High Range Drink Driving (PCA)

Australian courts take drunk driving offences very seriously, and high range drink driving charges can result in fines and imprisonment.

Characterised as an attempt to drive a motor vehicle on a public road by someone with a blood alcohol concentration above 0.150, high range drink driving is a serious offence that will remain on your criminal record well into the future. Even if it is your first criminal conviction, drink driving or otherwise, a court is likely to fine and imprison an offender once they are proven guilty.

Despite the severity of its offence, it is possible to achieve a ‘section 10’ for high range DUI. That is, with the expertise of our team, LY Criminal Lawyers Sydney has successfully gotten previous clients a discharge of the matter without any recording of the conviction.

What is High Range Drink Driving?

High range drink driving, also referred to as high range PCA, is a criminal offence that occurs when an individual attempts to drive a motor vehicle on a public road while their blood alcohol concentration (BAC) is above 0.150.

Offenders are usually administered a breath test by police to clarify the level of BAC, performed often at the side of the road. The test is done by the driver breathing or speaking into a device which, when reading as a positive, means that the police will detain you at a police station for further breath analysis.

So long as the breath analysis is taken within two hours of driving, the reading at the time is determined to be the concentration of alcohol present in the driver’s blood at the time they were operating their vehicle.

Drink and Drug Driving Relevant Terms

There are several terms you will encounter in the case of being given a high range drink driving charge. Understanding these terms will allow you to comprehend your potential offences and the discussions surrounding them.

PCA: Prescribed Concentration of Alcohol

BAC: Blood Alcohol Concentration

Novice range PCA: A provisional or learner driver licence holder with a BAC above zero

Low range PCA: A driver with a BAC level between 0.05-0.079

Mid range PCA: A driver with a BAC level between 0.08-0.149

High range PCA: A driver with a BAC above 0.150

Special range PCA: A special category driver with a BAC above 0.02

Subsequent offence: Being charged with a similar or identical offence you have previously been convicted for

High Range Drink Driving Penalties in NSW

High range drink driving offences are serious criminal offences, met with equally severe penalties. These penalties go above just licence disqualification, with even a first offence having the possibility of incurring a criminal conviction and a prison sentence.

First Time Drink Driving Offence

The maximum penalty for high range drink driving, if it is your first major traffic offence within 5 years, is a fine of $3,300.00 and/or 18 months imprisonment. Although this is a substantial fine, and no one looks forward to a possible prison sentence, most drivers charged with this offence are concerned with the immediate disqualification of their licence.

If you are found guilty of high range drink driving, you will face an automatic disqualification period of your licence for 3 years. Furthermore, you may face a maximum disqualification period when found guilty, which is unlimited. While the minimum period is 12 months, no option is great for those who drive regularly, and it is impossible to deter unless the matter is dealt with according to Section 10 of the Crimes (Sentencing Procedure) Act.

Beyond licence disqualification, those found guilty of high range drink driving will also be required to participate in the alcohol interlock program. An interlock device will also be fitted to your car for 2 years, which prevents the car from starting unless you provide a zero-alcohol breath sample.

While it is highly unusual for drivers charged with a High Range PCA offence to be dealt with under section 10 because of the Guideline Judgement of the NSW Court of Criminal Appeal (see below), it is not impossible. In fact, if your matter is dealt with under section 10, and it is successful, you will not be disqualified from driving.

Second or Subsequent Drink Driving Offence

The maximum penalty for a High Range drink driving offence, if it is your second or subsequent major offence within 5 years, is a fine of $5,500.00 and/or 2 years imprisonment. The offence does not have to pertain to high range drink driving, but also any other major traffic offence.

The court can also impose an unlimited maximum licence disqualification period, or a minimum one of 2 years, unless your defendant is successful in their pursuit of section 10 of the Crimes (Sentencing Procedure) Act.

Anyone who begins driving once their disqualification period has ended will need to be fitted with an interlock device for 4 years. However, much like a first offence, if your matter is dealt with under section 10, you will not be disqualified from driving.

Drink Driving Penalties

High Range Drink Driving Case Studies

High Range Drink Driving Sentencing Statistics

The table below includes the official high range drink driving sentencing statistics within NSW, gathered from 15,447 cases. They were initially published by the Judicial Commission of NSW, and gathered together here for your viewing.

High Range Drink Driving: The Guideline Judgement

Since 2004, the NSW Court of Criminal Appeal has provided judicial officers a guideline judgement to follow when sentencing offenders for High Range PCA offences. The court identified the characteristics of an ordinary High Range PCA case to provide a basis for future judgements. They also outlined the characteristics of cases where the moral culpability of an offender was increased, as to cover all bases.

The court held an ordinary case included where:

The ordinary case constructed by the NSW Court of Criminal Appeal includes the set guidelines of:

1. There was a random breath test;
2. The offender has prior good character;
3. The offender has nil, or a minor, traffic record;
4. The offender’s licence was suspended on detection;
5. The offender pleaded guilty;
6. There is little or no risk of re-offending;
7. The offender would be significantly inconvenienced by a loss of licence.

However, this list of factors does not consider the personality of the offender, which should be appealed for by a good lawyer. At LY Lawyers, your good character, prior traffic record, and any other useful subjective features such as mental or physical health can be utilised to qualify for section 10.

The court held in an ordinary case:

1. An order pursuant to section 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
2. A conviction cannot be avoided only because the offender has attended, or will attend, a driver education or awareness course such as the Traffic Offenders Program;
3. The automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification. Good reasons include:

1. a)  The nature of the offender’s employment;
2. b)  The absence of any viable alternative transport;
3. c)  Sickness or infirmity of the offender or another person.

 The court held in an ordinary case of a second or subsequent offence:

1. An order under section 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
2. An order under section 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
3. Where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.

The court held the moral culpability of a High Range PCA offender is increased by:

1. The degree of intoxication above 0.150;
2. Erratic or aggressive driving;
3. A collision whether with another vehicle or any other object;
4. Competitive driving or showing off;
5. The length of the journey at which others are exposed to risk;
6. The number of persons put at risk by the driving.

The court held that in cases where the moral culpability of a High Range PCA offender is increased:

1. An order under 9 or s10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
2. Where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.

The court held that in a case where the moral culpability of the offender of a second or subsequent offence is increased:

1. A sentence of any less severity than imprisonment of some kind would generally be inappropriate;
2. Where any number of aggravating factors are present to a significant degree or where the prior offence is a High Range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

Possible Defences to a High Range PCA offence

1. Breath analysis not taken within two hours of driving – The police must prove that you had a blood alcohol concentration alleged at the time you were driving. The law requires that the breath analysis occurs within 2 hours of driving.
2. The law prohibits the police from demanding a breath test of a driver at their home. Home includes any part of the property.
3. You were not the driver. As with any criminal offence, the police must prove it was in fact you who committed the offence.