By Paul Gregoire and Ugur Nedim
In February 2018, NSW premier Gladys Berejiklian and then state roads minister Melinda Pavey launched the NSW Road Safety Plan 2021. It consists of a series of road safety goals with the aim of reducing driving risks and, in turn, road trauma.
The state priority target is to reduce road fatalities to 30 percent of 2008-2010 levels – or around 285 deaths annually – by this current year.
The program will then set new targets every ten years starting from 2026, with the aspirational target of zero fatalities by 2056.
Since the launch of the current targets in early 2018, there have been a number of bills passed by the Coalition government that have increased the penalties involved in drink and drug driving.
The last such bill created a new combined drink and drug driving offence and this law was passed just a fortnight ago.
So, we have decided to provide a rundown of the current drink driving and drug driving laws as of 3 March 2021.
Driving under the influence
The Motor Traffic Amendment Act 1915 (NSW) created the offence of driving under the influence (DUI) of alcohol in this state. While the Motor Traffic Amendment Act 1937 (NSW) added drugs to the offence.
In the late 1930s, DUI could see a driver fined £100 or sent to prison for 12 months.
These days, the offence of driving under the influence of alcohol or any other drug is contained in section 112 of the Road Transport Act 2013 (NSW) (the RTA). “Any other drug” relates to the prohibited drugs listed under schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
DUI offences commenced prior to the current roadside testing methods used to locate alcohol or drugs in a driver’s system were in place. And DUI laws still apply today in circumstances where a breath test can’t be carried out, yet there’s evidence suggesting that a driver was intoxicated behind the wheel.
Section 209 of the RTA defines DUI offences, and other drink and drug driving crimes, as major traffic offences.
Section 9 of the RTA stipulates that a second or subsequent offence occurs when another alcohol or drug-related driving offence has been committed within the previous five years before the new offence.
And if that initial offence was dealt with by means of a penalty notice, it still counts as a first offence.
DUI penalties were increased on 1 July 2018. A first DUI offence carries up to 18 months imprisonment and/or a fine of $3,300, while a second such offence can see a driver put away for up to 2 years and or fined $5,500.
Licence disqualification
Section 205 of the RTA sets out driver licence disqualification periods for alcohol and other drug-related driving offences.
First time DUI entails an automatic licence disqualification period of 3 years, but a court may drop this to 12 months, or increase it without limit.
For a second or subsequent offence, there’s a 5 year automatic disqualification period, which can be dropped to 2 years or increased without limit.
Mandatory interlock orders
Interlocks are devices linked to car ignition systems that prohibit drivers from using their vehicles unless they provide a breath sample without any presence of alcohol.
Mandatory periods of interlock use were applied to high-range drink driving offences in early 2015, and other such offences in late 2018.
The application of interlock periods involves a court setting a shorter driver licence disqualification time frame than what applies originally to a drink driving offence, on the proviso that a device is installed in a vehicle for a minimum of 12 months after the expiry of a disqualification period.
Refusal to follow a mandatory interlock order results in 5 years licence disqualification.
Section 211 of the RTA outlines mandatory interlock orders and the periods that apply to each drink driving offence.
A person convicted of a first time DUI alcohol-related offence, who is placed on an interlock order receives a minimum licence disqualification period of 6 months or a maximum of 12 months, with a minimum period of the approved interlock device being applied to their vehicle for 24 months.
For a second or subsequent DUI alcohol-related offence a minimum mandatory interlock period of 48 months can be set by the court, accompanied by a driver licence disqualification period of 9 to 12 months.
Prescribed concentration of alcohol (PCA)
In NSW, police testing for alcohol in a driver’s breath began in December 1968. At the time, the prescribed alcohol concentration limit was 0.08 grams of alcohol in 210 litres of breath or 100 millilitres of blood. And the test could only be applied after an accident or a driving offence.
In December 1980, the PCA drink driving limit was dropped to 0.05 grams. From December 1982, NSW police commenced random breath testing (RBT) trials. And from December 1985, RBT became a regular part of traffic law.
PCA limits are set out under section 108 of the RTA. For a novice driver – learner or provisional P1 or P2 plate holders – a drink driving offence implies a reading of more than 0.00 and under 0.02. For a special category licence holder, including a taxi or bus driver, the limit is 0.02 but less than 0.05.
Low range drink driving means a reading of more than 0.05 and less than 0.08 grams of alcohol. Mid-range drink driving is over 0.08 and less than 0.15 grams. And to be booked for a high range drink driving offence a driver’s PCA level must exceed 0.15.
PCA penalties
Section 224 of the RTA provides that police can immediately suspend the licence of a novice, special category or low-level drink driving offender. And in the case of a first-time offence, they receive a 3 month automatic licence suspension and an on-the-spot fine of $572, which means they avoid coming before a magistrate unless they elect to take the matter to court.
Section 110 of the RTA contains PCA offences and penalties. A first-time novice, special category or low-range drink driving offender, who proceeds to court with the matter, can receive a $2,200 fine, while second or subsequent offences automatically go to court and can be penalised $3,300.
The first-time offenders who go to court have an automatic and maximum 6 month licence disqualification period, which can be lowered to 3 months. And second or subsequent offenders receive a 12 month suspension, which can be dropped to 6 months or raised without limit.
Second time offenders in these lower level categories can have an interlock order applied. This results in a minimum licence disqualification of 1 month or a maximum of 3 months, along with a 12 month minimum period for an interlock device to be installed.
A driver caught with a mid-range PCA level for a first time can be sentenced to up to 9 months gaol and/or receive a fine of $2,200. A second or subsequent offence can lead to up to 12 months inside and/or a fine of $3,300.
In terms of disqualification, an immediate and automatic 12 month mid-range period applies. It can be dropped to 6 months or raised without limit. For a second or subsequent mid-range offence, there’s a 3 year disqualification, which can be dropped to 12 months or raised with no limit.
If an interlock order is applied to an initial mid-range drink driving offence, a minimum licence disqualification of 3 months or a maximum of 6 months applies, with a minimum interlock period of 12 months.
Second or subsequent mid-range offences carry 6 month minimum or 12 month maximum licence disqualification periods, accompanied by a 24 month interlock device period.
A high range drink driver can face up to 18 months prison for a first offence and/or a fine of $3,300. And a second or subsequent high range drink driving offender can be sentenced to 2 years gaol and/or receive a $5,500 fine.
An automatic and immediate licence disqualification of 3 years applies for high range drinking. A court can drop this to 12 months or hike it without limit. A second or subsequent high range offence results in 5 years licence disqualification, that can be dropped to 2 years and lifted with no limit.
A first time high range offender can receive an interlock order with a minimum 24 month application, following disqualification of between 6 to 9 months. And a second or subsequent high range offence results in 48 months with an interlock device after between 9 to 12 months licence disqualification.
Part 2 of the SCL series on NSW drink and drug driving laws looks at drug driving penalties and the newly created combination drink and drug driving offence.
