High range drink driving NSW

What is high range drink driving?

It is an offence under s 110(5) of the Road Transport Act 2013 (NSW) to drive or attempt to drive a motor vehicle while you have the high range prescribed concentration of alcohol (PCA) of 0.15 or above in your blood or breath. High range drink driving is a conduct offence – which means there is no requirement for any specific consequences (for example: serious injury or death) to result from an offender's conduct.  

This is the most serious level of drink driving you can be charged with in NSW and can incur some of the harshest  penalties available under the road traffic legislation scheme. 

High range drink driving offenders are most often detected because of a road-side breath test. A subsequent test (usually a breath analysis test, but a blood test can also be used in certain cases) is then performed and the result is determined to be the concentration of alcohol present at the time a person was driving.

Elements of the offence:

There are three elements that must be proved by the prosecution for a person to be found guilty of this offence:

1. A person was driving, attempting to drive, or supervising an L plater who was driving; 
2. A motor vehicle; and
3. They had the high range PCA in their breath or blood.

Defences available:

Breath analysis must be performed within statutory time limit:

It is important to ensure that the breath analysis test has been undertaken within the time limits stipulated in Schedule 3 of the Road Transport Act. This means police officers must have administered a breath analysis within two hours of conducting a roadside breath test. If they have failed to do so, evidence of a person's alcohol concentration has been obtained illegally and the court has the discretion to exclude this as evidence. 

A person cannot be required to perform a breath test at home:

Another requirement under Schedule 3 of the Road Transport Act  is that police cannot require someone to undergo a breath test on their own property. If police engage you to do a breath test while you are within the bounds of your own property (not on the road or parked on the kerb just outside) then the results of the test have been illegally obtained. Evidence gathered as a result of this conduct can be excluded by the court.

Unsafe readings:

A common issue with high range drink driving charges is that the alcohol present in a person's blood at the time of driving may have been much lower than it was at the time a breath analysis was undertaken.

Scientifically it is understood that a person's blood alcohol concentration will continue rising for a period of 30 minutes to 1 hour after they have last consumed alcohol. There are multiple factors relevant to determining whether the concentration of alcohol could have been lower and by how much. These factors include:

• The age and gender of the person.
• A person's height, weight and body composition.
• What type of alcohol was being consumed.
• How much alcohol was consumed and over what time period.
• When the road-side breath test was taken.
• When the breath analysis test was taken. 

It may be possible to engage an expert to produce a pharmacological report that supports the assertion that a person's blood alcohol was lower at time of driving than indicated by a breath analysis test. A report could be used to get the charge withdrawn or reduced or as evidence in a defended hearing. 

Honest and reasonable mistake of fact:

This defence is available for all categories of drink driving, but in practical circumstances it is rarely used in the high range tier. Often the "honest" component is not a difficult bar to reach – there are many examples of people misjudging how much alcohol they have consumed and how much remains in their system. However, at the point of reaching an alcohol concentration of 0.15 or above, the amount of alcohol consumed is considerable and its effect on behaviour becomes quite pronounced. At the high range point, it is incredibly difficult to argue that someone "reasonably" held the belief that it was safe for them to drive. The court has made it very clear that 'I thought I was okay to drive' is never an acceptable excuse. 

There are instances where this defence has been accepted at the high range level. It often involves some degree of involuntary intoxication. Some examples of involuntary intoxication cases include:

• Drink spiking (e.g. in one case a person was not aware their friend was lacing their cokes with shots of vodka).
• Taking medication that contains alcohol (e.g. a person was unaware the cough medicine they were taking contained alcohol).
• Painting or varnishing with solvents that contain alcohol (e.g. a person who had been painting with alcohol-based paint in an enclosed room all day had unknowingly absorbed it into their bloodstream).

However, the court must still be satisfied this was a "reasonable" mistake. Someone who 'felt' significantly intoxicated without knowing why is still expected to exercise reasonable caution when deciding whether or not they are okay to drive.

