Combined Offence of Drink AND Drug Driving (NSW)
When a person in New South Wales is caught driving with a BAC above the legal limit as well as an illicit drug in their system, they may be charged with an offence under section 111A of the Road Transport Act 2013. This offence deals with the situation where a driver has both the presence of a prescribed or illicit drug in their oral fluid, blood or urine and a prescribed concentration of alcohol in their breath or blood. The penalties from drink and drug driving are harsher than the penalties for regular drink driving offences.
Like ordinary drink driving offences, a person may be charged with drink and drug driving under section 111A on the basis of low range, mid-range or high range BAC. However, the offence is more serious than regular drink driving offences with a greater maximum penalty than the corresponding drink driving offences. This reflects a higher level of seriousness due to the presence of illicit drugs. These offences are also subject to mandatory licence disqualification periods and the mandatory interlock order scheme.
Presence of prescribed or illicit drug
To be found guilty of this offence, a person does not need to be under the influence of or intoxicated by a prescribed or illicit drug. The offence requires only that the person have an illicit drug present in their system while driving. As all driving laws in New South Wales are strict liability offences, the police do not need to prove that the person intended or knew that they had the drug in their system; they only need to establish the presence of a certain prescribed or illicit drug in the person’s system while driving.
Mandatory Interlock Order
When a person is convicted of a mandatory interlock offence, an alcohol interlock order is automatically imposed unless an exception applies. The interlock order disqualifies the person from driving for a period of time and requires them to then obtain an interlock license. An interlock device is then installed in their vehicle preventing it from starting if there is alcohol present in the driver’s system.
Unless a person qualifies for an interlock exemption order, a mandatory interlock order will be automatically imposed when they are convicted of this offence. If they are not convicted of the offence, the order will not be made.
If a person is convicted of the offence, they can apply for an exemption from a mandatory interlock order. This should be prepared prior to court as the application should be dealt with at the same time the sentence is received.
In order for a person to obtain an exemption, they need to satisfy the court of one of the grounds under section 212 of the Road Transport Act 2013. These are:
- That they do not have access to a vehicle in which to install an interlock device; or
- That they have a diagnosed medical condition that prevents them from providing a sufficient breath sample and installing the device is not reasonably practical; or
- If the offence involves a mid-range PCA reading only and the matter is the person’s first offence, where an interlock order would cause severe hardship and it is more appropriate in all the circumstances not to make an interlock order.
Will I Get a Criminal Record for a Drink and Drug Driving Offence?
A criminal conviction is likely for an offence of this kind; however, it is not inevitable. All drink driving offences are considered to be serious offences. As this offence includes the presence of an illicit substance as well as alcohol, it is looked upon even more severely.
Is it Possible to Avoid a Criminal Conviction for a Drink and Drug Driving Offence?
It is possible to avoid a conviction for a drink and drug driving offence, in limited circumstances. If the court is convinced that it is appropriate not to convict a person, their matter may be dismissed under Section 10(1)(a) or with a Conditional Release Order without conviction under Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
However, if a person has already received the benefit of a non-conviction order within the previous five years for a similar offence, Section 203 of the Road Transport Act 2013 prevents a non-conviction order from being available again.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.