Drink driving charges and you

The police can give you an on-the-spot fine and suspend your licence immediately if:

• it is your first drink driving offence; and
• your blood alcohol reading was in the low, novice or special range.

If you admit the offence, you should pay the fine, or make arrangements to deal with the fine before the due date. If you do not pay the fine, Revenue NSW can take other action against you. This can include enforcement fees and a further suspension of your licence.

If you have received a fine and an immediate suspension of your licence, you must not drive during the period of the suspension. Once the period of suspension has ended, check that your licence has not expired and that there are no other issues impacting on your licence. If there are no issues, you can start driving again. You do not have to reapply for a licence.

Yes, you can apply to have your fine to be heard by a court. The fine notice gives you information on how to do this. If you choose to have the matter heard in court, your licence will remain suspended. This means that you must not drive until the matter is heard or the period of suspension has ended.

You should get legal advice before asking to have your matter dealt with by the court.

If you elect to go to court, once the court attendance notice is issued you cannot change your mind. The court attendance notice can be issued very quickly – sometimes within 24 hours of the application. Before you decide to dispute the fine in court you should consider the following:

• The amount of your fine and the period ofyour suspension may increase.
  The court can increase the fine amount and length of time you are unable to drive. The court can also record a conviction for the offence.
• You may get a criminal record and a licence disqualification.
  If the court convicts you ofthe driving offence, the conviction will appearon your criminal record and your licence willbe disqualified. If your licence is disqualifiedyou must re-apply and be issued with a driverlicence before you can drive again.

If you are going to take the matter to court, you should do this before the due date of your fine. If the fine is already overdue, you can still apply, however you will need to prove that you were prevented from paying or managing your fine before the due date. This is called hindrance. You will need to supply supporting evidence, such as medical or travel documents.

Yes. You can lodge an appeal against your suspension at the Local Court. If you appeal, you must lodge the appeal within 28 days of receiving notice of your licence suspension. There may be a fee for this appeal. If you are on a Centrelink benefit or experiencing financial hardship, ask if this fee can be waived. The court will not decide your appeal straight away. The appeal will be listed before the magistrate at least 28 days after you have lodged the appeal.

Will my immediate suspension be lifted before the court has determined my appeal?

No. The suspension will remain in place and you cannot drive. In exceptional circumstances the court could stay your suspension until your appeal is heard. When lodging your appeal you could ask that your appeal be listed for an application to ‘stay the suspension’. This means you are asking for your suspension to be lifted before the appeal is heard. When dealing with your appeal, the court can only lift or vary your suspension, or grant a stay if it is satisfied that there are exceptional circumstances.

Before you lodge an appeal, it is a good idea to get legal advice about whether or not your circumstances are exceptional. You can also get advice on how to prepare for your appeal.

Get character references

Written references from people who can talk about your good character may help yourcase. References should be addressed to the magistrate, and the people writing them should say they know about the charges you are in court for.

For more information about how to write a character reference for court, see the Legal Aid NSW brochure Character References.

Write down what you want to say to the court

Write a letter to the magistrate, or make notes of what you will say in court. The court will consider what you say when it decides what penalty to give you.

You should consider:

• if you believed you were over the limit when you drove
• if you were stopped by a random breath testor because you were driving erratically or dangerously
• how long you drove, or intended to drive, when you were stopped
• how many people (passengers, members of the public) were put at risk by your driving
• if there was an accident
• if not having a licence will affect your employment or other people who rely on you (for example, children, sick relative)
• if you don’t have other transport you can use, and
• how long you had a licence and what your overall driving record is like.

You should explain:

• any special reason why you were driving
• why you were driving after consuming alcohol
• why the court should accept that you will not drink and drive in future
• if you need a licence for work, get a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time
• if you have other reasons for needing a driver licence, for example, caring for a relative or health problems of your own. Have evidence tos how this (like a doctor’s certificate or report),and
• what your weekly income and expenses are (this will help the court work out any fine it gives you).

• at the time you go to court, you will probably already be suspended from driving. The police immediately suspend your licence at the time of the offence. Even if you have not been suspended, you should not drive to court in case you lose your licence at court. Take your licence with you (unless the police have already taken it), because the court may tell you to hand it in
• when you get to court, find the court officer and advise that you are unrepresented and if you will plead guilty or not guilty. You can usually find the court officer inside or just outside your courtroom
• if you want legal advice, find the Legal Aid NSW duty lawyer at court or ask the court to adjourn your case so you can get legal advice. You should see the duty lawyer if you think you could go to gaol
• the police will have a fact sheet which says why you were arrested. It may also say what the police say you told them about how many drinks you had. Make sure you read it
• heck the certificate that states your blood alcohol level and the machine printout from the breath analysis machine to see that theymatch the time on the police fact sheet
• if you disagree with what the police say happened, you should get legal advice before you plead guilty
• the police prosecutor should also show you a copy of your previous criminal record if you have one. If you do not have a criminal record, the prosecutor might still have your bail history. If the prosecutor has your bail history you should ask to see it. You should also ask the prosecutor to show you a copy of your driving record. Read these documents carefully to make sure they really are yours. If you think there is wrong information on your criminal, bail or driving record, tell the magistrate when it is your turn to speak
• listen to what other people say to the magistrate while you wait for your name to be called. It can be helpful to sit in the courtroom and listen to other people presenting guilty pleas to give you a better idea of how to present yours
• speak to the magistrate when your name is called. If you are pleading guilty tell the magistrate and either ask to hand your letter to the magistrate or read from the notes you’ve made. Give the court any written references and documents that you have to support your case
• think about doing a Traffic Offender Intervention Program (TOIP). If you attend the program and complete the coursework your penalty may be reduced. If you want to do the program, tell the magistrate and ask for your case to be adjourned so you have time to complete it. You will have to pay to do a Traffic Offender Intervention Program (TOIP), and
• if the police suspended your licence and took it away on the spot, ask the magistrate to take into account the time your licence has already been suspended when deciding how long you should be disqualified for.

