving offences. It is a court order disqualifying a driver from driving and following the completion of the disqualification period, the order requires the driver to obtain an ‘interlock driver’s licence’ and participate in the interlock program for a specific period.
The interlock program requires an offender to install an interlock device in their vehicle which is linked to the ignition system of the vehicle. The offender must complete a breath test at the commencement of the driving journey and at other random times. A log is also maintained of the number of times this occurs which can be viewed by police and can potentially lead to further charges if not adhered to.
A driver can obtain an exemption to an interlock order however circumstances under which a court can make such an order are limited and may affect the period of disqualification granted by the court.
Section 211 of the Road Transport Act 2013 states that a court may make an interlock exemption order only if satisfied that:
- The offender does not have access to a vehicle to install an interlock device in; or
- The offender has a medical condition diagnosed by a medical practitioner that prevents them from providing a sufficient breath sample to operate an approved interlock device and it is not reasonably practicable for a device to be modified to enable them to operate it; or
- If the offender is convicted of an offence of mid-range drink-drive or mid-range drink-drive and presence prescribed illicit drug that is a first offence;
a) That the making of a mandatory interlock order would cause severe hardship to the person; and
b) That the making of an interlock exemption order is more appropriate in all the circumstances than the making of a mandatory interlock order.