WHAT HAPPENS IF YOU’RE CHARGED WITH DRINK DRIVING IN NSW?

Drink driving, also known as driving with a prescribed concentration of alcohol (PCA), is one of the most serious traffic offences in New South Wales (NSW). A charge can have profound consequences, including fines, licence disqualification, imprisonment, and a criminal record, potentially affecting your employment, travel, and personal life. With strict enforcement under NSW’s Road Safety Plan 2021, understanding the legal implications, penalties, and steps to take if charged is critical for protecting your rights and mitigating penalties. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we specialise in criminal law and traffic law, providing expert legal representation to defend clients charged with drink driving in Sydney. As leading Sydney criminal lawyers and traffic law specialists, we are dedicated to achieving the best possible outcome in NSW courts, whether through defences, non-conviction outcomes, or reduced penalties.

In this comprehensive guide, we explore what happens if you’re charged with drink driving in NSW, detailing the legal framework, penalties, defences, court process, and practical steps to take.

Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship. For legal Advice, please be sure to contact our office at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au.

The Legal Definition of Drink Driving in NSW

Drink driving in NSW is primarily governed by section 110 of the Road Transport Act 2013, which prohibits driving or attempting to drive a vehicle with a blood alcohol concentration (BAC) above the legal limit, measured in grams of alcohol per 100 millilitres of blood. The offence is categorised based on BAC levels and licence type:

• Novice Range: BAC > 0.00 for learner, provisional (P1/P2), or special category drivers (e.g., taxi, bus, heavy vehicle).
• Special Range: BAC > 0.00 but ≤ 0.02 for specific drivers (e.g., bus or heavy vehicle operators).
• Low Range: BAC 0.05–0.079 for full licence holders.
• Mid Range: BAC 0.08–0.149.
• High Range: BAC ≥ 0.15.

Additionally, section 112 covers driving under the influence (DUI) of alcohol without a specific BAC, based on police observations of impairment (e.g., erratic driving, slurred speech). Drink driving is a strict liability offence, meaning the prosecution only needs to prove the BAC exceeded the limit, not that you were impaired, for PCA charges.

To secure a conviction, the prosecution must prove beyond a reasonable doubt:

1. You Were Driving: Operating or attempting to operate a vehicle on a road or road-related area.
2. BAC Exceeded Limit: Your BAC was above the legal limit for your licence type, confirmed by breath or blood analysis.
3. Lawful Testing: The test was conducted correctly within legal timeframes (e.g., within 2 hours for breath analysis, section 14).

Drink driving cases are typically prosecuted as summary offences in the Local Court (e.g., Downing Centre Local Court, Parramatta Local Court, Liverpool Local Court, or Campbelltown Local Court). Enforcement has intensified under the Road Safety Plan 2021, with increased random breath testing (RBT) and mandatory interlock programs for serious offences.

Examples of Drink Driving Scenarios

• Low-Range PCA: A full licence holder with a BAC of 0.06 after two drinks at a social event.
• Mid-Range PCA: A driver with a BAC of 0.10 after a night out, stopped at an RBT.
• High-Range PCA: A driver with a BAC of 0.16, facing immediate police suspension.
• Novice Range: A P1 driver with a BAC of 0.01, breaching the zero-tolerance limit.
• DUI: A driver showing signs of impairment (e.g., swerving) without a BAC test, charged based on police observations.

Penalties for Drink Driving in NSW

Penalties for drink driving under section 110 vary by BAC range, offence history, and licence type, as of August 22, 2025 (one penalty unit = $110). Below are the penalties for first and subsequent offences within five years.

Low-Range PCA (BAC 0.05–0.079, Full Licence)

• First Offence:
  • Maximum Fine: $2,200 (20 penalty units).
  • Maximum Imprisonment: None.
  • Licence Disqualification: Automatic 6 months (minimum 3 months).
  • Demerit Points: 3 points.
• Subsequent Offence:
  • Maximum Fine: $3,300 (30 penalty units).
  • Maximum Imprisonment: None.
  • Licence Disqualification: Automatic 12 months (minimum 6 months).
  • Demerit Points: 3 points.

Mid-Range PCA (BAC 0.08–0.149)

• First Offence:
  • Maximum Fine: $3,300 (30 penalty units).
  • Maximum Imprisonment: 9 months.
  • Licence Disqualification: Automatic 12 months (minimum 6 months).
  • Mandatory Interlock: 12–24 months post-disqualification (cost ~$2,200–$2,500 annually, section 211).
• Subsequent Offence:
  • Maximum Fine: $5,500 (50 penalty units).
  • Maximum Imprisonment: 12 months.
  • Licence Disqualification: Automatic 3 years (minimum 12 months).
  • Mandatory Interlock: 24–48 months.

