Drink Driving - Your Rights, Police Powers, Court Penalties
Author(s):LAC Lawyers
Publish Date: September 01, 2008
Am I required by the Police to submit to a breath test?
The simple answer is yes. Under Section 13 of the Road Transport (Safety and Traffic Management) Act 1999 (the “Act”) a police office may require you to submit to a breath test if the officer has reasonable cause to believe that you fall within the following grounds:
- you are or were driving a motor vehicle on a road or road related area, or
- you are or were occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
- being the holder of a driver licence, you are or were occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.
What happens if I do not stop my vehicle as requested by a police officer?
If you fail to stop your vehicle in accordance with the direction of a police officer then you will be liable to a maximum fine of $1,100.00.
What if I refuse to submit to a breath test?
If you fail to submit to a breath test in accordance with the direction of a police officer then the police office may exercise its powers to arrest you and you will also be liable to a maximum fine of $1,100.00.
What happens if the breath test is positive?
If the sample provides that you have in your blood more than 0.05 grams of alcohol in 100 millilitres of blood (for novice and special range see tables below) then the police have the power to arrest you in accordance with section 14 of the Act.
What happens once I am arrested?
The police may require you to submit to a breath analysis test at the police station or other place as considered desirable by the police officer in accordance with Section 15 of the Act.
What happens if I refuse to submit to a breath analysis test?
If you refuse to submit to a breath analysis test then you will be charged with high range PCA (prescribed concentration of alcohol) irrespective of your actual PCA. The maximum penalty fDisqualification MaximumDisqualification Automaticor this offence is a fine of $3,300.00 or imprisonment for 18 months or both (in the case of a first offence) or a fine of $5,500.00 or imprisonment for 2 years or both (in the case of a second or subsequent offence).
It should be noted that it is a defence if you were unable on medical grounds to submit to a breath analysis at the time.
What if I want to get an independent blood test done?
Under section 18 of the Act you may request at your own expense that the police officer arrange for a medical practitioner to take, in his or her presence, a sample of your blood, for analysis.
It should be noted that you will still be required to submit to a breath analysis.
Are there any circumstances where the police do not have the power to request a breath test and analysis?
There are four circumstances where the police can not require you to submit to a breath test or breath analysis. These are set out in Section 17 of the Act as follows:
- if you have been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of your treatment has been notified of the intention to make the requisition and the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the your proper care or treatment, or
- if it appears to the officer that it would, by reason of injuries sustained by you, be dangerous to your medical condition to undergo a breath test or submit to a breath analysis, or
- at any time after the expiration of 2 hours from the occurrence of the event by reason of which the officer was entitled to require you to undergo a breath test, or
- at your home.
What are the penalties for drink driving?
Novice Range PCA (0.00-0.02)
Special Range PCA (0.02-0.05)
Low Range PCA (0.05-0.08)
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Fine
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Imprisonment
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Minimum Disqualification
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Maximum Disqualification
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Automatic Disqualification
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First Offence
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$1,100.00
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N/A
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3 months
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6 months
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6 months
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Second Offence
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$2,200.00
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N/A
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6 months
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unlimited
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12 months
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There is no immediate licence suspension.
Mid Range PCA (0.08-0.15)
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Fine
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Imprisonment
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Minimum Disqualification
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Maximum Disqualification
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Automatic Disqualification
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First Offence
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$2,200.00
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9 months
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6 months
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unlimited
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12 months
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Second Offence
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$3,300.00
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12 months
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12 months
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unlimited
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3 years
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Immediate licence suspension applies.
High Range PCA (0.15 and higher)
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Fine
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Imprisonment
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Minimum Disqualification
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Maximum Disqualification
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Automatic Disqualification
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First Offence
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$3,300.00
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18 months
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12 months
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unlimited
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3 years
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Second Offence
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$5,500.00
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2 years
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2 years
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unlimited
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5 years
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Immediate licence suspension applies.
What will happen at Court and how will LAC Lawyers help me?
When you instruct LAC Lawyers to act for you we will provide you with a high quality, personalised and experienced service. We will meet you in conference, obtain your version of the facts to the offence, review the material relating to the offence, obtain all relevant personal information from you in order to minimise any penalties that may be imposed by the Court and advise you as to the prospects of success.
We will request that you provide to us references as to your good character and a letter from yourself explaining the circumstances of the offence, your need for your driving licence, your remorse, vow to never offend again and any other relevant factor. At Court the facts of the matter will be handed up to the Magistrate for his review along with your references, letter and driving record. We will dispute the facts if necessary.
We will then plead your case to the Magistrate explaining your personal circumstances including family, employment, financial, requirement for a driving licence, character and the offence itself.
Whilst you may expect to receive a penalty as specified in the table above the Court has the discretion to not convict a person. That is the offence is proven but dismissed in accordance with section 10 of the Crimes (Sentencing Procedure) Act). In such circumstance there would be no disqualification period imposed upon you.
Contact us now for Fast, Accurate and Timely legal advice
Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email
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