Low Range Drink Driving
In New South Wales, it is an offence under Section 110(3) of the Road Transport Act 2013 to drive with a Low Range Prescribed Concentration of Alcohol (PCA). This offence is committed when a person drives a motor vehicle on a road or road related area with a blood alcohol concentration (BAC) of 0.05 to 0.079. The offence is also known as low range drink driving. This page outlines the penalties for this offence in New South Wales.
Infringement or court attendance notice
When a person is caught driving with a low range PCA , police can issue either:
- an infringement/penalty notice, carrying a fine of $603; or
- a court attendance notice.
It is up to the discretion of the police whether they deal with a person’s first offence by way of a penalty notice or a Court Attendance Notice. However, an infringement/penalty notice is not available for a person’s second or subsequent low range drink driving offence.
Low Range PCAs by Infringement Notice
A penalty notice is not a criminal conviction. The offence is only recorded against your traffic record, not your criminal record. Further, if you receive an infringement/penalty notice, you are not required to attend court for the offence. The infringement notice amount for a Low Range PCA offence is $603.00 and does not involve any demerit points.
Where a Low Range PCA is dealt with by an Infringement/Penalty notice, you should also expect to either:
- Receive an immediate licence suspension from the police for a period of three months, or
- After paying the penalty notice, receive a Notice of Suspension from Transport NSW suspending your licence for a period of three months under Section 59 of the Road Transport Act 2013.
If you receive a penalty notice, you have the option to make a court election on the offence and take the offence to court. A ‘Court Election’ is an election to have the traffic offence decided by a court (in the criminal jurisdiction), and requires the person electing to enter a plea of guilty or not guilty. Any conviction imposed by the court following a court election is recorded as a criminal conviction.
Court elections are often made by persons wishing to avoid a conviction penalty and/or an above Police Immediate Suspension. The court election process can be used to take the matter to court and seek a non-conviction penalty, where a non-conviction penalty is awarded, the Police Immediate Suspension will resolve or the person will be able to avoid the automatic and mandatory licence disqualification for the offence.
Low Range PCAs by Court Attendance Notice
If you are issued with a Court Attendance Notice, you are required to attend court to answer for the offence. The maximum penalties that apply depend upon whether the person is charged with a ‘first’ or ‘second/subsequent offence’. Where a person has been charged with the new Low- Range PCA offence, this new offence is considered to be a second or subsequent offence only if (within a period of five years) that person was convicted of a previous offence that was either; an offence against the same provision, an offence against a former corresponding provision, or an equivalent offence.
For first offences, there is a maximum penalty of a $2,200.00 fine with an automatic and mandatory licence disqualification on conviction of between three and six months.
For second/subsequent offences, the maximum penalty of a $3,300.00 fine applies together with a mandatory interlock order upon conviction. A mandatory interlock order for a low-range offence imposes a two-fold system, it will first disqualify the licence for a period of between one and three months, and then require the driver to obtain an interlock licence and have an interlock device installed into their vehicle for a period of 12 months.
If you receive a Court Attendance Notice for this offence and are convicted by the court, such will be a conviction on your criminal record.
Will I Be Convicted?
When the court is considering whether a non-conviction penalty is appropriate, it must apply the matters listed in Section 10(3) of the Crimes (Sentencing Procedure) Act 1999, which includes the circumstances of the offender, the trivial nature of the offence, any extenuating circumstances regarding the offence and any other matter the court considers relevant (including an early guilty plea, participation in a traffic offender program, etc).
Whether or not you are convicted for a low-range drink driving offence will depend upon the application of the above provision, the circumstances of the offence and your existing criminal and traffic record.
In our experience, courts treat drink driving matters very seriously due to the potential danger posed to the community, accordingly, the most likely sentencing outcome is a fine penalty which involves a criminal conviction.
For advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Sophie Ogborne
Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...