The NSW government recently proposed to give police new powers to issue on-the-spot fines and licence suspensions for first time, low-range drink driving offences.
A low-range drink driving offence applies to a driver who has recorded a prescribed concentration of alcohol (PCA) of between 0.05 – 0.08.
The proposal has generated a lot of discussion, particularly in the legal community, as to whether such powers are appropriate. The most common concern is that an ‘on-the-spot’ penalty notice detracts from the seriousness of the offence, as offenders would not have to attend court and ‘face up’ to their actions.
The proposal, if implemented, would bring NSW in line with existing Victorian laws, where drivers over the age of 26 caught low-range drink driving between 0.05 – 0.07 receive an on-the-spot fine and 10 demerit points.
According to Judicial Commission Sentencing statistics, of drivers who were charged with low-range drink driving, almost 50% received s 10(1)(b) [or (c)] non-conviction good behaviour bond. Additionally, 44.4% of offenders received a conviction and a fine. Of those 44.4% of offenders, the average fine imposed was between $501-$750 and the average disqualification period imposed by magistrates was three (3) months.
The proposal by the NSW government would see motorists receiving a $561 fine and an immediate three (3) month licence disqualification, which is very much in the median range of fines and disqualification periods currently imposed in the local court.
It is also proposed that police will have discretionary power to choose to issue a driver with a court attendance notice (CAN), instead of issuing an on-the-spot fine, when having regard to the circumstances of the offence. This means drivers issued with a CAN will need to attend court for sentencing.
However, drivers still have the opportunity to appeal their matter in the local court. Although, if convicted, offenders face an automatic disqualification period of six (6) months and a maximum $2,200 fine (which is double the current maximum amount).
Currently, first-time offenders who are caught low-range drink driving face an automatic disqualification period of six (6) months, with a magistrate having the discretion to lower the disqualification to a minimum period of three (3). Offenders also currently face a maximum $1,100 fine and the prospect of a criminal conviction.
Are we undermining the seriousness of drink driving offences with drivers no longer facing a criminal conviction?
The NSW Parliament recently passed a Bill allowing for Digital Driver’s Licences to be used for proof of identity and proof of age purposes.
Driver’s will still be issued with a physical card, however, they will no longer be required to carry it on them if they are able to produce a valid digital driver’s licence.
Amendments have been made to the Road Transport Act 2013, Photo Card Act 2005, Gaming and Liquor Administration Act 2007, and Liquor Act 2007.
Digital Driver’s licences are set to be released across NSW in early 2019. The aim is to save time and make producing identification a little easier.
What should you know before opting in?
You do NOT have to hand over your mobile phone, or any other electronic device, to police that your digital driver’s licence is displayed on.
You DO have to make sure your digital driver’s licence can be viewed. This means, if your phone screen is cracked, or your phone brightness is not suitable, you are considered not to have displayed your driver’s licence.
You CANNOT commit an offence for the use of using a mobile phone if it is in response to a request from a police officer or other authorised person.
Police CANNOT seize your mobile phone, or any electronic device, that your digital driver’s licence is displayed on for the purposes of seizing your driver’s licence.
Police CAN ask you to refresh your Service NSW application to ensure that it is up to date.
You MUST remove your digital driver’s licence from all electronic devices as soon as practicable after being required to surrender your licence.
So, what if you’re caught out?
Under the recent amendments, a person who fails to comply with a reasonable request to view, copy or scan their digital driver’s licence is considered not to have displayed their licence and is subject to penalties.
What does this mean? Potentially, if your phone is out of battery or if you are out of phone reception, you are considered to not have displayed your driver’s licence.
Whilst our phones are able to do just about anything for us, should we be wary about carrying such an important piece of identification on it?
It is important to note that if your licence is suspended you only have 28 days to lodge an appeal. If your licence is suspended by police, you have 28 days from the date your licence is suspended. If you receive a notice of suspension form the Roads and Maritime Services (RMS) you have 28 days from the date you receive the notice of suspension.
So, what can you appeal?
Depending on whether you hold a P1 or P2 provisional driver’s licence or an unrestricted licence there are differences in relation to the types of suspensions you can appeal.
Unrestricted licence holders CAN appeal:
- An on the spot decision by police to suspend your licence for exceeding the speed limit by more than 45km/h; and
- A decision by the RMS to suspend your licence for exceeding the speed limit either by more than 30km/h or more than 45km/h.
Unrestricted licence holders CANNOT appeal:
- A decision by the RMS to suspend an unrestricted driver’s licence for an accumulation of demerit points.
P1 or P2 provisional licence holders CAN appeal:
- A decision by the RMS to suspend your P1 or P2 provisional driver’s licence for an accumulation of demerit points (4 points for P1; 7 points for P2);
- An on the spot decision by police to suspend your licence for exceeding the speed limit by more than 30km/h and more than 45km/h; and
- A decision by the RMS to suspend your licence for exceeding the speed limit by more than 30km/h and more than 45km/h.
