High range drink driving / high range PCA

Drink driving is one of the most common offences sentenced in in the Local Court in NSW. Before 2004, there had been a great difference in the way people were being sentenced for high range drinking driving. In order to achieve more consistent sentences or penalties, the NSW Court of Criminal Appeal gave a guideline judgment to provide courts with guidelines for dealing with high range drink driving. The judgment is called the Guideline Judgment for High Range Drink Driving [2004] NSWCCA 303 . The guideline is also used for sentences in mid and sometimes low range PCA matters.

But first - what is a high range PCA offence?

A high range PCA offence occurs when a person drives or attempts to drive a vehicle with a blood alcohol concentration (BAC) of 0.15g. It is the most serious PCA offence.

In a lot of cases, police will conduct a roadside breath test. Sometimes this is a random test, other times, it can be after a road accident. The roadside test provides an indicative reading and if it comes back positive, the person will ordinarily be required to attend a police station immediately to do a breath analysis. If that second breath analysis is taken within 2 hours of driving, it can be used to determine your BAC and relied upon by police in a prosecution.

In some cases, the BAC will be calculated from a sample of blood taken at a hospital.

A mid range PCA is a BAC from 0.08 and below 0.15. A low range PCA is a BAC over 0.05 and below 0.08. Find out more about less serious drink driving offences.

In most cases, police will suspend your licence immediately which means you will not be able to drive (driving while suspended is itself a serious offence). At sentence, the court will in most cases, disqualify you from driving for a period of time. If your licence had been suspended by police, the court takes this period of time into account in determining the disqualification period.

What is the Guideline Judgment?

Let’s break it down.

The Guideline Judgment talks about the history of the offence, what has been done in the past and sets out a set of guidelines for future sentencing. For people facing a high range PCA sentence, the important parts cover:

What an ordinary case of high range PCA is
The moral culpability of the person
The disqualification period
Sentencing for ordinary case and for second and subsequent offences.

A sentence for drink driving has two components – the penalty itself and the disqualification period. We’ll talk more about penalties and disqualification periods below.

Let’s first have a look at what an ordinary case is.

What is an ordinary case?

The person drove to avoid personal inconvenience or because they did not believe they were sufficiently affected by alcohol

The person was detected by a random breath test
The person is of good character
The person has no, or a minor traffic record
The person had their licence suspended straight away
The person has pleaded guilty
There is at no, to little risk of re-offending
The person would be significantly inconvenienced by loss of licence

If a person’s matter is determined to be an ordinary case, and this is their first High Range PCA charge, the Guideline Judgment says:

An order dismissing the charge under s 10 (a non-conviction penalty) will rarely be appropriate;
A conviction cannot be avoided because the person has attended, or will attend, a driver’s education course; and
The automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification.

Moral culpability

The court is also to consider the moral culpability of the person. What this means is that the circumstances of the offence may increase it serious even though the consequences of different matters may be the same. The moral culpability is affected by a number of factors. Then Guideline Judgement sets out the factors that will increase the moral culpability of a person, which will in turn, generally increase the severity of the sentence imposed. Those factors are:

The degree of intoxication above 0.15

Erratic or aggressive driving

A collision between the vehicle and any other object

Competitive driving or showing off

The length of the journey at which others are exposed to risk and

The number of people actually put at risk by the driving.

Generally speaking, the reason why the person was intoxicated is not a matter to be taken into consideration. The reason for this is because the offence occurs when the person gets behind the wheel and drives – rather than being intoxicated in the first place.

If the Court finds that your moral culpability is increased, the Guideline Judgment again sets out that an order under section 10 will be inappropriate. If there are several factors adding to your moral culpability, then any sentence less than a term of imprisonment will generally be inappropriate.

In a case where the Court finds your moral culpability is high, and/or this is your second or subsequent High Range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

Disqualification period

The automatic disqualification period for high range PCA is 3 years.

The Guideline Judgment says that the automatic disqualification period will be appropriate unless there is a reason to reduce the period, taking into consideration:

The nature of the person’s employment;
Where there are no other viable transport options; and/or
The health of the person or someone they care for requires access to a vehicle.

In addition to this the legislation sets out that a person must have an interlock device installed in their vehicle after the disqualification period. It is important to remember that you need to reapply for a new licence after a disqualification period before driving again.

Second and subsequent offences

Naturally, the penalties for second and subsequent offences are higher than for a first offence.

In a case where the Court finds your moral culpability is high, and/or this is your second or subsequent High Range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

Where to now?

Kingston Fox Lawyers can help. Book a free consultation by clicking the button below or give us a call on 0457 781 133

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Aug 11 High range drink driving / high range PCA