High-Range PCA (BAC ≥ 0.15)

• First Offence:
  • Maximum Fine: $3,300 (30 penalty units).
  • Maximum Imprisonment: 18 months.
  • Licence Disqualification: Automatic 3 years (minimum 12 months).
  • Mandatory Interlock: 24–48 months.
• Subsequent Offence:
  • Maximum Fine: $5,500 (50 penalty units).
  • Maximum Imprisonment: 2 years.
  • Licence Disqualification: Automatic 5 years (minimum 2 years).
  • Mandatory Interlock: 48–60 months.

Novice/Special Range (BAC > 0.00 for Learners, P1/P2, or Special Drivers)

• First Offence:
  • Maximum Fine: $2,200 (20 penalty units).
  • Maximum Imprisonment: None.
  • Licence Disqualification: Automatic 6 months (minimum 3 months).
  • Demerit Points: 3 points.
• Subsequent Offence:
  • Maximum Fine: $3,300 (30 penalty units).
  • Maximum Imprisonment: None.
  • Licence Disqualification: Automatic 12 months (minimum 6 months).
  • Demerit Points: 3 points.

DUI (No Specific BAC, Based on Impairment)

• First Offence:
  • Maximum Fine: $3,300 (30 penalty units).
  • Maximum Imprisonment: 18 months.
  • Licence Disqualification: Automatic 3 years (minimum 12 months).
• Subsequent Offence:
  • Maximum Fine: $5,500 (50 penalty units).
  • Maximum Imprisonment: 2 years.
  • Licence Disqualification: Automatic 5 years (minimum 2 years).

Additional Consequences

• Immediate Suspension: Police may suspend your licence on the spot for high-range PCA or DUI (section 224).
• Criminal Record: Convictions remain for 10 years (3 for juveniles) unless spent (Criminal Records Act 1991).
• Employment Impact: Job loss for professional drivers (e.g., taxi, truck operators).
• Insurance Increases: Higher premiums or policy denials.
• Travel Restrictions: Countries like the USA may deny entry for criminal convictions.
• Vehicle Impoundment: Police may seize your vehicle (section 239).
• Civil Liability: If the driving causes an accident, victims can sue for damages (Civil Liability Act 2002).

Sentencing Considerations: Under section 21A, Crimes (Sentencing Procedure) Act 1999, courts consider aggravating factors (e.g., high BAC, endangering others) and mitigating factors (e.g., remorse, Traffic Offender Intervention Program (TOIP) completion, costing $150–$200).

Example: A first-time mid-range PCA offender faces a $2,000 fine, 9-month disqualification, and 12-month interlock, impacting their job as a delivery driver.

Defences to Drink Driving Charges

A Sydney criminal defence lawyer can raise several defences to challenge a drink driving charge:

1. Unlawful Testing: Breath or blood test conducted improperly (e.g., outside the 2-hour window, section 14, or without reasonable suspicion, section 36, LEPRA).
2. Testing Errors: Faulty breathalyser or lab errors affecting BAC results.
3. Medical Conditions: Conditions like diabetes causing false positives.
4. Necessity: Driving to avoid immediate harm (e.g., medical emergency).
5. Duress: Coerced into driving under threat.
6. Mistake of Fact: Reasonably believing you were under the BAC limit (section 9, Criminal Procedure Act 1986).
7. Mental Health Diversion: Treatment under section 14, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 if a condition contributed.
8. Unlawful Police Conduct: Exclude evidence obtained illegally (section 138, Evidence Act 1995).

A successful defence can lead to a dismissal or a non-conviction outcome like a section 10 dismissal or Conditional Release Order (CRO) under the Crimes (Sentencing Procedure) Act 1999, avoiding a criminal record and disqualification.

Example: A driver with a low-range PCA secures a section 10 dismissal by proving a medical condition caused a false BAC reading.

The Court Process for Drink Driving Charges

The court process for drink driving is typically handled as a summary offence in the Local Court:

1. Arrest or Court Attendance Notice (CAN): Police may arrest you under section 99 of LEPRA or issue a CAN for a court appearance. High-range PCA triggers immediate suspension (section 224).
2. Bail Application: If arrested, a lawyer applies for bail under the Bail Act 2013, arguing low flight risk.
3. Court Mention: Enter a plea (guilty or not guilty) in the Local Court. Guilty pleas may proceed to sentencing; not guilty pleas schedule a hearing.
4. Hearing or Sentencing:
   1. Not Guilty: The court examines evidence (e.g., breath analysis, police statements) to determine guilt.
   1. Guilty/Convicted: The magistrate imposes penalties, considering mitigating factors like TOIP completion or remorse.
5. Appeals: Challenge convictions or penalties in the District Court within 28 days (Crimes (Appeal and Review) Act 2001).

Example: A driver pleads guilty to low-range PCA, completes TOIP, and receives a section 10 dismissal, avoiding a conviction.

Steps to Take if Charged with Drink Driving

If charged with drink driving, immediate action is essential to protect your rights and minimise penalties. Here’s what to do:

Step 1: Remain Calm and Cooperate

• Stay calm when stopped by police and provide your details without admitting guilt. Submit to RBT as required (section 13).
• Request a lawyer if arrested (section 123, LEPRA).

