Losing Your Drivers Licence – The Guideline Judgement for High Range PCA.

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What is Prescribed Concentration of Alcohol?
Prescribe Concentration of Alcohol simply means the amount of alcohol measured in grams per 100mL of blood. High Range Prescribed Concentration of Alcohol (HRPCA) means a concentration of 0.15 grams or more of alcohol in 100mL of blood. This would mean that if you had an unrestricted licence, you would be at least 3 times over the legal limit of 0.05.

What are the penalties for HRPCA?
The penalties for HRPCA are as follows:

1st OFFENCE
Maximum Fine: $3,300.00
Maximum Term of Imprisonment: 18 months
Automatic Disqualification Period: 3 years
Minimum Disqualification Period: 12 months

2nd AND SUBSEQUENT OFFENCE WITHIN FIVE YEARS
Maximum Fine: $5,500.00
Maximum Term of Imprisonment: 2 years
Automatic Disqualification Period: 5 years
Minimum Disqualification Period: 2 years

Can a Disqualification Period Be Avoided?
If you plead guilty to HRPCA, a disqualification period can be avoided only if the Court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. This means that the Court has found the offence proven without recording a conviction.

The Guideline Judgement- How Does it Relate to You?
On 8 September 2004 the NSW Court of Criminal Appeal (NSWCCA) handed down a guideline judgement for the offence of “Driving with a HRPCA”. The NSWCCA stated that an ‘ordinary case’ is one where:

  1. You drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
  2. You were detected by random breath test;
  3. You have prior good character;
  4. You have nil, or a minor, traffic record;
  5. Your licence was suspended on detection;
  6. You pleaded guilty;
  7. There is little or no risk of re-offending; or
  8. You would be significantly inconvenienced by loss of licence.

The ‘ordinary case’ is now used by sentencing Courts as a template in determining whether your matter is similar or more or less serious. Prior to the guideline judgement most lawyers would have agreed that an ‘ordinary case’ was a very good case.

The NSWCCA went on to state, that in an ‘ordinary case’, an order under section 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate. A conviction cannot be avoided only because the offender has attended or will attend a driver’s education or awareness course. Further, the automatic disqualification period (3 years) will be appropriate unless there is a good reason to reduce the period of disqualification.

Good reasons may include the following:

1. The nature of the your employment;
2. The absence of any viable alternative transport; or
3. Sickness or infirmity of you or another person.

Obviously, the NSWCCA has stated that the penalties will be more severe for a person who commits a second or subsequent HRPCA offence (second offence within 5 years). A section 10 for a second or subsequent HRPCA ‘would very rarely be appropriate. In fact the Court stated that where the prior offence was a HRPCA any sentence of less severity than Community Service Order would generally be inappropriate.

Your moral culpability is increased if any of the following factors a present:

1. The degree of intoxication above 0.15;
2. Erratic or aggressive driving;
3. A collision between your vehicle and any other object;
4. Competitive driving and showing off;
5. The length of the journey at which others a exposed to risk; and
6. The number of persons actually put at risk by the driving.

Where a number of these factors are present to a significant degree, a sentence of less severity than imprisonment of some kind including a suspended sentence, would generally be inappropriate. Where a number of these factors are present to a significant degree for a second and subsequent HRPCA offence a sentence of any less severity than full-time imprisonment would generally be inappropriate.

It is the writer’s experience that most sentencing Courts have now adopted the principles for HRPCA and applying them to the offences of Novice Range PCA through to Mid Range PCA. Although the NSWCCA has stated that a driver’s education course is not a reason to make an order under section 10, it can be used as a reason for the sentencing Court to reduce the disqualification period or fine. The judgement fails to make the distinction between the experienced driver who has been driving for 30 years with nil record and the driver who has been driving for 1 year with nil record.

If your liberty, work or lifestyle is at stake due to a drink driving offence, you need a reliable drink driving lawyer on your side. Contact us to arrange free consultation.

Benjamin Goh
Partner