The New Drink Driving Penalties – A Must Know

Posted on January 23rd, 2015

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by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in  Commercial & Property Law.

The current penalty provisions

The most common forms of drink driving offences are found in Section 110 of the Road Transport Act and provide it is an offence to drive a motor vehicle when there is a prescribed concentration of alcohol present in the driver’s breath or blood. For the purpose of this alert we will focus solely on the Section 110 offences.

At present, a person convicted of a drink driving offence faces two classes of penalties. The first is the penalty which is imposed by the Court under the Crimes (Sentencing Procedure) Act (such as fines, bonds and imprisonment) and the second is disqualification of the person’s driver licence. Under the current legislation it is optional for some offenders to have some of the disqualification period suspended for participation in an interlock program.

The following table give some details relevant to the Section 110 offences:

Range Concentration Maximum Penalty Automatic Disqualification Minimum Disqualification
Novice range (L Plate) between zero and 0.02 grams*

$1,100 (first offence)

$2,200 (second or subsequent offence)

6 months (first offence)

12 months (second or subsequent offence)

3 months (first offence)

6 months (second or subsequent offence)

Special range (P Plate) between 0.02 and 0.05 grams*

$1,100 (first offence)

$2,200 (second or subsequent offence)

6 months (first offence)

12 months (second or subsequent offence)

3 months (first offence)

6 months (second or subsequent offence)

Low range between 0.05 and 0.08 grams*

$1,100 (first offence)

$2,200 (second or subsequent offence)

6 months (first offence)

12 months (second or subsequent offence)

3 months (first offence)

6 months (second or subsequent offence)

Middle range between 0.08 and 0.15 grams*

$2,200 &/or 9 months imprisonment (first offence)

$3,300 &/or 12 months imprisonment (second or subsequent offence)

12 months (first offence)

3 years (second or subsequent offence)

6 months (first offence)

12 months (second or subsequent offence)

High range 0.15 grams or more*

$3,300 &/or 18 months imprisonment (first offence)

$5,500 &/or 2 years imprisonment (second or subsequent offence)

3 years (first offence)

5 years (second of subsequent offence)

12 months (first offence)

2 years (second of subsequent offence)

*of alcohol in 210 litres of breath or 100 millilitres of blood

The new penalty provisions

The reasoning

The NSW government is implementing new penalty provisions for high range drink driving offenders and repeat drink-driving offenders, as well as certain other serious drink driving offenders.  The NSW Roads Minister, Duncan Gay, said “these penalties bring into account those drivers who take the greatest risks and put others at serious danger”. Mr Gay said:

“Interlock programs help offenders to learn how to separate their drinking from their driving, while enabling them to continue to access employment and essential services for their families… By providing a strictly monitored way back into licensing, interlock programs reduce the chance that offenders will drive unlicensed, and potentially under the influence, while disqualified.”

The overview

The new penalty provisions will see the introduction of a mandatory interlock program and results in a change to the automatic and minimum disqualification periods, as well as the addition of an interlock period.

The concept of a “mandatory interlock offence” has been created by the amendments. A mandatory interlock offence includes any second or subsequent drink driving offence by an offender as well as first-time high range drink driving offences. Under the amendments, when a court convicts a person of a mandatory interlock offence, it must make either a mandatory interlock order or an interlock exemption order.

The changes

The following table shows a summary of the changes relevant to the offences under Section 110 (note – penalties under Crimes (Sentencing Procedure) Act will still apply in addition to these)

Range Minimum Disqualification Maximum Disqualification Minimum Interlock Period
Novice range

3 months (first offence)

1 month (second or subsequent offence)

Automatic – 6 months (first offence)

3 months (second or subsequent offence)

12 months (second or subsequent offence)

Special range

3 months (first offence)

1 month (second or subsequent offence)

Automatic – 6 months (first offence)

3 months (second or subsequent offence)

12 months (second or subsequent offence)

Low range 3 months (first offence)1 month (second or subsequent offence)

Automatic – 6 months (first offence)

3 months (second or subsequent offence)

12 months (second or subsequent offence)

Middle range

12 months (first offence)

