Mid Mountains Legal Blog

Low Range Drink Driving (NSW)

Anthony Steel

It is an offence In New South Wales to drive with a Low Range Prescribed Concentration of Alcohol (PCA) (s.110(3) Road Transport Act 2013). The offence (also known as low range drink driving) 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.

Infringement or Court Attendance Notice

The police have discretion as to whether they deal with someone’s first offence by way of either:-

  1. an infringement/penalty notice, carrying a fine (only available for a first low range drink driving offence); or
  2. a court attendance notice.

Low range PCAs by Penalty Notice

A penalty notice is not a criminal conviction: the offence is recorded against your traffic record but not your criminal record. If you receive a penalty notice, you need not attend court. The penalty notice amount for a Low Range PCA offence is $644.00 with no demerit points.

Where a Low Range PCA is dealt with by a penalty notice, you should either:

  1. Receive an immediate licence suspension from the police for a three month period, or
  2. After paying the penalty notice, receive a Notice of Suspension from Transport NSW suspending your licence for a period of three months (s.59 Road Transport Act 2013).

If you receive a penalty notice, you can make a court election and have the traffic offence decided by a court (in the criminal jurisdiction) where you must enter a plea of guilty or not guilty. A conviction imposed by the court following a court election is recorded as a criminal conviction.

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. The applicable maximum penalties depend on whether you are charged with a ‘first’ or ‘second/subsequent offence’. If the charge is the new Low- Range PCA offence, this is considered to be a second or subsequent offence only if (within a period of five years) you were convicted of a previous offence that was either;

  1. an offence against the same provision;
  2. an offence against a former corresponding provision; or
  3. an equivalent offence.

For first offences, there is a maximum penalty of a $2,200.00 fine and an automatic and mandatory licence disqualification of between three and six months.

For second/subsequent offences, there is a maximum penalty of a $3,300.00 fine and a mandatory interlock order upon conviction. A mandatory interlock order for a low-range offence:

  1. disqualifies your licence for one to three months, then
  2. requires that you obtain an interlock licence and have an interlock device installed in your vehicle for 12 months.

If you receive a court attendance notice for this offence and the court convicts you, the conviction will appear on your criminal record.

Will I be convicted?

When the court is considering whether a non-conviction penalty is appropriate, it must take into account matters listed in s.10(3) of the Crimes (Sentencing Procedure) Act 1999 which include:

  1. any extenuating circumstances regarding the offence;
  2. the circumstances of the offender;
  3. the trivial nature of the offence; and
  4. any other matter the court considers relevant (including participation in a traffic offender program, an early guilty plea etc).

Whether or not you are convicted for a low-range drink driving offence depends on application of the above provision, your traffic and criminal record, and the circumstances of the offence.

Courts treat drink driving matters very seriously due to the potential danger posed to the community.

Where to now?

If you have been charged with low range PCA, contact us for advice or representation.

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