The High Range Guideline Judgment:

High range drink driving is the subject of an NSW Supreme Court  guideline judgment. This means there is a detailed set of instructions that magistrates must follow when sentencing a person for a high range drink driving offences. 

The Guideline sets out what an "ordinary case" of high range drink driving is and the usual penalties that should follow. The "ordinary case" includes:

• A person who drove to avoid "personal inconvenience" or because they believed they weren't too impaired by alcohol.
• They were detected by RBT (as opposed to police arriving because of a collision or road incident).
• The offender had prior good character and a minor traffic record.
• The offender pleaded guilty straight away and showed no risk of re-offending.
• Loss of licence would be a significant inconvenience.

The Guideline also stresses how serious an offence high range drink driving is and states that offenders should very rarely be awarded a non-conviction (or section 10) in the circumstances. For the purposes of "general deterrence" and community safety, penalties for high range drink driving have to be harsh. The Guideline raises the severity of the 'average' penalty for high range drink driving in order to convince potential offenders that driving after consuming a lot of alcohol is just not worth the risk.

Penalties:

The Road Transport Act  provides the maximum penalties available for first and second (or subsequent) high range drink driving offences. It also attaches an automatic licence disqualification period and a mandatory interlock order to both first and subsequent offences. Interlock orders override the minimum and automatic licence disqualification periods, which means if you are subject to an interlock order you will first face a much smaller period of disqualification and then a longer period on an interlock licence. 

It is important to note that you do not have to be previously convicted of high range drink driving to be subject to the second or subsequent offence penalties. If, in the past 5 years, you have been convicted of novice, special, low or mid-range drink driving then a new high range drink driving charge will be considered a subsequent offence and you will face harsher penalties.

Aggravating and Mitigating Factors:

Aggravating factors on sentence:

'Aggravating factors' are things to do with the specific offender and within the specific offending behaviour that increase  the seriousness of the offence. There is a list of standard aggravating factors in the Crimes (Sentencing Procedure) Act and the guideline judgment also details particular things within the offence of high range drink driving that 'aggravate' the offence and warrant a higher penalty.

These factors can include:

• Driving with other passengers in the car
• Being involved in an actual collision with people or property
• Driving in an erratic, aggressive or dangerous way
• Driving for an extended period of time
• The degree of intoxication (i.e. how far past the 0.15 threshold are they?)
• The number of people actually put at risk by the driving (e.g. was someone driving in an area and at a time when there were lots of other road users and pedestrians present?)
• Having a poor traffic record and in particular a history of drink driving offences

Mitigating factors on sentence:

'Mitigating factors' are things to do with the specific offender and within the specific offending behaviour that decrease  the seriousness of the offence. There is a list of standard mitigating factors in the Crimes (Sentencing Procedure) Act.

In the context of high range drink driving, relevant mitigating factors might include:

• Cooperating and assisting police at the scene and after the event
• No prior criminal record and a minor or non-existent traffic record (in particular no drink driving offences)
• Proof via written character references that a person is of good character, has good prospects of rehabilitation and is unlikely to reoffend.
• Display of remorse and acknowledgment of responsibility from the offender (this can include a letter of remorse written to the court and completion of the Traffic Offenders Intervention Program)

Sentencing Statistics:

The Judicial Commission of NSW provides sentencing statistics on a range of offences. It has recorded the outcome of 7 255 high range drink driving sentences between the period of September 2018 and September 2021.

The two most common outcomes for first time offenders were:

1. A Community Corrections Order (which can include good behaviour bonds and community service)
2. Fine only (average fine for first offence over the past 3 years was approx. $1100)

The two most common outcomes for subsequent offenders were:

1. An Intensive Corrections Order (a prison sentence but served fully on parole)
2. A Community Corrections Order

In addition to these penalties all convicted drivers would have been subject to a period of licence disqualification and/or a mandatory interlock period.

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.