Driving Under the Influence (NSW)
In New South Wales, it is an offence to use or attempt to use a motor vehicle while under the influence of alcohol or another drug. The offence of DUI is contained in section 112 of the Road Transport Act 2013.
The penalty for DUI for a first offence is 18 months imprisonment and or a 30 penalty until fine. In the case of a second a subsequent offence, it is 2 years imprisonment and or a 50 penalty unit fine.
This offence is also subject to mandatory disqualification periods and interlock orders, if it involves alcohol.
Disqualification Periods for DUI charges
Police have the power to issue an immediate licence suspension for a DUI charge. Usually, the Court will backdate your disqualification period to commence at the time that the police originally suspended you from driving.
The Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 imposes a mandatory disqualification period for a DUI offences that involve alcohol, which varies depending on whether it is the offender’s first or second offence.
For first offences, the minimum disqualification period is six months with a maximum of nine months, where an interlock order is also made. Where an interlock exemption order is made, the automatic disqualification period is 3 years with a minimum period of 12 months.
For second or subsequent offenders, the minimum disqualification period is nine months, and the maximum is 12 months where an interlock order is also made. Where an interlock exemption order is made, there is an automatic disqualification period of five years which can be reduced to a minimum of two years.
Mandatory Interlock Orders for DUI charges
Mandatory interlock orders automatically apply to DUI offences that involve alcohol.
Mandatory interlock orders require the driver to obtain and serve a period of time on an interlock licence after having completed their disqualification period. During this period, the person must install and maintain an interlock device their vehicle.
Unless a driver applies for and is granted an interlock exemption order, a mandatory interlock order will be automatically applied when they are convicted.
To receive an exemption from a mandatory interlock order, a person needs to satisfy Section 212 of the Road Transport Act 2013. This provision requires:
(a) That the person does not have access to a vehicle in which to install an interlock device, or
(b) That they have a diagnosed medical condition that prevents them from providing a sufficient breath sample and installing the device is not reasonably practical.
The Mandatory Interlock Order for a first DUI offence is 2 years.
The Mandatory Interlock Order for a second or subsequent DUI offence is 4 years.
What is Driving Under the Influence?
The offence of driving under the influence is contained in section 112(1) of the Road Transport Act 2013 which states:
(1) A person must not, while under the influence of alcohol or any other drug—
(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or
(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.
The definition of “drive” is very broad. It includes not only actually driving the vehicle, but also being in control of the steering, movement or propulsion of a vehicle.
The following acts could constitute an offence of driving under the influence:
- Driving a vehicle; and
- Sitting in the driver’s seat of a vehicle with the ignition on;
- Whilst you are under the influence of a drug or alcohol.
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What must be proven?
For a person to be found guilty of DUI the prosecution must prove each of the following matters beyond a reasonable doubt:
- That you “drove” a motor vehicle; or
- Were in driver’s seat an attempted to put the vehicle in motion; and
At the time you were under the influence of alcohol or any other drug. If the prosecution do not prove every single one of the above elements, you will be found not guilty.
Being “under the influence” doesn’t require the police to prove any specific blood alcohol reading, and instead this charge can be used by police when they are unable to obtain a proper reading, but they can prove that you are affected by drugs of alcohol. This is usually by way of police observations of a persons conduct and behaviour.
Which Court Will Hear the Matter?
This offence is summary offence, which means that it will be finalised in the Local Court of New South Wales.
Possible Defences to a DUI charge
The following defences may be available for a High Range Drink Driving charge:
- That your were not “under the influence”;
- That you were not the driver of the vehicle;
- That you were not “driving” as defined by the Act;
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Angela Cooney
Angela Cooney is the National Practice Director of Criminal Law at Armstrong Legal and is an Accredited Criminal Law Specialist. Angela is a confident and formidable advocate for her clients. She commonly appears in very complex and serious matters but is able to assist clients with all kinds of criminal and traffic offences. Angela is an experienced court advocate having...
Common Questions about DUI Charges:
When a person is charged with a drinking driving offence, such as driving with low-range, mid-range or high-range BAC, there must be evidence of what the person’s blood alcohol content was. This is usually the result of a breath analysis conducted by the police.
When a person is charged with DUI, there does not need to be evidence of what their BAC was. It is also not necessary for them to have been over 0.0.5. It is enough to prove that they were under the influence of a drug or alcohol. Evidence adduced to establish this may be the testimony of police officers who observed the person’s driving, speech, behaviour, gait, smell and other features of their appearance or behaviour that led them to form the view that the accused person was intoxicated.
In almost all cases, a person who is found guilty of a DUI they will receive a conviction. The penalties for this offence are of equivalent seriousness to High Range Drink Driving.
If the court is convinced that it is expedient not to convict an offender, the matter may be dismissed under Section 10(1)(a) or with a Conditional Release Order without conviction under Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 but this is very rare.
If a person has already received a non-conviction order within the last five years for any similar offence, Section 203 of the Road Transport Act 2013 prevents a non-conviction order from being available to them again.
In NSW, a court can impose any of the following penalties for a DUI charge:
- Gaol Sentence
- Intensive Corrections Order (ICO)
- Community Corrections Orders (CCO)
- Conditional Release Order with conviction (CRO)
- Fine
- Conditional Release Order without conviction (CRO)
- S10A
- Section 10
The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for DUI charge might jeopardise your job or make it difficult to obtain visas for overseas travel.
If you receive anything other than a Conditional Release Order without conviction (a “section 10”) you will lose your licence. It is incredibly rare to get this penalty for a DUI charge.
DUI charges are serious and there is often a real risk of a gaol sentence, even if this is your first offence. The risk is greater if it is your second or subsequent major driving offence offence, or if there are circumstances that increase the seriousness of the matter (like a crash or collision). This is why it is incredibly important that you get assistance from a drink driving lawyer.