Penalties for drink driving and drug driving were fortified considerably in 2019 in an effort to reduce the road toll. Amendments to the NSW Road Transport Act 2013 mean that drivers who are now detected with a low range alcohol reading of between .05 and .08 will have their licence suspended automatically.

How do police determine if you're over the legal limit?

In NSW there are two types of drink driving charges. First, the charge of driving under the influence of alcohol (DUI) can be applied by police after assessing the physical state and mannerisms of a driver. For example, the driver is driving erratically, or has slow reaction times, slurred speech or blurred vision.

The second charge is driving with a prescribed concentration of alcohol (PCA). This charge requires evidence from a breathalyser or blood sample. It is easier for police to prove that you have exceeded the legal limit.

New penalties for low-range drink driving

After 20 May 2019, the penalty for full licence holders for driving with an alcohol reading of between 0.05 and 0.08 was increased.

Police at a roadside test can now immediately suspend your licence for three months and impose an on-the-spot fine of $572. (See Drink Driving Penalties, NSW Government Centre for Road Safety.)

The same penalty applies to those found with prohibited drugs in their system.

Before these changes in the law, drivers charged with low range PCA drink driving on NSW roads were required to attend court to have their penalty determined. They did not lose their licence immediately and were able to continue to drive until their court date.

Adverse impact of automatic licence suspension

The power of police to suspend your licence immediately is a new penalty which can negatively impact people who depend on driving a vehicle for work.

It may be viewed as being inequitable, particularly by those who have a longstanding unblemished driving record, and especially if the reading registers .05 or slightly above.

That is why it is important for drivers who are charged with low range drink driving to seek legal advice. Taking into account the driver's history and work requirements, the licence suspension could be worth challenging in court.

Appealing a drink driving charge in court

While it is difficult to challenge the accuracy of the breathalyser machine, it is possible to challenge police with regard to the timing between the roadside breath test and the breath analysis which is conducted at the nearest police station.

It could be argued that a driver charged with low range PCA may honestly believe they were under the limit. This could be based on the quantity and type of alcohol consumed, the period over which the alcohol was consumed, and the time between the last drink and apprehension by the police.

In some circumstances, it may be advantageous to seek a toxicology report compiled by an expert to ascertain if there is a probability that the reading could be lower than that reported by the police. The driver's background may also be taken into account when determining the outcome.

Possible consequences of unsuccessful appeals

It is important to understand that if you decide to challenge a drink driving charge and the appeal is unsuccessful, the magistrate may actually increase the fine and extend the suspension.

Peter Schmidt
Traffic and driving offences
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.