Criminal Law

By Charlene Chalker-Harris


Drink, drive, and be shown no mercy: New South Wales drink driving law reforms

Non-conviction orders are well known and highly sought after.  They are most often seen in criminal matters of objectively lower seriousness, including low-range and mid-range drink driving offences, as well as drug driving offences, resulting in the offender walking away without a conviction and with their right to drive still intact.  However, from 20 May 2019, people committing low-range, special range or novice range drink driving offences in NSW can lose their licence immediately and face a fine of $561, without having the opportunity for a Court to consider any defence they have or any need they may have for their licence.

Where offenders previously had to face a court to have their charge dealt with, this new reform will allow the above drink driving offences to be dealt with by an infringement notice, meaning they never have to attend court in relation to the offence.  While that may sound appealing at first blush, there are a wealth of complicating factors and a number that suggest it is far less than advantageous for the community and for the potential offender.

No doubt the intention is for this new scheme to reduce the number of offenders appearing in court and to free up valuable court time.  However, the president of the NSW Law Society, Elizabeth Espinosa, has expressed concerns on behalf of the Law Society.  She said, “We are particularly concerned that the effect of the ‘drink driving is a crime’ campaign will be diluted if low-range drink driving offences are dealt with by penalty notices rather than by the courts.”  She further commented, “There is a genuine deterrent factor for first-time low-range offenders in going to court. The experience, and shame, of having to appear before a magistrate, undertake a traffic offender program, and be warned of the consequences of further offending may well have a significantly greater deterrent effect on future offending than a penalty notice, fine and suspension.”

And I agree.  From the moment a client commits an offence, more often than not their biggest concern is having to go to court.  In my experience, the shame and humiliation of having to tell their friends and family about the offence in order to ask for character references, of receiving a public dressing down by the Magistrate in front of a court room full of people, and the fear of getting hit with the maximum penalty (which is significantly more than the 3 month immediate suspension offered under the new infringement notice), are the main deterrents from reoffending.  It is the experience of the court proceedings inspiring fear and trepidation, not just the period off the road, that deters people from re-offending and which ultimately helps them recognise the seriousness of the offence itself.

Take a wealthy man who works in an office as an example.  He drinks and then drives with a blood alcohol concentration (“BAC”) of 0.07, receives an infringement notice, loses his licence for three months, and is forced to pay a fine.  However, because of his financial position and his need to only travel to and from the office once a day, he is able to simply take an Uber to and from work, and is not truly inconvenienced in the same way that a person of lesser financial means would be, or in the way that a tradesman truly dependent on their licence would be.  The infringement notice and immediate suspension therefore does not impact all offenders equally; the tradesman may lose his job as a result of being unable to transport tools between worksites.  On the other end, the wealthy office worker has not even been inconvenienced enough to deter him from doing it again and he re-offends, this time injuring or killing someone.

Magistrates alone used to have the discretion of deciding how the matter ought best be dealt with, taking into account the impact that a loss of licence would have on an individual including matters such as whether their business would suffer as a result, whether their terminally ill mother would be unable to get to her daily dialysis appointments without her daughter (the offender, and her sole carer) able to drive her, or whether they live in rural New South Wales without access to public transport.  These types of factors can be considered in combination with matters such as a lengthy driving history without prior offences, good character, contributions to the community, and mental or physical health issues suffered by the offender.  Throw into the mix extenuating circumstances such as driving too soon after drinking because you got a call from your wife who was going into labour, and there may be enough to persuade a magistrate to exercise discretion and make a non-conviction order.

However, that discretion is taken away from magistrates the second police decide to issue an infringement notice and immediate suspension.  In doing so, the offender is stripped of their licence immediately without the opportunity to have their defence heard, or their relevant circumstances taken into consideration.  The only way to get around this is to lodge an appeal against the suspension to bring the matter before a magistrate.  Unfortunately, this is likely to result in further court appearances that the reform is no doubt trying to avoid.

To put it in context, these new infringement notices can be issued for low-range drink driving offences (which refers to a driver with a BAC of 0.05 to 0.079 grams of alcohol in every 100 millilitres of blood), for special range drink driving offences (a BAC of 0.02 to 0.049), and even for novice range drink driving offences (a BAC of 0.01 to 0.019).  These offences, particularly the low-range offences where the offender is allowed to drive with a limited amount of alcohol in their system, are often the result of genuine miscalculations and ‘morning after’ offences, being offences committed when driving the morning (or even afternoon) after a heavy night of drinking.  It can often be the difference between a few mouthfuls of alcohol or an extra hour before driving.  Relevantly, it requires no intention to commit a criminal offence.  Put simply, it doesn’t matter if it was an honest mistake.

Often, the offender is mortified to have committed an offence and genuinely shocked to learn they still have that much alcohol in their system.  The shame and humiliation of having to go to court is alone enough to deter them from ever repeating that behaviour.  In these cases of genuine misjudgement the offender often makes the most of the leniency shown to them, being so greatly impacted by the Magistrate’s comments that they fully appreciate how lucky they were to be shown that leniency.  It is not something that they take for granted.  Of course, there are those that take non-conviction orders for granted, however is not to say that the rest should suffer. To lose the opportunity to be afforded the leniency of a non-conviction order which would allow the offender to keep their licence is harsh and reduces what used to be judicial discretion to a mere administrative infringement notice.

The danger is, of course, that many offenders would not even be aware of their options such as discharge without conviction, a possible reduction in penalty and the availability of therapeutic models such as traffic offender intervention programs.  With immediate suspensions imminent for these drink driving offences it will become more important than ever to engage a lawyer quickly to obtain advice and potentially avoid serving the immediate suspension.  For advice and representation if you find yourself in this situation, contact Aulich Criminal Law on 6279 4222.