If you are convicted, you will lose your licence for some time. The higher your alcohol reading, the longer you will lose your licence for.

The court can also fine you, or give you other penalties, like a gaol sentence for more serious offences.

For repeat or more serious drink driving convictions you will also have a mandatory alcohol interlock order made against you.

An interlock is an electronic breath testing device that is connected to the ignition of a vehicle and stops it from starting if it detects alcohol.

If you are convicted of repeated or more serious drink driving offences the court will make a mandatory interlock order against you. This means your licence will be disqualified for five years unless you complete:

• a shorter period of disqualification (between 1 - 12 months), and then
• time in the interlock program (usually 1 - 4 years).

Participating in the interlock program means:

• you can only drive vehicles fitted with an interlock
• you must have an interlock fitted to your vehicle
• you must provide a breath sample in order to start your vehicle
• you will have to pass random breath tests whilst driving, and
• you, or anyone driving your vehicle, will be photographed each time a breath sample is provided (any breath samples that are positive for alcohol, or attempts to tamper with the interlock device, are recorded by the interlock and monitored by Transport for NSW).

If you try to drive after drinking alcohol, you could:

• get a warning letter
• be referred to a doctor
• have your interlock licence period extended, or
• have your licence suspended, cancelled or disqualified.

You will have to pay to have the interlock installed and maintained. It costs about $2,200 a year. Concessions are available for eligible people, or if you are in severe financial hardship you can ask Transport for NSW for financial help.You can find more information at www.nsw.gov.au.

Interlock exemption orders

An interlock exemption order can only be made at the time the court convicts and sentences you. If you think you will be unable to fit an interlock device to your vehicle, you should ask the court to make an interlock exemption order. You will need to convince the court that an exemption order should be made.

If the court makes an interlock exemption order, you will get a longer disqualification period. However, you will not have any interlock period, which means you will not face the five year disqualification for failing to fit an interlock device when required.

An interlock exemption order may be made if you can prove to the court that you either:

• don’t have access to a vehicle in which aninterlock can be installed, or
• have a medical condition that prevents youfrom using an interlock.

If you are convicted of a mid-range PCA offence, and it is your first offence, in addition to the matters above, the court may also make an interlock exemption order if you can prove that:

• the order would cause you severe hardship,and
• an interlock exemption order is moreappropriate in all the circumstances.

The penalties you may get if you have been charged with a drink driving offence are set out on pages 16–19. The law is complicated and these tables may not cover your situation. You should get legal advice about your own case, especially if this is not your first offence or if you have been charged with a combined drink and drug driving offence.

If you have been given a fine and are not asking a court to deal with the matter, the fine and licence suspension will remain the same as what was given to you at the time of the offence.

If you are considering asking a court to deal with the offence, the tables over the page set out the maximum penalties the court may impose.

Your licence disqualification will be extended if you are in gaol

If you are sentenced to a term of imprisonment, your disqualification will be extended for as long as you are in gaol for that offence. This won’t include any of the time you are released on parole.

You may not be able to use your vehicle

If police charge you with a second drink driving offence that is also a ’serious offence’, they may impound your vehicle or confiscate the number plates.

If there is something you don’t understand about the court’s decision, ask the magistrate to explain. If you don’t get time to ask the magistrate, ask court staff at the registry to explain.

• Don’t drive while disqualified
  If you have been disqualified from driving, you must hand in your licence. If you drive you can go to gaol for up to six months or be fined $3,300 (or both). If it is not your first offence, you could go to gaol for up to 12 months and be fined $5,500.
  You will also be disqualified from driving for at least three months (or six months if this is not your first offence) if you are convicted for driving while disqualified. Police can take away your vehicle for six months if you drive while disqualified three or more times in a five year period.
  Some people can apply to the Local Court to ask for their existing disqualification periods to be removed if previous to the disqualification they had gone two or four years without a driving offence. To find out if you can do this see the Legal Aid NSW brochure, Are you disqualified from driving? You should get legal advice before you apply. You won’t be able to apply if you have an uncompleted interlock order.
• Re-apply for your licence
  When your disqualification period is over, you must re-apply for your licence. You will not get it back automatically. If you drive before you do this you could be charged with ‘driving while cancelled’. Contact Transport for NSW on13 22 13 or visit www.nsw.gov.au to find outhow to get a new licence.
• Pay your fine
  If the court gives you a fine and you thinkyou will have trouble paying it in the 28days you have to pay it, speak to court staff before you leave about making a ‘time to pay’ arrangement.
  If you don’t pay the fine in the time you are told to pay it, Revenue NSW can take other action against you. If you need help to manage your fines debt, contact Revenue NSW on1300 655 805 or visit www.nsw.gov.au/moneyand-taxes/fines-and-fees.
  You may be able to get a Work and Development Order (WDO) which allows you to clear up to $1,000 a month off your fines through approved activities or treatment programs. For more information go to the WDO page.

You can appeal to the District Court if you are not happy with the magistrate’s decision, but you should get legal advice before you do this. You have 28 days from the date of the magistrate’s decision to lodge your appeal. You will also have to pay a fee. If you are on a Centrelink benefit or experiencing financial hardship, ask if the fee can be waived.

For more information about how to appeal, see the Legal Aid NSW brochure, Appealing to the District Court. If you had good reason for not being in court when the magistrate made the decision, you can apply to have the decision reviewed.