High range drink driving is one of the most common criminal charges dealt with in NSW courts, but that does not mean it is taken lightly. A blood alcohol concentration (BAC) of 0.15 or above puts you in the high range category, and the consequences are serious. You are looking at a mandatory licence disqualification, a criminal record, heavy fines, and the real possibility of a prison sentence.
If you have been charged with high range PCA (prescribed concentration of alcohol), understanding what you are facing and what options are available to you is important. The outcome of your case is not set in stone, and the right legal advice early on can make a genuine difference.
What Is High Range Drink Driving?
Under section 110 of the Road Transport Act 2013 (NSW), it is an offence to drive with a BAC of 0.15 or above. This is classified as high range prescribed concentration of alcohol, and it sits at the top of the three drink driving tiers in NSW.
The three ranges are low range (0.05 to 0.079), mid range (0.08 to 0.149), and high range (0.15 and above). High range is treated the most seriously because at that level of intoxication, your ability to drive safely is significantly impaired and the risk to other road users is substantial.
You can be charged with high range PCA whether you were pulled over at a random breath test, stopped by police for erratic driving, or involved in an accident. The charge applies regardless of whether anyone was injured or any damage occurred.
What Are the Penalties for High Range Drink Driving?
The penalties depend on whether this is your first offence or a subsequent offence.
First Offence
For a first offence, the maximum penalty is 18 months imprisonment and/or a fine of $3,300. The mandatory minimum licence disqualification is 12 months, with a maximum disqualification of unlimited duration. The automatic disqualification period (if the court does not specify) is 3 years.
Second or Subsequent Offence
For a second or subsequent major traffic offence within 5 years, the maximum penalty increases to 2 years imprisonment and/or a fine of $5,500. The mandatory minimum disqualification is 2 years, with the automatic period being 5 years.
Interlock Orders
If you are convicted of high range drink driving, the court will almost certainly impose an alcohol interlock order. This requires you to install an interlock device in your vehicle at your own expense, which prevents the car from starting if it detects alcohol on your breath. The interlock period for high range drink driving is a minimum of 24 months.
The interlock program is managed by Transport for NSW, and the costs of installation, rental, and removal of the device add up to several thousand dollars over the interlock period.
Will I Go to Jail for High Range Drink Driving?
This is the question most people ask first, and the honest answer is that it depends on the circumstances. A prison sentence is a real possibility for high range drink driving, particularly for second offences or where aggravating factors are present.
Aggravating factors that increase the likelihood of a custodial sentence include a very high BAC reading (0.20 or above is treated especially seriously), being involved in an accident, having passengers in the car (especially children), driving at excessive speed while intoxicated, prior drink driving convictions, and driving while disqualified.
However, many first offenders with a BAC in the lower end of the high range (0.15 to 0.17) and no other aggravating factors will avoid prison if they are properly represented and can demonstrate genuine remorse, insight into their offending, and steps toward rehabilitation.
Options that the court may consider as alternatives to full time imprisonment include intensive correction orders (which are served in the community under supervision), community correction orders, and in some cases a conditional release order without conviction, although this is uncommon for high range matters.
Can I Get a Section 10 for High Range Drink Driving?
A section 10 dismissal (now called a conditional release order without conviction under the Crimes (Sentencing Procedure) Act 1999) means the charge is dismissed without a conviction being recorded. This is the best possible outcome if you are found guilty.
For high range drink driving, a section 10 is difficult but not impossible to obtain. Courts are reluctant to grant them for high range matters because of the seriousness of the offence and the risk to public safety. However, in exceptional circumstances where you have a clean record, a very strong subjective case, and compelling evidence of rehabilitation, it can be achieved.
Factors that improve your chances include completing a traffic offenders program before your court date, obtaining a favourable assessment from a psychologist, providing strong character references, demonstrating that a conviction would have a disproportionate impact on your employment or livelihood, and showing genuine insight into your behaviour.
