New drink driving laws
From 20th of May 2019 police will have the power to immediately suspend your licence if you are caught driving in New South Wales with prohibited drugs in your system, or a blood alcohol concentration above the legal limit that applies to the type of licence you hold.
What are the changes?
Prior to these changes, if you were caught driving over the limit you would receive a notice to attend court. Your licence would not be suspended immediately unless your blood alcohol reading was in the middle range (greater than 0.080) or above. This meant that drivers who returned readings in the low, special or novice range could continue to drive until their court date.
A court could then impose a fine and period of disqualification or exercise its discretion to not record a conviction. Under the new legislation police can now issue a penalty notice or ‘on the spot fine’ for drivers caught driving with a prohibited drug in their system or with a blood alcohol reading in the special, novice, or low range. Police can also issue an immediate 3 month licence suspension to anyone in these categories. This means that the driver receives an on the spot fine (currently set at $561) and a 3 month suspension without having to attend court.
Why have there been changes to drink driving laws?
In passing these amendments Parliament noted that in the period up to June 2017, 56% of drivers charged with low range PCA did not receive a conviction at court. That means that the court exercised its discretion to deal with the matter under section 10 (now known as a conditional release order without conviction). As a result their licences were never suspended. In the second reading speech of the Bill it was noted that,
“One of the objectives is to ensure penalties, including licence suspension and fines, are consistently and swiftly applied to low level prescribed of concentration of alcohol, or PCA, and drug presence first offences through licence suspension, coupled with penalty notices.”
The intention of the new laws is clearly to ensure that all drivers caught with drugs in their system or a blood alcohol reading above 0.05 have their licences suspended immediately.
Police still have discretion not to issue a suspension
Under Section 224 of the Road Transport Act a police officer ‘may’ issue an immediate licence suspension. This means that Police can choose not to issue an immediate suspension notice. However this same discretion has always applied to drivers charged with other serious offences such as middle or high range PCA, and exceeding the speed limit by more than 45km/h. In those types of matters it is very rare for police not to issue an immediate suspension notice. It is unclear whether the NSW Police Force will encourage its’ officers to exercise discretion or issue immediate suspensions in all of these matters.
What is an immediate suspension notice?
When you are issued with an immediate suspension notice your driver’s licence is suspended immediately for a period of 3 months, unless it’s finalised by a court earlier or withdrawn. If you elect to have the matter determined by a court and are convicted, you will face a period of disqualification. The disqualification period may be backdated to commence on the day you were issued with an immediate suspension notice. Suspension notices can also be given to interstate and overseas licence holders.
Can I appeal to get my licence back?
Yes – an immediate licence suspension is an appealable decision and you can lodge an application to appeal in the NSW Local Court within 28 days. The difficulty with this is that the court cannot vary or set aside an immediate police suspension unless there are exceptional circumstances for doing so. Exceptional circumstances must be circumstances which are not common or usual.
What if I need my licence for work?
In New South Wales there is no such thing as a ‘work licence’ or any type of licence that allows you to drive during certain times or for certain purposes only. If you are issued with an immediate police suspension for drink or drug driving, you cannot drive under any circumstances. You can lodge an appeal however the lodgement of an appeal does not automatically stay (put a hold on) the suspension. An appeal based solely on the need to drive for work is unlikely to be successful.
Will I have a criminal record?
Payment of a penalty notice is not a criminal conviction or an admission of guilt. Despite that, penalty notices may still be disclosed in certain types of background checks for particular purposes. One of the key changes is that a penalty notice for a PCA or drug driving matter will now be counted as a ‘first offence’. That means that even though it is not a conviction, if you are caught again with 5 years of paying a penalty notice that new offence will be classed as a ‘second offence’ and you will face increased penalties.
Can I take the matter to court?
Yes, you can still elect to have the matter determined by the court however you will still be suspended from driving until the court date. While a court may decide to deal with the matter without recording a conviction, you also run the risk of having a criminal conviction recorded and facing a period of disqualification. In passing these amendments the maximum penalties were also increased from $1100 for a first offence to $2200. If it is your second offence within a 5 year period the penalties were increased from $2200 to $3300.
Drivers can be forced to complete a traffic offenders’ program
Under the new provisions a driver who is caught driving over the limit or with drugs in their system can be directed to complete a traffic offenders’ program. This applies whether you pay a penalty notice or are convicted by a court. If you do not complete an approved traffic offenders’ program within the specified time, then any period of suspension or cancellation may be extended until the course has been completed.