In May 2019, the New South Wales Government made changes to laws which impact all drivers in New South Wales who commit the offence of driving with a blood alcohol concentration which falls into the low range category. Low range means a blood alcohol concentration of 0.05 grams or more but less than 0.08 grams.
Change in Legislation
From 20 May 2019, if you commit the offence of low range drink driving (with the offence being your first offence), the Police now have the choice to: either issue you with a Court Attendance Notice or issue you with a penalty notice and suspend your driver's licence immediately for a period of three months. Currently, the amount for the penalty notice that is issued is $572.00.
These changes also apply to the offences of driving with a novice range of blood alcohol concentration and a special range of blood alcohol concentration. These offences most commonly apply to learner drivers and P1 and P2 drivers. (Novice range means a blood alcohol concentration of more than zero grams, but less than 0.02 grams. Special range means a blood alcohol concentration of 0.02 grams or more but less than 0.05 grams.)
Prior to 20 May 2019, if you committed the offence of low range drink driving, you would have been issued with a Court Attendance Notice. This Court Attendance Notice required you to attend court on a specified date. If you entered a plea of guilty or were found guilty of the offence, the Magistrate would have made a decision in relation to the penalty to be imposed.
The Offence
In New South Wales, you commit an offence of low range drink driving if you are found to have a blood alcohol concentration of 0.05 grams or more, but less than 0.08 grams. While there is present in the person's breath or blood the low range prescribed concentration of alcohol, it is an offence to:
- drive a motor vehicle; or
- occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion; or
- if the person holds a full drivers licence, occupy the set next to a learner driver who is diving the vehicle.
Your Options
If you are issued with a penalty notice and have your licence suspended immediately, two options are available to you:
- you can make an application to the court to appeal your suspension; or
- you can elect to have your offence determined by the court.
If you pay your penalty notice you lose the right to make application to the court to appeal your suspension. It is therefore very important that you get immediate legal advice as to what action you should take.
To appeal the suspension period, you must file an application with the court within 28 days from receiving your notice of suspension. The court requires you to provide grounds for your appeal which are your reasons why you require your licence. You must show the court that there are exceptional circumstances which justify the court varying or removing the suspension. Requiring your licence for work will not generally meet the requirement for exceptional circumstances.
If you want to elect to have the matter dealt with by the court, there are a number of factors you need to take into account:
- the maximum fine that can be imposed by the court for a low range drink driving first offence is $2,200.00; and
- the maximum suspension period that can be imposed by the court for a low range drink driving first offence is 6 months, with a minimum suspension period of 3 months; and
- It can take time for the court to list your charge and provide you with a court date.
Based on the above, the Magistrate does have the ability to increase the fine payable and can increase the suspension period above what is initially imposed by the Police.
However, if you do elect to have the offence dealt with by the court, the court does have the power to deal with the matter by way of a Conditional Release Order without a conviction being recorded in certain circumstances. This would result in you receiving your licence back and no suspension would be in place. You would be subject to the terms of the Conditional Release Order which generally include that you are to be of good behaviour, meaning you must not commit any further offences.
The Court's decision whether to deal with the offence by way of a Conditional Release Order without a conviction is completely discretionary and can depend on a number of factors, including but not limited to the details of the offence and the person's prior criminal history.
If you breach a Conditional Release Order by committing a further offence, you will be resentenced on your initial offence as well as the new offence which will likely result in higher penalties being imposed.
Given the complexities in relation to both options, you should obtain legal advice to ensure you are making an informed choice as to the most appropriate way to proceed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