6 months (second or subsequent offence)

6 months (first offence)

9 months (second or subsequent offence)

2 years (second or subsequent offence)

High range

6 months (first offence)

9 months (second of subsequent offence)

9 months (first offence)

12 months (second of subsequent offence)

2 years (first offence)

4 years (second or subsequent offence)

The mandatory interlock order

A mandatory interlock order:

(a)    disqualifies a person from holding a driver licence for the minimum disqualification period applicable to the offence, or for such longer period (not exceeding the maximum disqualification period) as ordered by the court; AND

(b)   disqualifies a person from holding a driver licence for a period of five years unless the person has first held an interlock driver licence.

Practically speaking, this means once a person is convicted of a mandatory interlock offence, he/she is disqualified from driving for a relevant period of time and must then hold an interlock driver licence (and participate in the interlock program) for at least the relevant minimum interlock period. If a person fails to participate in the interlock program, he/she will be disqualified from driving for five years (commencing on the day of the conviction).

The interlock driver licence/interlock program

The interlock program aims to reduce drink-driving related deaths and injuries on our roads. It also aims to help reduce the personal and community cost of drink-driving related deaths and injuries.

Upon completion of the mandatory disqualification period an offender will be entitled to apply for a interlock driver licence; there will however be no entitlement to be issued with an interlock driver licence. In order for an interlock driver licence to be issued, an offender will need to consult a GP about alcohol use and have an interlock device installed into his/her motor-vehicle. Once an interlock driver licence is issued, the offender will then be permitted to drive that vehicle.

During the interlock program the offender’s performance of the program will be monitored. The driver will be required to provide breath samples at the start of and during each journey. If a zero reading is not provided, the vehicle will not start. From a practical perspective, if an interlock device is installed in a vehicle, any driver of the vehicle will need to provide a zero reading in order to have the vehicle start, even if they do not hold an interlock driver licence.

Sample data will be recorded by the interlock device and this data will be reviewed by Roads and Maritime Services and may result in referrals to the Fitness to Drive Assessment.

Upon completion of the program, and based on the performance of the program, the offender may:

a)      be granted an unrestricted driver licence;

b)      have his/her time in the interlock program extended; or

c)      have his/her licence suspended.

The cost of having an interlock device installed, maintained (and finally removed) can be quite considerable, reportedly costing around $1,200 for every six months of use. There will be limited financial assistance provided to eligible people for payment of these costs.

The interlock exemption order

An interlock exemption order is an order that exempts an offender from being subject to a mandatory interlock order. If the court orders an interlock exemption order, the disqualification periods provided for under the current penalty provisions (see first table above) will apply to the offender rather than the new provisions.

There are only very limited circumstances in which the court has power to order an interlock exemption order.

The court may only make an interlock exemption order if the offender proves to the court that he/she either does not have access to a vehicle in which to install an interlock device or has a medical condition (diagnosed by a registered medical practitioner) that prevents him/her from providing a sufficient breath sample to operate an interlock device and it is not reasonably practicable for an interlock device to be modified to enable him/her to operate the device.

The new provisions specifically state that an interlock exemption order must not be made merely because an offender:

  • cannot afford the cost of installing or maintaining an interlock device;
  • will be prevented from driving a vehicle in the course of his/her employment if the interlock exemption order is made; or
  • has access to a vehicle but the registered owner of the vehicle refuses to consent to installation of an interlock device.

This means if an offender cannot comply with a mandatory interlock order simply because of one of these reasons, that will not be sufficient for an exemption order to be made and the offender will be disqualified from driving for a period of five years.      

Conclusion

The new provisions which will come into operation on 1 February 2015 will result in significant changes to the penalties imposed on serious and repeat drink driving offenders. These penalties are designed to help drink drivers separate drinking and driving and to reduce the road safety risk posed by drinking and driving. The provisions attempt to strike a balance between the safety of road users and the need for individuals to drive in order to continue to access to employment and other essential services for their families.

Lana Black is a Solicitor at Mullane & Lindsay and practises in Commercial and Property Law as well as Criminal/Traffic Law. If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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