The offence of special range PCA (prescribed concentration of alcohol) under section 110(2) of the Road Transport Act 2013 is committed by a person who is subject to a zero alcohol limit who drives a motor vehicle on a public road with a blood alcohol concentration of between 0.02 and 0.049.

Broadly speaking, this offence will usually apply to a person who has a special licence such as a learner licence, P1 provisional licence or P2 provisional licence. It will also apply to bus drivers and taxi drivers who will usually have a 0.02 limit while operating a bus or taxi service.

The offence is also known as special range drink driving or special range PCA

Infringement or Court Attendance Notice

Police can issue either:

• A penalty infringement notice, which carries a $572 fine; or
• a court attendance notice for the offence.

If you receive an infringement notice, you will also either receive an immediate suspension notice from the police or one subsequently from the RMS suspending your licence for a period of three months.

Special range PCA by Penalty Notice

If you receive a penalty notice, you have the option to make a court election on the offence and take the offence to court, or to file a licence appeal against the suspension.

A ‘Court Election’ is an election to have the traffic offence decided by a court (in the criminal jurisdiction), and requires the person electing to enter a plea of guilty or not guilty. Any conviction imposed by the court following a court election is recorded as a criminal conviction, and then the disqualification periods become mandatory.

Court elections are often made by persons wishing to avoid the suspension for a special range drink driving ticket.

Rather than court electing the ticket, you can file a licence appeal (link to licence appeal page) in relation to the suspension. These appeals give the court the power to reduce the suspension period if it is a Transport for NSW suspension, but Immediate police suspensions are much more difficult to change as they require that you demonstrate exceptional circumstances.

There are many different pros and cons to the choice between a licence appeal or a court election for a special range PCA penalty notice, and the law in this area is very complex. It is important that you get expert advice from a drink driving lawyer who is familiar with the intricacies of these options.

Special range PCA by Court attendance Notice

If you receive a court attendance notice, or elect to take the matter to court, the maximum penalty for this charge depends on whether a person is a first offender (20 penalty units) or second and subsequent offender (30 penalty units).

This offence is also subject to mandatory disqualification periods and interlock orders for second or subsequent offences.

Disqualification Periods for Special Range Drink Driving

Police have the power to issue an immediate licence suspension for a special Range Drink Driving charge. Usually, the Court will backdate your disqualification period to commence at the time that the police originally suspended you from driving.

For first offences, the automatic disqualification period is six months which can be reduced to a minimum of 3 months.

For second or subsequent offenders, the minimum disqualification period is one month, and the maximum is 3 months where an interlock order is also made. Where an interlock exemption order is made, there is an automatic disqualification period of 12 months which can be reduced to a minimum of 6 months.

The minimum disqualification period for a second and subsequent Special range drink driving offence is lower than a first offence, because of the Mandatory Interlock Orders that apply.

Mandatory Interlock Orders for Special Range Drink Driving

Mandatory interlock orders automatically apply to second and/or subsequent special range drink driving offences.

Mandatory interlock orders require the driver to obtain and serve a period of time on an interlock licence after having completed their disqualification period. During this period, the person must install and maintain an interlock device their vehicle.

Unless a driver applies for and is granted an interlock exemption order, a mandatory interlock order will be automatically applied when they are convicted.

To receive an exemption from a mandatory interlock order, a person needs to satisfy Section 212 of the Road Transport Act 2013. This provision requires:

(a) That the person does not have access to a vehicle in which to install an interlock device, or

(b) That they have a diagnosed medical condition that prevents them from providing a sufficient breath sample and installing the device is not reasonably practical.

The Mandatory Interlock Order for a second special range PCA offences is 12 months.

What is Special Range Drink Driving?

The offence of driving with special range prescribed concentration of alcohol (PCA) under section 110(2) of the Road Transport Act 2013 which states:

(2) Offence–special range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the special range prescribed concentration of alcohol—

(a) if the person is a special category driver in respect of a motor vehicle–drive the motor vehicle, or

(b) if the person is a special category driver in respect of a motor vehicle–occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is a special category supervisor in respect of a motor vehicle and the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

The definition of “drive” is very broad. It includes not only actually driving the vehicle, but also being in control of the steering, movement or propulsion of a vehicle.

A “Special Category Driver” includes but is not limited to:

• P and L platers;
• People on a interlock licence;
• Taxi/uber and bus drivers.

What must be proven?

For a person to be found guilty of Special Range Drink Driving the prosecution must prove each of the following matters beyond a reasonable doubt:

• That you “drove” a motor vehicle; or
• That you are a “special category driver”
• Were in the drivers seat and attempted to put the vehicle in motion; and
• At the time, your Blood Alcohol Concentration was between 0.020 and 0.49

If the prosecution do not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear the Matter?

This offence is summary offence, which means that it will be finalised in the Local Court of New South Wales.

Possible Defences to Special Range Drink Driving

The following defences may be available for a Special Range Drink Driving charge:

• That your Blood Alcohol Content was not higher than 0.020 at the time your drove (for example, if you drunk more after you finished driving);
• That you were not the driver of the vehicle;
• That you were not “driving” as defined by the Act;
• That there was an issue with the way the breath test/analysis was conducted which might render the reading inadmissible;
• That you are not a special category driver

For advice or representation in any legal matter, please contact Armstrong Legal.