The Law

A mid range PCA offence is a drink driving offence requiring a driver to have present in his or her breath (or blood) the mid range “prescribed concentration of alcohol” (PCA) of 0.08 to 0.15.

Section 110(4) of the Road Transport Act 2013 (NSW)provides that a person must not, whilst the middle range (mid range) prescribed concentration of alcohol is present in their breath or blood:

1. drive a motor vehicle, or
2. if they hold an applicable licence –sit next to a learner driver who is driving a motor vehicle; or
3. occupy the driving seat of a motor vehicle and attempt to put it in motion.

Penalties

The penalties for a mid range PCA offence can be severe: a gaol term is possible.

Offences	Maximum Fine	Disqualification		Minimum Interlock Period	Maximum Gaol
		Automatic	Maximum
1st offence	$2,200	3 months	6 months	12 months	9 months
		Automatic	Maximum
2 or more	$3,300	6 months	9 months	24 months	12 months

The Court has some discretion regarding drink driving penalties and can vary the fine payable and reduce the disqualification period.

In suitable cases, the Court can decide to not convict the driver and instead, dismiss the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). If the Court dismisses the matter pursuant to section 10, then no fines or disqualification periods apply. However, section 10 is seldom applied to mid range charges.

What Is an Interlock Order?

A Court must make a Mandatory Interlock order when convicting someone for a mid range PCA offence. The Order requires you to obtain an “interlock drivers licence” and participate in the interlock program for a specified time.

The court can disqualify you for a minimum 3 months and a maximum 9 months (depending on whether it is your first or subsequent offence). After that, you will need to obtain an Interlock licence to return to the road. This licence must be held for as long as the Court orders (at least the minimum period in the above table).

If you are not granted an exemption by the court and you cannot or do not comply with the interlock order then you will be disqualified from driving for five years.

Defences

It is possible, albeit difficult, to defend a drink driving charge. Defences can arise in the following circumstances:

1. the police cannot prove that the driver was driving at the time of the alleged offence;
2. the driver is able to prove that the driver’s blood-alcohol level was below 0.08;
3. the police obtained a sample of breath more than two hours after the time the alleged offence was committed; and
4. the driver was not attempting to put the vehicle in motion.

Commentary

Although a term of imprisonment is a penalty available to the Courts for a mid range offence, it is the least likely result in most Mid Range matters that come before the Courts. However, a small percentage of offenders who have been convicted of mid range drink driving are imprisoned.

When sentencing an offender for a drink driving matter (or any serious traffic offence), the Court must consider “mitigating” and “aggravating” factors in determining what the penalty should be. Aggravating factors are matters specific to the particular case that make the offending more serious and/or, place the offender in the more serious category of offender. The greater the aggravating factors, the more severe the penalty will be.

Examples of aggravating factors that the Court may take into account in considering whether to impose a harsher penalty include:

1. where the driver has committed other offences at the same time;
2. where the driver drove erratically or had an accident;
3. the driver is a Provisional driver;
4. the blood-alcohol reading is at the higher end of the range;
5. there are passengers in the car.

It is important to obtain competent legal advice and representation when charged with any drink driving offence, to take steps to reduce the penalties imposed, when a defence is achievable, to consider the prospects of defending the charge. We have the experience to prepare your case and to persuade the Court to apply leniency in sentencing.

Contact us if you have been charged with mid range PCA.