How to avoid a Drink Driving Conviction
What is a PCA and DUI offence?
PCA is an abbreviation for Prescribed Concentration of Alcohol also known as Blood Alcohol Concentration (BAC). A DUI offence refers to Driving Under the Influence of alcohol or other intoxicating drugs.
A PCA offence is committed when a person has driven, is driving or has occupied the driver seat of a motor vehicle with the intention to drive whilst their blood alcohol reading is more than the legal limit.
The legal limit is set in accordance with the type of driver licence you hold, for example the learner driver alcohol limit is different to an unrestricted driver limit.
A DUI offence also occurs when a person has driven, is driving or has occupied the driver seat of a motor vehicle with the intention to drive. However, it is different to a PCA offence because a substance or drug is affecting or influencing the driver’s ability to drive. For example, this may be where a person shows the symptoms of being intoxicated and fails a sobriety test performed by police. A DUI offence also includes driving under the influence of prohibited narcotics such a methamphetamine or ‘ICE’. It may also be the case where the person has used cannabis which has stayed in their blood days or weeks later without any side effects.
Below is a table of the PCA offence categories and the corresponding PCA reading:
PCA offence category
PCA reading (grams per 100 millilitres of blood)
|High range||Above 0.15|
|Middle range||Between 0.08 and 0.149|
|Low range||Between 0.05 and 0.079|
|Special range (restricted licence drivers including learner and provisional drivers)||Between 0.02 and 0.049|
|Novice range (Learner, provisional and unlicensed drivers)||Between 0.00 and 0.019|
How do I prepare for a Drink Driving Court case?
PCA offences are one of the most common types of offences before New South Wales Local Courts. If you are to sit in any Local Court in NSW you are almost certainly going to witness someone asking for a lenient sentence for committing a PCA offence.
For the typical offender, repeat offending is generally not a major concern as most offenders are good, regular, hard-working people. That means most people are of good character but have made a bad decision.
There is a guideline judgement from the Court of Criminal Appeal which is the law that guides how Magistrates and Judges should sentence offenders. It also guides solicitors in how they advise their clients and prepare their case. The guideline judgement states that between 1996-2001, 77 percent of the 5,700 people convicted of a PCA offence had no prior conviction for a PCA offence. This means that repeat offending is of less importance than the need for general deterrence in the community. When you are in court you may hear the phrase ‘general deterrence’. It means discouraging others in the whole community to commit an offence by fear of a penalty.
As a result of PCA offences being so common, preparing a case that sets you apart from the many others should be your greatest concern. Collecting evidence and developing a strong argument requires the expertise of a criminal lawyer.
What happens after I have been charged with a PCA or DUI offence?
Once you have been charged with a PCA offence your will be given a Court Attendance Notice also known as a ‘CAN’. This will specify a court date which you will be required to attend. Before this time you should speak to a lawyer and consider what your options are. Are you going to plead not guilty or guilty?
If you arrive at court on the required date and are unsure what you are going to plead the Magistrate may allow you to ‘adjourn’ or postpone your case to another day. However, the Magistrate does have the power to force you to deal with your case on that date, unless you have a very good reason to delay the court. If you are unprepared and have not obtained legal advice you may not know what you should plead. You may plead guilty without realising you have a defence available. You may not know what evidence you need to give the Magistrate to assist your case. Without seeking legal advice you could lose any chance you had of avoiding a conviction, keeping your licence, and avoiding a large fine. In the most serious cases, you may even face harsh penalties including imprisonment.
How do I avoid a drink driving conviction?
There are some important considerations to be made before deciding to plead guilty to a PCA or DUI offence. The first thing you should consider is whether you can actually be found guilty at law. Whether a defence exists turns on the circumstances of your case. Some of the circumstances that would give rise to pleading not guilty are as follows:
- Where the test has not been administered within 2 hours of driving the accuracy of the reading will fail and the accused may have grounds to defend the matter.
- It may be the case that the machine is faulty and the accused had consumed significantly less or no alcohol.
- You may not have been driving on a legally defined public road; or
- You may have been breath tested on your private property.
These are some of the reasons to defend a PCA or DUI.
The all the circumstances that might give rise to a defence have not been listed above. To recognise a potential defence it is important to seek legal advice.
Negotiating with the police
You will receive a copy of the Police Facts either before you attend Court or on your first court appearance. If you have a lawyer they can accept facts for you on your behalf. You may concede that you did commit the offence. However, the Police Facts may be inaccurate or not true in some parts. The errors in the Police Facts may include ‘aggravating factors’ these are facts which make your offence worse than the typical or common PCA offences. An aggravating factor will cause the Magistrate to treat your case more seriously than they would otherwise. Therefore, if an untruthful fact makes your offence seems to be worse than is, it should be removed.
Some of the facts which do not go to evidence of the elements or essential ingredients of the offence can be removed if they are irrelevant, unfair or untrue. That means facts about circumstances of your offence which are not required to find you guilty can be removed. Some examples of facts that are commonly removed or disputed are that:
- You consumed more alcohol than you actually did;
- Your intended journey was longer than it actually was; or
- Your eyes appeared blood shot from symptoms of intoxication when in fact you were extremely tired.
You should seek legal advice to decide if there are aggravating or untrue facts on your Facts Sheet. There are a range of issues that an experienced lawyer will be able to identify and act on accordingly, which you are unlikely to realise.
Your lawyer can negotiate with the police prosecutor or officer in charge on your behalf. They may also gather evidence to prove the existence or non-existence or certain facts. This may involve setting your matter down for a disputed facts hearing or leading evidence at your sentence hearing.
Each of these steps are very important to the overall outcome of your case and may be the difference between a section 10 or a conviction.
Pleading guilty to a DUI offence
Due to the large number of PCA matters that come before NSW Local Courts it is important to build a case which will distinguish your circumstances from those of the many other defendants who have found themselves in a similar situation. This is why it is very important to seek the advice of an experienced criminal lawyer who can build the strongest case possible.
There are important documents that should be prepared to prove you are a person of good character which your lawyer will assist you with.
Important documents including a letter of apology and proof that you require your licence should also be prepared. Often this will require a letter from your employer. Your lawyer can also guide you in how to prepare these properly which is very important. Poorly prepared documents are unlikely to help your case.
In some cases where you are disputing facts evidence needs to be obtained and presented in court. This may involve preparing affidavits of witnesses, including yourself and requesting other witnesses to attend court.
You may need to attend a traffic offenders program. There are a number of different providers of traffic offender courses. Your lawyer will assist you in enrolling in a program that is respected by the courts and practical for you to attend.
Double penalty provisions – Do they apply to me?
Double penalty provisions apply to repeat offenders who have committed another PCA or DUI offence within 5 years of a previous offence.
It is important to make the distinction between offences committed within five years of a prior offence and offences committed more than 5 years after a previous offence. Although the double penalty provisions will not apply outside a 5 year period, the Magistrate (or Judge on appeal) will be provided with a traffic record at your sentence hearing by the Police Prosecutor. This traffic record will inform them of any past PCA or DUI offences. A previous conviction will strongly hinder an argument under section 10 on the basis that a good character argument and an argument for the unlikelihood of repeat offending have already been tarnished. It also shows that you did not learn a lesson the first time which the courts find very frustrating.
However, depending on how long ago the offence happened and your circumstances at the time you may still be able to make an argument for section 10 or for the minimum penalties. It may be the case that you were experiencing some serious hardship that led you to commit the second offence. In any event, it is best to seek legal advice if you are not sure.
What will happen if I am convicted for a DUI offence?
PCA and DUI offences are the most serious of traffic offences which is reflected in the range of penalties available. Middle range and high range PCA offences carry terms of imprisonment. Although imprisonment is reserved for the most serious cases, often for repeat offenders the Magistrate can impose mixed sentencing options when appropriate. Some sentencing options include; mandatory disqualification, fines, good behaviour bonds, community service, intensive correction orders, suspended sentences and imprisonment.
If you are convicted you will have your licence disqualified for the period of time ordered by the Magistrate. The Magistrate cannot impose a disqualification period that is less than the minimum and they have the discretion to increase the disqualification period beyond the automatic period for middle and high range offences as well as all second offences where double penalty provisions apply.
You will most likely incur a large fine if convicted and in addition to these penalties, you will receive a criminal conviction.
For some people a criminal conviction will not affect them. However, for many a criminal conviction as well as loss of licence may give rise to a loss of employment. Certain occupations state in employment contracts that a driver licence is required and/or a criminal conviction will prohibit employment. Yet more reasons to ensure you do everything possible to avoid a conviction by seeking legal advice.
How do I get a section 10 for DUI?
An order under the Crimes Sentencing Procedure Act 1999 (NSW) s 10 is commonly referred to as a ‘section 10’. It is the golden ticket for anyone trying to avoid a conviction. The effect of a section 10 is in summary:
- You will not incur a criminal conviction, despite being found guilty of the offence;
- Avoid driver licence disqualification;
- If your driver licence has been suspended by police it will be returned;
- Avoid a heavy fine;
- You may be placed on a good behaviour bond which is a promise not to re-offence for a specified period.
Am I likely to receive a section 10 for a DUI?
No one can guarantee you a section 10 as it is a discretionary exercise on behalf of the Magistrate. This means that a Magistrate can either order or refuse to order a section 10. There are two main reasons for not giving someone a section 10:
- The Magistrate is not satisfied that the requirements of a section 10 have been met
- The circumstances surrounding the offence are so serious that a section 10 would not adequately or fully reflect the need to punish that person or help to prevent others from committing a similar offence.
What sort of cases are likely to receive a section 10 for DUI?
First ever DUI and PCA offences committed in the low, special range and novice range have reasonably good prospects of receiving a section 10 where the circumstances include:
- The offender is a person of good character determined by character evidence and the absence of a criminal record;
- The offender has no traffic record or only a minor traffic record;
- The offender was detected by a random breath tests as opposed to driving dangerously leading to police detection or having an accident;
- The offender has little or no risk of re-offending;
- Completed a reputable traffic offender program;
- The offender and any dependents would suffer by loss of licence. Losing the ability to drive when your job requires you to may result in unemployment. May lead to financial hardship where your mortgage and family reply on your income;
- Where public transport is not available;
- A conviction will have ongoing consequences for the offender such as loss of employment; and/or
- Other reasons the court considers relevant.
In cases where it is the offender’s second PCA offence, or where they have an ongoing serious traffic record and/or criminal record, the likelihood of receiving a section 10 becomes lower.
What sort of cases are unlikely to receive a Section 10 for Drink Driving?
Middle range offences and second offences in the low range have limited chances of receiving a section 10 . Generally in these types of cases as well as high range cases, your lawyer will discuss the minimum sentencing options with you.
A section 10 will not be granted for a high range offence unless there are highly ‘exceptional circumstances’. What constitutes an exceptional circumstance is ‘exceedingly rare’ according to the guideline judgement. This means that even where the offence has been committed in unusual or difficult circumstances a section will not be ordered. A circumstances that would be considered exceptional may be an emergency situation involving an urgent need to travel where there is absolutely no other option than to commit a PCA or DUI offence. These considerations can be ‘submitted’ or given in court by the persuasive advocacy of your lawyer and through documentary evidence. Such a case would require skilful preparation.
If your offence involves any aggravating factors you should seek legal advice. You should seek legal advice to make sure there are no aggravating facts you are not aware of as well!
Some examples but certainly not all aggravating factors are listed below:
- The commission of another traffic offence for example, disobeying a red light or driving whilst disqualified;
- An accident;
- An injury to yourself or someone else;
- Having other passenger in the vehicle.
If I am unlikely to avoid a conviction should I still seek legal advice?
The answer is yes! You should always seek legal advice on how to avoid a drink driving conviction.
You may be able to present an argument for the minimum period of disqualification at least halving the time your licence is likely to be disqualified from the automatic period.
The same issues which need to be addressed if you are trying to avoid a conviction should also be addressed if you are seeking a minimum penalty. It is very important you receive legal advice on these and any other issues before going to court.
For more information and case studies on Section 10 for drink driving, go to:
Call LY Lawyers, 24/7, for a free consultation with one of our Drink Driving Lawyers.