Driving while under the influence of alcohol or any other drug NSW

What is driving while under the influence?

It is an offence under s 112 of the Road Transport Act 2013 (NSW) to drive or attempt to drive a motor vehicle while under the influence of alcohol or any other drug. This offence is also known as a DUI. A DUI is a conduct offence – which means there is no requirement for any specific consequences (for example: serious injury or death) to result from an offender's conduct.  

A  DUI charge is often used in situations when police are unable to comply with formal testing requirements. Compliance with those requirements would allow them to charge a person more specifically with a drink or drug driving offence. A common scenario a DUI arises from is after a major road accident when police are unable to get a blood sample within the statutory time limit (4 hours). 

The maximum penalties for a DUI conviction are the same as those for  high range drink driving offences. This means a DUI offence can attach one of the highest penalties available under the road traffic legislation scheme. Penalties for either a first or second/subsequent offence provide the possibility of imprisonment, and both carry long periods of licence disqualification. 

Elements of the offence:

There are four elements that must be proved by the prosecution for a person to be found guilty of a DUI:

1. A person was driving, attempting to drive, or supervising an L plater who was driving; 
2. A vehicle; and
3. Was under the influence of;
4. Alcohol OR any other drug  at the time.

1. In the context of this offence, "drive" has a very broad definition and includes controlling the steering, movement or  propulsion of a vehicle. There is no requirement that a person be in control or performing all three of these actions at the time they are engaged by police. 

2. Unlike other drink and drug driving offences, a DUI charge is not limited to motor vehicles. It encompasses all "vehicles" described under the act. The definition includes:

• Motor vehicles (including motorised bicycles, skateboards and scooters)
• Any other vehicle with wheels (but excluding railway vehicles)
• Tracked vehicles (like bulldozers)

This means an incredibly broad range of vehicles fall under this charge. The most common is obviously still motor vehicles but things like normal bicycles, skateboards and scooters could count as well.

3. "Under the influence" isn't given a specific definition in the Road Transport Act. However, it is clear that it is not related to any numerical level or concentration of alcohol or drug in someone's system. 

The focus is generally on observation of behaviour that indicates a person's mental or physical state is negatively influenced by alcohol or drugs. This commonly involves evidence of a person's speech, behaviour, appearance, smell or manner of driving. Importantly, it does not need to be shown that someone is incapable of driving properly to prove this offence.

4. In the Road Transport Act  "drug" is given a very wide definition. It covers:

• Alcohol
• Any prohibited drug listed in the Drug Misuse and Trafficking Act  (for example: cannabis, cocaine, heroin, ketamine, methylamphetamine, morphine, etc).
• Any other substance that is reasonably likely to deprive an ordinary person of their "normal mental or physical faculties" (this means taking legal medications could be enough to satisfy the offence).

Defences available:

Cannot be charged with a DUI after successfully submitting to a breath analysis test:

This defence applies only if you have been charged with driving under the influence of alcohol. If the DUI charge relates to a drug, whether a breath analysis test was performed or not is irrelevant. 

Schedule 3 of the Road Transport Act provides that once you have undergone a roadside breath test and then complied with officer directions to complete a further breath analysis test, you cannot  be charged under s 112 for driving under the influence of alcohol. 

Once police officers have an official reading of the alcohol concentration in your blood or breath, they only have the option to charge you with a specific drink driving offence – for example: middle range drinking driving.

Evidence of no or minimal alcohol or drug in system:

If you have been accused of driving under the influence while you have minimal or no alcohol or drugs in your system, it may be possible to produce your own independently obtained medical evidence to refute the prosecution claims. 

This will generally involve getting a blood test soon after the incident and possibly an expert pharmacological report to contend how little any drug or alcohol that might have been present in your system would have influenced your behaviour. This evidence could be used to get a charge withdrawn or reduced, or as part of a defended hearing. 

Honest and reasonable mistake of fact:

This defence is available to people who 'honestly and reasonably' believe they did not have sufficient alcohol or drugs in their system to negatively influence them. The 'honest' component of this defence is not too difficult a hurdle to get over – people often misjudge how 'sober' they are after taking drugs or drinking alcohol. However, the requirement that this belief be 'reasonable' is a higher bar to pass. The court has made it very clear that simply misjudging how much (or how little) you were influenced by drugs or alcohol is not a valid excuse.

However, there are circumstances where people can been found to have an honest and reasonable belief that they were not driving under the influence of alcohol or another drug. These circumstances will generally involve a level of involuntary consumption. The most likely scenario is when someone unknowingly consumes a food or drink that has been spiked with a drug or alcohol. The requirement to be "reasonable" is still important – if someone feels the ill-effects of a spiking incident and suspects they have been spiked, they are expected to take reasonable caution and avoid driving if their mental and physical abilities are negatively influenced.

Penalties:

The Road Transport Act  provides the maximum penalties available for first and second (or subsequent) DUI offences. It also attaches an automatic licence disqualification period. 

If you have been charged with driving under the influence of alcohol, a mandatory interlock order will also apply to both first and subsequent offences. Interlock orders override the minimum and automatic licence disqualification periods. This means if you are subject to an interlock order you will first face a much smaller period of disqualification and then a longer period on an interlock licence. 

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.