Drink driving charges and you – A guide to pleading guilty to a drink driving charge
So, you’ve been charged with a PCA offence…
This guide explains what to do if you are pleading guilty to a drink driving offence and have to go to a NSW Local Court.
Before you go to Court you should…
Get legal advice as soon as you can
It can take time to get legal aid or to see a private lawyer. If you prefer to speak for yourself in court, it is still important to get legal advice before your day in court.
Remember, the court will be making decisions about your future. So getting legal help is a good idea!
Request an interpreter if you need one
Ring the Local Court where your case is to be heard and ask them to book an interpreter in your language. If you are seeking legal aid, the Legal Aid Commission can arrange an interpreter for your appointment with a duty lawyer. Make sure you have your papers ready.
Who gives advice?
The Legal Aid Commission of NSW provides free legal advice to anyone on most matters. However, legal aid is only available for traffic offences if there is a real possibility of a gaol penalty, or there are exceptional circumstances.
If this is the first time you have been charged with a Prescribed Concentration of Alcohol (PCA) offence, it is unlikely you will get a gaol sentence. However, if:
a) it is a high range PCA offence and if it involves aggravating features such as a very high reading, an accident and/or dangerous driving, a gaol penalty is more likely and you may therefore be eligible for legal aid.
b) you have previously been charged with a high range drink driving offence, you face the risk of a gaol penalty and may be eligible for legal aid.
In those situations, you should apply for legal aid before your first court appearance. Speak to the duty solicitor at court.
If you then have to go to the Local Court, a duty lawyer will represent you if you are eligible for legal aid. To contact Legal Aid, ring your nearest office to make an appointment.
Private Lawyers provide legal representation and advice. For criminal, driving or traffic matters, it is best to obtain advice from a law firm or lawyer who specialises in these areas.
Fees for private lawyers vary, so make sure that you understand the likely costs involved at the first interview.
Getting ready for Court
Get references and prepare a letter to the Magistrate or written notes of what you will say. It may be helpful to get written references from people who can talk about your good character.
These references should be addressed to the Magistrate and refer to the current charges. Ask for the Legal Aid information card about Character References. The court will consider a number of factors in deciding the appropriate penalty and disqualification. These include:
Whether you believed you were over the limit when you drove
Any particular reason as to why you chose to drive
Whether you were detected by Random Breath Test or as a result of erratic or dangerous driving
The length of the journey/intended journey
The number of people put at risk by the driving (passengers, members of the public etc)
Any collision that occurred
Any significant effect that licence disqualification may have on you, your employment or other people who rely on you (children, sick relative, etc)
The absence of viable alternative transport
How long you have held a licence and what your overall traffic record is like
Your likelihood in reoffending
Either prepare a short letter in your own words to give to the Magistrate, or prepare written notes. Include any explanation that relates to the factors set out above. In particular, address:
Any special reason why you were driving
Why you were driving after consuming alcohol
In your own words, why you can give an assurance that you will not drink and drive in future
Any particular need you have for a licence eg. In your work or for personal reasons
If you need a driver’s licence for work make sure you have a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time
If you have other reasons for needing a driver’s licence (eg. A disabled child, health problems) make sure you have evidence (ie. Doctor’s certificate or report) to support this
What your weekly income is and expenses you have to pay (which can assist the court in calculating any fine to be imposed).
What should you do at court?
You should not drive to court in case you lose your licence. Bring your licence with you unless the police have already taken it, as the court may require you to surrender it.
When you get to court, find the court officer and tell them that you are unrepresented and that you are pleading guilty.
Check the police fact sheet and certificate
The police will have a fact sheet which says why you were arrested. It may also refer to what the police say you told them about how many drinks you had. Make sure you read the fact sheet. Also, check the certificate which states your blood alcohol level and the machine printout from the breath analysis machine to see that they match the time on the police fact sheet. If you disagree with what the police say happened, you may tell the Magistrate when it is your turn to speak.
The police prosecutor should also show you a copy of your previous criminal record if you have one and a copy of your driving history.
Read these documents to make sure they really are yours.
You should dispute any incorrect information on your criminal or traffic record.
Listen to other people make their submissions in court
Wait for your name to be called. It can be helpful to sit inside the courtroom and listen to other people presenting guilty pleas to give you a better idea of how to present yours. When you are called, enter a plea of guilty and either hand your letter to the Magistrate or read from prepared notes.
Give the court your written references, letter from your employer, and any other supporting documents.
In some courts a diversionary program called The Traffic Offenders Program is conducted. Generally, if you attend the program and complete the assignments, the penalty applied will be reduced. If it is available you can ask the Magistrate to refer you to the program.
After the court’s decision: What can you do?
If there is something you don’t understand about the court’s decision, ask the Magistrate to explain. Remember to do the following:
1. Do not drive while disqualified
You will be disqualified from driving for a period of time. You must hand in your licence. The maximum penalty for driving whilst disqualified is 18 months gaol and/or a $3,300 fine. There is also an automatic minimum disqualification for an additional 12 months.
2. Re-apply for your licence
Once the disqualification period is over, you have to re-apply for your licence as you will not get it back automatically. You will be a cancelled driver until you reapply for your licence (it is an offence to drive whilst cancelled).
If you were charged with Mid Range or High Range PCA, your licence should have been suspended and taken away on the spot by the police. If this is the case, ask the Magistrate to start your disqualification period from that date.
If you think you will have trouble paying your fine within 28 days, speak to court staff before you leave about making a ‘time to pay’ arrangement.
If you do not pay the fine within the time set, the State Debt Recovery Office (SDRO) can impose a range of penalties against you. For more information call the SDRO on 1300 655 805.
Getting Help
This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.
This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.
Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.
Requirements under Section 10
Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed, and
(d) any other matter that the court thinks proper to consider.
These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:
- An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
- An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
- An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.
Section 10 and traffic offences
A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.
However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.
In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.
In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”
The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.
While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.
If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.
Getting Help
Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000
Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev