HomeHPLLow Range PCA (Drink Driving): Things to Know
This article does not constitute legal advice. It is general in nature and is not an appropriate substitute for considered legal advice that is specific to your circumstances and the facts in your matter. Please contact us to obtain considered and specific legal advice.
What is Low Range PCA?
PCA means Prescribed Concentration of Alcohol.
In NSW, there are 5 PCA offence categories:
Novice range (0.00 to 0.019 for a Learner, P1 or P2 driver)
Special range (0.02 to 0.049 for a Learner, P1 or P2 driver or a bus or taxi driver)
Low range (0.05 to 0.079)
Mid-range (0.08 to 0.149)
High range (0.15 and higher)
‘Low Range’ indicates that the person is just over the legal limit. It is generally considered to be the least serious of the drink driving charges.
Nonetheless, there is a growing movement towards a zero tolerance approach to these offences, and it is becoming more difficult to convince the Courts to use leniency in sentencing.
What are the penalties?
Second or subsequent offence
Penalty Notice fine
Immediate licence suspension
Maximum court-imposed fine
Automatic disqualification (in absence of a court order)
For a first offence, you will typically receive a Penalty Notice and an automatic and immediate 3 month suspension of your licence. You will not need to go to Court BUT you can elect to have your matter heard by a Court as explained below.
If I am caught Low Range Drink Driving, what are my options?
1. Accept police suspension (1st offence only); 2. Elect to go to Court and plead guilty; or 3. Elect to go to Court and plead not guilty.
What is the difference between a suspension and a disqualification?
A suspension can be enforced by government agencies (for example, Police or Transport for NSW), whilst a disqualification is imposed by a Court.
What does it mean to ‘elect’ to have my matter heard by a Court?
In this context, ‘Election’ simply means to choose to have the matter heard by a Court. You can choose to accept the Police suspension or to have your case heard by a Magistrate.
A critical point to keep in mind is that electing to have your matter heard by a Magistrate does not pause the Police suspension, so the suspension will remain in place until the matter is heard by a Court. It is often the case that a substantial period of the suspension will already be heard by the time the matter gets to Court.
What are the advantages and disadvantages of accepting the Police suspension?
Prior to 2019, low range drink driving did not result in an immediate disqualification and the matter would have automatically been sent to the Court for determination. Since 2019, if you are found to be driving with a low range blood alcohol content, your licence will be immediately suspended for 3 months.
Accordingly, if you seek to have your low range drink driving charge considered by a Court you should seek legal advice at the earliest opportunity to assess your prospects at achieving a better outcome in Court.
Whilst the Court has the discretion not to apply a disqualification period, you also risk a harsher sentence and criminal conviction. A criminal conviction can only be imposed by a Court of Law, so if you keep your matter out of Court, you do not risk a conviction. HPL Law Group can provide expert advice on your prospects.
Accordingly, if you seek to have your low range drink driving charge considered by a Court, you should seek legal advice at the earliest opportunity to assess your prospects at achieving a better outcome.
What will happen if I go to Court and plead not guilty?
If you plead not guilty, your matter will go a hearing and the Police will need to prove beyond a reasonable doubt that you were in fact over the legal limit whilst driving.
We recommend that you speak with your lawyer about your prospects because in the event that you are found guilty you will generally receive a tougher sentence than if you had plead guilty.
If you plead not guilty, our lawyers are able to appear as solicitor advocates on your behalf.
What will happen if I go to Court and plead guilty?
This means that you will admit guilt to the Court and ask the Court for leniency in your sentence. In making a decision the Magistrate will consider:
The charge sheet/Police Facts;
Any subjective material tendered on your behalf;
Submissions made on your behalf; and
Submissions made by the Police Prosecutor (if any).
But in exception circumstances, you will not speak as your lawyer will do this for you.
Assuming I plead guilty, what types of things will the Court take into account?
If you have a good traffic and criminal history;
Your explanation for being on the road;
Any aggravating factors (poor driving, passengers etc.);
Any mitigating factors; and
Any rehabilitation you have undertaken.
Assuming that I plead guilty, what type of things can help my case if I elect to have my matter heard by a Court?
Evidence of a genuine need for a licence;
Evidence of contrition remorse and/or a credible explanation;
Evidence of participation in a Traffic Offenders Rehabilitation Program; and
Evidence of participation in counselling if appropriate.
Speak to our team of experienced lawyers about which of the above are appropriate for your case and how best to present them.
What are my prospects of a Section 10 or a Conditional Release Order?
If I elect to go to Court and plead guilty, what will HPL Law Group do for me?
Review Police documents and provide frank legal advice about your prospects;
Provide advice about what you can do to improve your prospects;
Negotiate better Police Facts, where appropriate (NB: generally, there are no Police Facts for low range first offence matters);
Assist you with the organisation of relevant subjective material (references, letters of apology, source completions certificates);
Attend Court with you;
Make oral (and often written) submissions on your behalf;
Answer questions posed by the Magistrate; and
Explain the outcome to you.
What are the defences for Low Range Drink Driving?
There are a number of possible defences to drink driving charges. These include:
1. Dispute as to the reading i.e. that the level of alcohol Police allege was in your blood stream at the time of the offence.
2. The test was not conducted lawfully ie. that Police have not followed proper procedure when taking breath or blood specimens. These can be complex and detailed. Failure to follow protocol can result in a failed prosecution.
3. Identity i.e. that you were not the driver; and
4. Not under influence i.e. that you were not under the influence of any drug and/or alcohol at the time of driving.
Can I apply to have my matter dealt with on Mental Health grounds?
The technical answer is yes. The Local Court has the power to deal with almost all offences by way of a Mental Health Diversion. This would mean that you would be deferred into a treatment program without the matter proceeding to conviction.
In practice though, these applications should be approached cautiously as they are rarely successful in drink driving matters. You should get specific legal advice on this issue.