Step 2: Cease Driving Immediately

• If suspended on the spot, arrange alternative transport (e.g., taxi, rideshare). Driving while suspended risks charges under section 54 (up to $5,500 fine, 12 months imprisonment).

Why?: Further driving escalates penalties and charges.

Step 3: Engage a Sydney Traffic Lawyer

• Contact a specialist lawyer like Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or 0427 101 499 for a free consultation. A lawyer assesses defences, applies for bail, or requests a stay of suspension (section 267).

Why?: Early intervention can lead to dismissals or reduced penalties.

Step 4: Gather Evidence and Information

• Collect documents related to the incident (e.g., police reports, breath analysis results).
• Document mitigating circumstances (e.g., medical conditions, emergencies).
• Obtain your traffic record from Service NSW to verify prior offences.
• Prepare 2–3 character references and an apology letter to show remorse.

Why?: Evidence supports defences like testing errors or necessity.

Step 5: Complete the Traffic Offender Intervention Program (TOIP)

• Enrol in TOIP ($150–$200) to demonstrate rehabilitation, which can mitigate penalties or support a section 10 dismissal.

Why?: Courts view TOIP completion favourably for sentencing.

Step 6: Prepare for Court

• Attend the court date specified in the CAN, typically a mention in the Local Court.
• With your lawyer, decide on a plea:
  • Not Guilty: Contest the charge at a hearing.
  • Guilty: Plead early for a sentencing discount (up to 25% under section 22, Crimes (Sentencing Procedure) Act 1999).
• Present mitigation, such as TOIP completion or hardship (e.g., job loss).

Why?: Preparation can secure non-conviction outcomes or reduced penalties.

Step 7: Comply with Court Outcomes

• If convicted, comply with penalties (e.g., fines, disqualification, interlock).
• If dissatisfied, appeal to the District Court within 28 days.
• Apply for a spent conviction after 10 years crime-free (Criminal Records Act 1991).

Why?: Compliance prevents further charges, and appeals offer a second chance.

Step 8: Prevent Future Offences

• Avoid alcohol before driving, using a personal breathalyser if needed.
• Enrol in defensive driving or alcohol education programs.
• Address underlying issues (e.g., alcohol dependency) through counselling.

Why?: Preventing recurrence avoids future charges and suspensions.

Example: A driver charged with mid-range PCA engages a lawyer, completes TOIP, and secures a section 10 dismissal, avoiding a conviction and disqualification.

How a Sydney Traffic Lawyer Helps

At Nicopoulos Sabbagh Lawyers, we:

• Assess Defences: Identify grounds like unlawful testing or necessity.
• Gather Evidence: Compile breath analysis records, medical evidence, and references.
• Apply for Bail: Secure release if arrested (Bail Act 2013).
• Negotiate Plea Deals: Reduce charges (e.g., high-range to mid-range PCA).
• Secure Non-Conviction Outcomes: Advocate for section 10 dismissals or CROs.
• Present Mitigation: Highlight remorse, TOIP completion, and hardship.
• Navigate Courts: Manage cases amidst disruptions like the Downing Centre closure.
• Appeal Refusals: Challenge outcomes in the District Court.

Example: We reduced a high-range PCA to mid-range for a client, securing a 6-month disqualification instead of 3 years.

Why Choose Nicopoulos Sabbagh Lawyers?

We offer:

• Specialised Expertise: Deep knowledge of the Road Transport Act 2013 and Crimes Act 1900.
• Proven Results: Securing dismissals, reduced penalties, and overturned suspensions.
• Ethical Representation: Adhering to Legal Profession Uniform Law (NSW).
• Accessible Support: Contact us at info@nslaw.net.au, 0427 101 499, or www.nslaw.net.au.

Conclusion

Being charged with drink driving in NSW can lead to fines up to $5,500, imprisonment up to 2 years, and disqualifications up to 5 years, with mandatory interlock for serious offences. Immediate action, such as engaging a lawyer and gathering evidence, is crucial to challenge charges or secure non-conviction outcomes. At Nicopoulos Sabbagh Lawyers, our Sydney criminal lawyers and traffic law specialists provide expert representation to protect your driving privileges and future. Contact us today at info@nslaw.net.au, 0427 101 499, or 02 9793 7016, or visit www.nslaw.net.au for assistance.

Why Choose Nicopoulos Sabbagh Lawyers Criminal Lawyers & Traffic Lawyers YOUR Leading Sydney Criminal Defence & Traffic Lawyers to represent you in your Traffic Law Matter?

Nicopoulos Sabbagh Lawyers are the leading Law firm in Traffic Law matters as our office appears at ALL Courts in NSW on a regular basis in ALL Traffic Law matters.  No matter is too complex for Nicopoulos Sabbagh lawyers, your Traffic Sydney Lawyers, so be sure to book your first Free Consultation today!

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It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court. 

Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact your Sydney Lawyers, Nicopoulos Sabbagh Lawyers.

_{*This article correctly reflects the Laws of NSW as of 25^th August 2025.}

_{*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship}