Part 5.1 of the Road Transport Act 2013, under the title Alcohol and Other Drug Use, creates the offences which may be committed when a person takes charge of a motor vehicle on a public street after he or she has consumed alcohol.
The test for deciding whether an offence may have been committed is to measure the amount of alcohol in the driver’s breath or blood. Tests can be done by the Police at accident scenes, random roadside mobile testing stations or in Police Stations, or at a hospital, using technologically advanced measuring techniques which produce printouts confirming the amount of alcohol present in a sample of breath or blood.
There are 5 levels of the permitted amount of alcohol– Novice, Special, Low Range, Middle Range and High Range. The permitted level for an individual driver varies depending on the type of Driver Licence held, and if your reading is equal to or higher than the level applicable to your type of Licence, the Police may issue a Court Attendance Notice requiring you to appear before the Court to answer a Charge.
The wording of the Charge will be that you drove a motor vehicle, or occupied the driving seat of a motor vehicle and attempted to put the motor vehicle in motion, while you had the prescribed concentration of alcohol in your breath or blood.
What should you do if you receive a Court Attendance Notice requiring you to answer such a Charge?
The short answer is – see a Solicitor. The longer answer is – because the law is complex and technical, and every element of the offence must be proved by the Police, and because, if you are convicted, the penalties are severe and include imprisonment and the loss of your right to drive, it is essential to protect your interests in the best way possible. Instructing a Solicitor to go to Court and speak for you is the best thing you can do.
Your Solicitor will interview you and advise you as to the preparation of your case. As in any Court case, it is essential to get the facts straight. You should write down the history that led to your being charged. Where were you when you consumed the alcohol? What time of the day was it? How long were you there? What did you drink? How many drinks did you have? Why were you there? Why did you drink alcoholic drinks knowing you had to drive afterwards? Were there any unusual circumstances? Where were you driving to when you came to the attention of the Police? Was there an accident? Was anyone injured?
Take your statement and the Court Attendance Notice and all the documents the Police have given you, and a copy of your Driving Licence, to the interview with your Solicitor. If you have a copy of your Driving Record and any Criminal Record, take them as well. Your Solicitor will consider whether the facts support the charge, and advise you to plead “guilty”, or whether there is a basis on which you could deny the charge and therefore plead “not guilty”. In most cases, a guilty plea is appropriate, as the testing procedure is objective and leaves no margin for error.
Assuming you are advised to enter a “guilty” plea, your Solicitor will then consider the likely penalties you may suffer, and the best means of minimising those penalties in your particular circumstances.
What is the Traffic Offender’s Program?
Your Solicitor may advise you to have the Court proceedings adjourned so that you can attend the Traffic Offenders Programme (TOP). This Programme requires weekly attendance over 6 or 8 weeks, and the sessions are intended to increase your awareness of your responsibilities as a driver on our roads. Submission of a Certificate that you have successfully completed the Programme to the Court may assist in reducing the penalties the Court applies. There are shorter programmes that are more intense, but only limited to certain areas in Sydney.
What is the likely penalty?
Every case is different, and the Court exercises its discretion in deciding the penalty that is most appropriate for you. It is rare that the Court will release you without any penalty at all. The most likely penalties are fines and disqualification from holding a Driving Licence for a specified period of time. In many cases disqualification for a minimum period is mandatory, and therefore cannot be avoided, but your Solicitor may make submissions with a view to limiting disqualification for more than the minimum period.
Can I get a Section 10 for drink driving?
However, if you have compelling reasons for needing your driver’s licence, and your drink driving offence is a mid-range drink driving offence, or lesser, you may be eligible to be dealt with by way of a “Section 10”. Section 10 of the Crimes (Sentencing Procedure) Act 1999 allows for the court exercise a discretion to deal with offenders by not entering a conviction. In the case of drink driving matters, this will mean that, if the court decides to deal with you by way of a Section 10, the disqualification period will not apply.
The Court may also order you to enter a Bond with conditions as to your future conduct. Imprisonment is likely to be considered where the alcohol reading is very high, or the circumstances of the driving were exceptional (for example if you had a serious accident as a result of your intoxication), or if you have previously been convicted of a drink-driving offences.
Factors such as whether this is the first time you have been charged with a drink-driving offence, your overall record of Traffic Offences, whether your Licence is essential for your employment, your age, occupation, financial position, any family or personal responsibilities, personal achievements and your general character are all relevant, and you should gather evidence about them and give it to your Solicitor. This is done in the form of letters or statements, and written references. Any references should be clearly written and concise, and should confirm that the writer is aware that you have been charged with a drink-driving offence, and that the document will be presented to the Court.
You must attend Court in person, even if you have instructed your Solicitor to appear and speak for you. You can ask for an adjournment for a couple of weeks if you need time to obtain the documents you wish to present to the Court, or to attend the TOP. It is advisable to dress and behave conservatively and to be respectful of the Court and the people who work there.
Can I plead not guilty to drink driving?
If you are advised to enter a plea of “not guilty” the procedure is different and there will be a formal hearing with oral evidence being taken from the Police and other witnesses. You may be advised to give oral evidence in your defence, and your Solicitor will make submissions about the law, and as to whether the charge has been proved beyond a reasonable doubt. If the submissions are successful, you will be acquitted. If not, you will be convicted and your Solicitor will follow the process regarding penalty that is set out above.
Those accused with drink driving offences will be surprised that there are numerous defences to drink driving charges that may apply to the case against an accused person. For example, sometimes, the blood-alcohol reading can be challenged, and if successful can result in the downgrading of the charge to a lesser charge.
An experienced drink driving lawyer in Sydney will properly advise you whether you have a defence to the charge or not.