HIGH RANGE DRINK DRIVING / HIGH RANGE DUI LAWYERS SYDNEY
High Range drink driving, High Range DUI & PCA is a drink driving charge that is issued on a person when they deliver a Blood Alcohol Concentration of 0.150 and above. A High Range PCA offence is considered very serious since any Blood Alcohol reading over the High Range threshold is considered to have certain effects on the way the human body can function and in particular operate a motor vehicle. Heavy fines and penalties are reserved for High Range PCA offenders and certainly a term of imprisonment is a very likely outcome for serious offenders.
A person is deemed to have committed the offence of High Range PCA if their Blood Alcohol Concentration is 0.150 or above.
Penalties for High Range Drink Driving
If you plead Guilty to a High Range drink driving offence or if you plead Not Guilty and lose then unless you can obtain a section 10 dismissal you will be convicted by the court and have your licence disqualified.
The Court has discretion whether or not to record a conviction against for your drink driving offence. In making its decision the Court will take into account a number of factors including your traffic history, traffic education, occupation, character, age, family and living situation plus many other objective and subjective issues. After taking into consideration these issues the court MAY decide to provide you with a one off reprieve and not issue you with a conviction.
Section 10 of the Crimes (Sentencing Procedure) Act allows a court that finds a person guilty of High Range PCA the discretion not to impose a conviction against them. This being said, in order for a court to use such discretion to dismiss a High Range PCA charge pursuant to a section 10 dismissal is extremely rare and circumstances must be so extreme for a Court to exercise its discretion for such a charge.
If you receive a conviction by the Court for High Range PCA then it is mandatory for the Court to disqualify you from driving for a certain period of time. Legislation sets out a minimum period of disqualification should you be found guilty and receive a conviction.In saying this the legislation also sets out a maximum penalty or sentence that it can hand down, however this is usually reserved for repeat offenders or offences involving extreme aggravating circumstances.
In addition to the minimum and maximum penalties there is an automatic period of disqualification which a person can expect to receive unless they have very strong and convincing reasons why the court should not view the matter as a typical High Range PCA offence. The following penalties and disqualification periods apply for for an offence of High Range PCA:
High Range Drink Driving – 1st major traffic offence:
- Maximum fine – $3,300.00
- Maximum jail term – 18 months
- Unlimited maximum disqualification period
- Minimum disqualification period – 12 months
- Automatic disqualification period – 3 years
High Range Drink Driving –2nd or subsequent major offence within 5 years:
- Maximum fine – $5,500.00
- Maximum gaol term – 2 years
- Unlimited maximum disqualification period
- Minimum disqualification period – 2 years
- Automatic disqualification period – 5 years
GUIDELINE JUDGMENT FOR HIGH RANGE PCA / DUI
There is much talk about what is known as the “GUIDELINE JUDGEMENT”.
Let us explain.
On 8 September 2004, the Court of Criminal Appeal handed down a guideline judgment in relation to the offence of High Range PCA (Re: Application by Attorney-General (No. 3 of 2002) (2004) 61 NSWLR 305).
In this guideline judgment the court established what a model or ordinary High Range PCA case would involve. The purpose of this was to provide a meaningful and structured guidance to the way in which judges handed down penalties in the sentencing process for High Range PCA. The lead judgment was handed down by Howie J, there is no substitute for reading the whole judgment however a summarised version of the guideline is as follows:
Ordinary case of high range PCA / DUI
(1) An ordinary case of an offence of high range PCA is one where:
- the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
- the offender was detected by a random breath test;
- the offender has prior good character;
- the offender has nil, or a minor, traffic record;
- the offender’s licence was suspended on detection;
- the offender pleaded guilty;
- there is little or no risk of re-offending;
- the offender would be significantly inconvenienced by the loss of licence.
(2) In an ordinary case of an offence of high range PCA:
- an order under s 10 of the Sentencing Act will rarely be appropriate;
- a conviction cannot be avoided only because the offender has attended, or will attend, a driver education or awareness course;
- the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
- a good reason may include:
(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
- an order under s 9 of the Sentencing Act will rarely be appropriate;
- an order under s 10 of the Sentencing Act would very rarely be appropriate;
- where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
- 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;
- the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
- an order under 9 or s10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
- where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
- a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
- where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate
POSSIBLE DEFENCES FOR HIGH RANGE DUI / PCA
High Range DUI / PCA – 2 Hour Breath Analysis Rule:
It will be up to the police to show and if need be prove in Court that you registered a Blood Alcohol Concentration (BAC) reading of 0.150 or higher at the time you were operating a motor vehicle.
Police procedures involve creating a Breath Analysis Certificate which is generated by the Police breath analysis instrument. Police are obligated to provide you with a copy of this Breath Analysis Certificate.
One possible defence that may arise out of this situation relates to the time period in which Police conduct the breath analysis. Police are obligated by law to conduct the breath analysis or blood sample within 2 hours after the event or time in which a person was operating a motor vehicle.
Any evidence produced before the Court which fails to follow these police procedural obligations MAY be found to be inadmissable, subsequently the charge may be dismissed or reduced to a lesser charge.
High Range DUI / PCA – You were not the driver of the motor vehicle:
It is important that when a person is charged with High Range PCA the Police have a procedural and legal obligation to prove that the person being charged was in fact the person operating the motor vehicle on a public or road related area. Just because Police may see a person operating a motor vehicle not on a public (or relevant) road does not give the Police the right to assume that they had been driving in such an area.
Thus, it is up to Police to prove that the person being charged was driving the vehicle was actually occupying the driving seat of the motor vehicle and was operating or attempted to put the vehicle in motion.
Police must also prove that the person being charged was doing so on a operating or attempting to operate a motor vehicle on a public road or road related area.
If Police cannot prove these elements of the charge then this MAY be cause for having the charge dismissed.
High Range DUI / PCA – Breath test taken at your home
Police are not allowed to perform breath analysis tests on you once you have entered your usual place of residence. Such a procedure is unlawful and any breath analysis tests performs may be inadmissable before a Court of law which would make it more difficult for Police to prove their case.
Usually if a person is at their place of residence and police can prove that they were operating a motor vehicle then they will do, and are allowed to, perform alternate tests including general observations such as:
- alcohol on breath
- glassy eyes
- slurred speech
If Police witness you driving erratically or find alcohol in your vehicle then these observations can also be included as evidence against you.
However, for the purpose of running a defense it is possible to have evidence dismissed should the Police not act lawfully in relation to obtaining a breath or blood sample.
High Range DUI Lawyers Sydney
CONTACT US ABOUT HIGH RANGE DUI LAWYERS SYDNEY:
Boorman Lawyers NSW & QLD Solicitors
Please contact Josh Boorman today to discuss your matter over the telephone or via email for an initial FREE consultation regarding High Range Drink Driving, High Range DUI Lawyers Sydney, High Range PCA and any other traffic matter.