An experienced criminal lawyer will know how to present these factors to the court in the most effective way.
Possible Defences to High Range Drink Driving
While drink driving charges can be difficult to defend, there are several potential defences depending on the facts of your case.
Honest and Reasonable Mistake
If you genuinely and reasonably believed your BAC was below 0.15, this may form the basis of a defence. This is a high bar to meet, but it can arise in situations where a significant period of time has elapsed between your last drink and driving, and you had reasonable grounds to believe you were under the limit.
Challenging the Breath Test or Blood Analysis
The prosecution’s case relies on the accuracy of the breath analysis or blood test. If the testing equipment was not properly calibrated, the test was not conducted in accordance with the prescribed procedures, or there was a delay between driving and testing that could have affected the result, the evidence may be challenged.
The Home Safe Rule
Under section 109 of the Road Transport Act, you cannot be required to undergo a breath test if you are at your home when police arrive. If police followed you home and conducted the breath test after you were inside your property, the test may have been conducted unlawfully.
Not Driving or In Charge of the Vehicle
The prosecution must prove that you were driving or in charge of the vehicle at the time your BAC was at the high range level. If there is doubt about whether you were actually driving, or if your BAC may have risen between the time you stopped driving and the time you were tested (known as the hip flask defence), this can be raised.
What Happens at Court for High Range Drink Driving
High range drink driving is dealt with in the Local Court of NSW. You will receive a court attendance notice specifying the date and location of your first appearance.
If you intend to plead guilty, your lawyer will prepare submissions on your behalf addressing the penalty. This is where the quality of preparation matters. A well prepared plea in mitigation, supported by character references, a psychologist’s report, completion of a traffic offenders program, and evidence of any steps you have taken toward rehabilitation, can significantly influence the outcome.
If you intend to plead not guilty, the matter will be set down for a defended hearing where the prosecution must prove the charge beyond reasonable doubt.
In either scenario, having a lawyer who understands how the Local Court deals with these matters and what the particular magistrate is likely to respond to is a significant advantage.
Steps to Take After Being Charged
If you have been charged with high range drink driving, there are practical steps you should take immediately.
Get legal advice as soon as possible. The earlier your lawyer is involved, the more time there is to prepare your case properly.
Enrol in a traffic offenders program. Completing this before your court date demonstrates to the magistrate that you are taking the offence seriously and are committed to changing your behaviour.
Book an appointment with a psychologist who specialises in traffic and alcohol related assessments. A favourable report can carry significant weight in sentencing.
Gather character references from employers, colleagues, family members, or community figures who can speak to your good character and the impact a conviction would have on your life.
Do not drive while your licence is suspended or cancelled. Driving while disqualified is a separate criminal offence that carries its own penalties and will severely damage your case.
FAQs
What BAC is high range in NSW?
A BAC of 0.15 or above is classified as high range prescribed concentration of alcohol in NSW.
How long do you lose your licence for high range drink driving?
The mandatory minimum disqualification for a first offence is 12 months, with an automatic period of 3 years if the court does not specify. For a second offence, the minimum is 2 years with an automatic period of 5 years.
Can I avoid a criminal record for high range drink driving?
It is possible but difficult. A conditional release order without conviction (formerly section 10) can be granted in exceptional circumstances, but courts are reluctant to do so for high range matters. Strong legal representation and thorough preparation are essential.
Is high range drink driving an imprisonable offence?
Yes. The maximum penalty is 18 months imprisonment for a first offence and 2 years for a second offence. While many first offenders avoid prison, a custodial sentence is a real possibility, particularly where aggravating factors are present.
This article is for general information only and does not constitute legal advice. If you have been charged with a criminal offence, contact Davis & Associates for advice specific to your situation.
Call Davis & Associates
If you have been charged with high range drink driving in NSW, getting experienced legal advice early gives you the best chance of a favourable outcome. Chris Davis and the team at Davis & Associates represent clients across the Mid North Coast, Port Macquarie and wider NSW.
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