Whilst unrestricted licence holders cannot appeal a licence suspension for an accumulation of demerit points, they can apply for a ‘good behaviour’ licence. A good behaviour licence means that you will have 2 demerit points remaining on your licence for a period of 1 year. If you accrue these demerit points during this time, your licence will be suspended for twice the original period of suspension.
P1 and P2 provisional licence holders CANNOT apply for a good behaviour licence.
What happens when you appeal to the court?
You MUST ensure that you have lodged an appeal less than 28 days after you received your licence suspension, or the court will not hear your appeal.
When the court hears your appeal there are 3 potential outcomes:
- Allow the appeal;
- Dismiss the appeal; and
- Dismiss the appeal but vary the suspension period.
Allowing the appeal – if the court allows your appeal, it means that your licence is no longer suspended and you can continue driving.
Dismissing the appeal – if the court dismisses the appeal, it means that your licence will continue to be suspended for the remainder of the suspension period issued by either the police or the RMS.
Dismissing the appeal, but varying the suspension period – if the court dismissed the appeal, but varies the suspension period, it means that your licence will continue to be suspended, but for a period of time indicated by the court.
For more information on appealing a licence suspension, contact the team at Conditsis on (02) 4324 5688.
In a recent decision, the NSW Supreme Court clarified what is meant by driving under the influence.
What is DUI?
Many people use the term “DUI” as an umbrella term to refer to all kinds of drink driving charges. This is not technically correct.
In law, there are two kinds of drink driving charges, DUI and PCA. Most drink driving charges are in fact PCA charges. PCA stands for Prescribed Concentration of Alcohol. When a person is breathalysed and returns a reading over the limit, the police will charge a PCA offence, not a DUI offence.
A DUI offence is used where Police do not have a reading but are instead relying on the fact that the person was under the influence of alcohol or other drug at the time of driving. Usually, to prove a DUI charge, Police rely on observations about the person’s appearance and behaviour to show that they were “under the influence”.
Until recently, many Lawyers and Magistrates thought that in order to establish a DUI charge, police had to establish that the person was so affected by alcohol or some other drug that their ability to drive was impaired. The recent Supreme Court Decision of DPP vs Kirby established that a DUI charge can be proved even where there is no proof that the person’s state of intoxication would have impaired their ability to drive. All the police have to prove is that the person was influenced by alcohol or a drug in some way, whether it was related to driving or not.
Whether or not this development is seen as positive will probably depend on a person’s individual point of view. Critics of this development may well argue that the function of DUI charges is limited to protecting against drivers whose ability to control a car is impaired by alcohol or some other drug and that this development is unfair because it unnecessarily punishes people who may have had a little bit of alcohol, may well be under the legal limit for a PCA charge and pose no danger on the road. On the other hand, supporters will no doubt say that anyone who is under the influence of alcohol or drugs to any extent should not get behind the wheel of a car.
If you’re charged with drink driving, you may receive advice that the easiest thing to do is plead guilty. Depending on your prescribed concentration of alcohol or PCA, your driving history and what led to your arrest, an experienced lawyer may advise the smart choice is to plead guilty and try to reduce the punishment.
However, there are some cases where defending a drink driving charge is possible, using a strategy like the home safe rule. Expert traffic lawyers will understand when and how to defend a charge, and if relevant try to have you found not guilty or have the charge withdrawn by police prosecutors.
What the law says
Under the law, police can’t make you provide a breath test at your home or usual place of residence.
If your lawyer raises the home safe rule as part of your defence, it’s up to the prosecution to prove, beyond a reasonable doubt, that the breath test was not carried out after you arrived home.
What is ‘home’?
The legal term has been updated to ‘home’ from ‘usual place of abode’, but essentially it means the same thing. Defining ‘home’ is key to whether this defence can be used in your case. Past decisions don’t provide a concrete definition – judges tend to decide on a case-by-case basis, however they do provide some guide as to what is and is not considered a home for the purpose of this defence.
Based on past cases:
- you’re home at your ordinary residential property when you’re within the property boundary
- even if part of your property isn’t fenced off or enclosed, it may still be home if it’s clearly part of where you live and enjoy your property
- the entire grounds of a hospital or caravan park aren’t generally accepted as a home – the boundary of your residence within those grounds is your home
- there’s no difference between single or multi-occupancy properties
- a car park may be considered part of your home. You may be home if you park in your driveway or carport, or car space within the car park of the block of apartments where you live.
What can happen if you use this defence
If your lawyer can prove to the court the breath test was conducted after you’d arrived home safe, there could be several outcomes:
- the court can throw out the evidence of the breath test, the arrest and further breath analysis based on the evidence being obtained illegally
- the evidence can be judged as invalid, and not able to be used in court
- you can challenge any charges of refusing to provide a breath test (if you knew your rights and refused at your home).
We can help
If you need help with a traffic offence, Conditsis Lawyers can provide you with advice on the best strategy for your case. Contact Conditsis Lawyers today.