DRIVING OFFENCES

Greenfield Lawyers specialises in all aspects of Traffic Law including the following types of offences:

• Drink driving - various ranges of prescribed concentration of alcohol (PCA);
• DUI - driving under the influence of alcohol or a drug;
• Drug driving - having illicit drugs in your body fluids;
• Refusing breath tests or breath analysis;
• Wilfully alter the concentration of alcohol;
• Driving whilst disqualified, suspended or cancelled;
• Dangerous driving, negligent driving, reckless driving;
• Predatory driving;
• Dangerous/DUI driving cause death or grievous bodily harm;
• Speeding offences and street racing;
• Heavy vehicle offences;
• Licence appeals;
• Habitual offender declaration appeals.

If my licence is suspended, can I appeal?

You can appeal if your licence has been suspended by the RTA for one of the following reasons:

• exceeding the speed limit by more than 30 or more than 45 kilometres an hour;
• loss of demerit points if you hold a P1 or P2 provisional driver’s licence.

If you receive a notice from the RTA suspending your licence for one of the above reasons you can lodge an appeal against this decision at any Local Court Registry. You only have 28 days from receiving the letter from the RTA to lodge your appeal. Once an appeal is lodged you can continue to drive until your appeal is heard.
There is nothing specifically that you must prove for your appeal to be successful. The court will generally consider the merit of your appeal on the basis of 3 main areas:

• the circumstances of the offence;
• your traffic record;
• your need for a licence.

Not all decisions of the RTA to suspend your licence are able to be appealed. You cannot appeal the following decisions:

• if you were on a good behaviour bond licence and you breach this bond, for example by incurring further demerit points;
• suspension of an interlock drivers licence;
• suspension of an unrestricted drivers licence for loss of demerit points.

The RTA have declared me a ‘habitual offender’, can I appeal this?

If you are convicted of three or more ‘relevant offences’, for example 'major traffic offences' (including 'drink driving'), within a 5 year period, you will normally be declared a 'habitual traffic offender'. This means that the RTA will automatically add 5 years to the period of disqualification imposed by the court.
If you have been declared a habitual offender you can make an application to the court to have the habitual offender declaration set aside (quashed) or the disqualification period reduced. To successfully quash a declaration you must convince the court that the disqualification period imposed by the declaration is a disproportionate and unjust consequence having regard to your total driving record and the special circumstances of your case.

DRINK DRIVING

In New South Wales there are five categories of offences for drink driving:

• Novice Range PCA – a concentration of more than 0.00 grams but less than 0.02 grams of alcohol in 100 millilitres of blood. This range only applies to holders of learner or provisional licences;
• Special Range PCA – means a concentration of 0.02 grams or more, but less than 0.05 grams of alcohol in 100 millilitres of blood. This range only applies to a “special category of driver” as defined in s 8 Road Transport (Safety & Traffic Management) Act 1999, and includes holders of learner or provisional licences, persons whose licences are suspended, cancelled or disqualified and persons who are driving a vehicle for hire or reward or in the course of trade or business or as a public passenger vehicle within the Passenger Transport Act 1990;
• Low Range PCA – means a concentration of 0.05 grams or more but less than 0.08 grams of alcohol in 100 millilitres of blood;
• Mid Range PCA – means a concentration of 0.08 grams or more but less than 0.15 grams of alcohol in 100 millilitres of blood;
• High Range PCA – means a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood.

Penalties for PCA offences depend on the type of offence and the prior traffic history. All PCA offences are major offences: s 25(1)(c)(iv) Road Transport (General) Act 1999 NSW.

Drink Driving Penalties

If you have been charged with a drink driving offence in New South Wales you would have received a penalty in one (or a combination) of the following forms:

• a fine;
• licence disqualification;
• imprisonment.

Under the current legislation these penalties will increase if you have been convicted of a previous major offence within the past 5 years. A major offence is an offence referred to in s25(1) Road Transport (General) Act 1999 NSW.
If you have been charged with an offence of novice range PCA, special range PCA or low range PCA you cannot go to gaol for the offence, no matter how bad your record is.

Can I defend a PCA charge?

Yes. There are a number of ways a PCA charge can be challenged in the courts. These include:

• Honest and reasonable mistake – you must prove to the court that you honestly believed you were under the limit and that this belief was reasonable. Proving such a thing to the court will be very difficult but can be done.
• The ‘2 hour’ rule – police cannot require you to undertake a breath analysis more than two hours after you last drove a vehicle.
• Challenging the reading – you may be able to establish that the reading taken by the police as not accurate due to a fault or error of the machinery used. This will be a very difficult task indeed.

What is the Traffic Offenders Program?

This is an option to the court before a person is sentenced for a traffic offence. It may also be used by the Probation and Parole Service in the management of traffic offenders who are on existing probation or parole orders.
Our lawyers will often recommend that you enrol in a traffic offenders program before appearing in court to demonstrate to the magistrate that you are serious about improving your driving behaviour. The program is designed to increase your understanding of your obligations to other road users. Your successful completion of the program may be taken into account when you are sentenced for a PCA offence.

I really need my licence, is there any way I can avoid a period of disqualification?

Yes, in some circumstances the magistrate may deal with your matter under section 10 of the Crimes (Sentencing Procedure Act) 1999 (NSW). Section 10 is where you plead 'guilty' (or are found 'guilty') but the magistrate chooses not to record a conviction for the offence. There can be no disqualification period for an offence if there is no conviction recorded.