Driving with a high range prescribed concentration of alcohol is the most serious drink driving offence in NSW. To be charged with driving within the high range, you must return a breath analysis of 0.15 or over.

After being charged, will be issued an immediate suspension of your licence by police. This means you cannot drive, until your matter is determined by the court. There is an option to appeal the police suspension earlier, however the suspension will only be lifted in exceptional circumstances.

The penalties for high range drink driving are serious, and carry a maximum penalty of $3,300 and/or 18 months imprisonment for a first offence. The penalties increase if the offence is a second or subsequent offence.

Upon conviction, offenders will also be required to participate in the mandatory interlock program, unless an exception is granted by the court.

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Penalties

Will I receive a criminal record?

High range drink driving is a serious offence, and therefore avoiding a criminal conviction is very difficult. Most offenders will therefore receive a criminal record and disqualification of their licence with a mandatory interlock order for this offence. If the offence is a second or subsequent offence, or if there are aggravating features, an offender is more likely to receive a penalty of imprisonment.

Guideline Judgment

To act as a guide to lower courts when sentencing offenders charged with high-range PCA, the NSW Supreme Court set out a Guideline Judgment.

Although the Guideline Judgment is in relation to offenders found guilty of high-range PCA, courts often refer to the principles and comments made by the judges in the Guideline Judgment when sentencing offenders charged with low range or mid-range PCA.

Aggravating Factors

In the Guideline Judgment, the Supreme Court said that the following factors aggravate the seriousness of the offence:

• The degree of intoxication
• Erratic or aggressive driving
• Competitive driving or showing off
• Length of the journey at which others are exposed to risk
• The number of persons put at risk by the driving (for example, passengers in the vehicle).

The Supreme Court also made the following observations:

• Prior good character: Of less relevance because persons of otherwise good character often commit these offences.
• Nature of the driving: Once the vehicle is in motion the offence is more serious because of the risk of death or injury to others is increased.
• Involvement in a driver education program: This will have little impact on the appropriate sentence to be imposed with high range PCA, except in relation to the length of disqualification or the amount of a fine. The Court said that offence is “so serious and the criminality…so high” that the participation in a program cannot be seen as an alternative to punishment. It will not warrant the making of a section 10 simply because the offender has participated in such a program.
• The period of disqualification: The automatic period is not the maximum, but merely a default period that operates on conviction unless some other order is made. The disqualification period can be longer. There should be “sufficient and appropriate reasons for reducing the automatic period”.
• Hardship: There will almost invariably be hardship, or at least inconvenience, caused by disqualification for such a lengthy period. The focus is upon a criminal offence that Parliament considers to be one of the most serious summary offences.
• Orders under s.10: For high-range offences, the cases where, notwithstanding the objective seriousness of the offences, it is appropriate in all the circumstances to deal with a matter under section10 will be rare, and exceedingly rare for a second or subsequent offence. One example may be where a driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

Importantly, the Supreme Court said an ordinary offender for the offence of high-range PCA is where:

•  the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol
•  the offender was detected by a random breath test
•  the offender has prior good character
•  the offender has nil, or a minor, traffic record
•  the offender’s licence was suspended on detection
•  the offender pleaded guilty
•  there is little or no risk of re-offending
•  the offender would be significantly inconvenienced by loss of licence

The Supreme Court then said that when sentencing an ordinary offender for high-range PCA:

• a non conviction will rarely be appropriate
• a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course
•  the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification
• a good reason to reduce the automatic period of disqualification may include:
  • the nature of the offender’s employment
  • the absence of any viable alternative transport
  • sickness or infirmity of the offender or another person.