Crashing and Burning Harder Than Ever in New South Wales

May 31, 2019

Analysis of the New Drink and Drug Driving Laws in New South Wales

The recent amendments made to the Road Transport Act 2013 (NSW) have come into effect as of 20 May 2019 and enable a police officer to issue an on the spot 3-month licence suspension and $561 penalty notice (fine) for all drink and drug driving offences in New South Wales, including even for low-range offences.

The specific changes mean that:

Novice (L and P plate drivers) with a blood alcohol concentration (BAC) of between 0.001 and 0.019;
Drivers with a special range PCA (A special category of licence holders) with a BAC of 0.020 to 0.049;
Drivers with a low-range PCA, being full licence holders with a BAC of 0.050 to 0.079; and
All classes of drivers who have the presence of an illicit drug in their system,

can all receive an immediate 3-month licence suspension and $561 penalty notice.

Criticisms of New Laws:

Not only are the applicable penalties for these new laws out of reasonable proportion with other drink and drug driving laws in Australia and across the world, they have been met with extensive criticism for the law’s underlying ‘zero-tolerance’ policy and its lack of effectiveness at increasing road safety. The NSW Government’s “Zero-Tolerance” policy inevitably means that the police are only looking for a ‘mere trace’ or ‘presence’ of drugs or alcohol to be within someone’s system, as opposed to investigating whether that person’s driving capability is ‘impaired’ by a drug depending on the level of drug the driver has in their system. This means that a driver can still be charged and convicted under these laws where it has been days since they last consumed an illicit substance, as was the case with Joseph Carrall who followed police’s advice to wait one week after consuming cannabis to ensure no traces were in his system, yet when he drove nine days later, trace elements were still found in his saliva when pulled over by Police.

The new drink and drug driving laws enacted by the NSW Government were specifically introduced to increase road-safety, however there is no evidence to suggest, nor any accurate way to determine, the real impacts of Mobile Drug Tests (MDTs) or these new penalties on the safety of road-users.

While evidence supports the positive impact RBTs have had at reducing road fatalities through specific and general deterrence, there is no evidence to suggest, nor any accurate way to determine, the real impact that roadside drug testing is having on the safety of road-users.

Additionally, the practical impacts of these new laws are more severe for those living in regional areas, due to a lack of public transport. Accordingly, when their licence is disqualified their quality of life is adversely impacted, through being unable to independently get to work or perform family and household tasks (groceries, picking up/dropping off children at schools, running errands, etc.).

What does this mean for you?

If you get stung by these new drink and drug driving laws, you have the right to appeal against the fine and licence suspension by filing with the Local Court. Your driver’s licence will still be suspended until the day you are before the Court (which will often be at least 2 weeks from the filing of the appeal).

If you decide to appeal, you need to persuade the court to grant a Section 10, which gives the Court the power to deal with guilty persons by dismissing the charges entirely, or sometimes subject to a good behaviour bond. This means there is no criminal conviction, no fine and no licence disqualification. While this is the most desirable outcome, it’s likely that, due to the Parliamentary intent behind these amendments being of ‘Zero Tolerance’, a Section 10 will be more difficult to argue than ever before. The maximum penalty can also be increased if you try and fail, for example if your case is not prepared strategically by a lawyer. It will therefore pay more than ever to engage good legal representations.