Offence provision

Driving under the influence of alcohol or drugs (DUI) is an offence under section 112 of the Road Transport Act 2013 (NSW).

 

What is driving under the influence?

“Driving under the influence” occurs when a person uses or attempts to use a motor vehicle while under the influence of alcohol or drugs.

The police do not need evidence of the person’s blood alcohol level or the presence of an illegal drug in their system. They can charge this offence if they have reason to believe that the person’s ability to drive was impaired by either:

  • Alcohol,
  • Illegal drugs, or
  • Other substances likely to impair normal mental or physical faculties (such as prescription medication).

Driving under the influence is not a common charge because the police must establish that someone was noticeably affected by the substance. The police must give evidence that the person’s driving, speech, behaviour, manner of walking, smell, or any other aspect of their appearance or behaviour, suggested that they were under the influence of a substance.

 

Licence suspension

If you are charged with driving under the influence, the police can suspend and confiscate your licence within 48 hours of the charge or penalty notice being issued. The suspension will remain in place until the offence is heard by a court. If your licence is disqualified by the court, the magistrate will consider the licence suspension in deciding the disqualification period.

Both a licence suspension and disqualification prohibit you from driving for the specified period. While a licence suspension can be imposed by the RMS or NSW Police without a formal conviction for the offence, a licence disqualification is imposed by a court as part of the penalty for a formal conviction.

 

DUI penalties in NSW

If you are charged with driving under the influence in NSW, the potential penalties include:

PenaltyFirst offenceSecond offence
Maximum fine$3,300$5,500
Maximum term of imprisonment 18 months2 years
Minimum disqualification12 months2 years
Maximum disqualificationUnlimitedUnlimited
Automatic disqualification 3 years5 years
Mandatory interlock orderYes (alcohol)Yes (alcohol)

 

Consequences of a conviction

If you are convicted of driving under the influence, you will have this offence noted on your criminal record and have your licence disqualified.

The automatic disqualification period will apply unless the court makes a specific order. The court can disqualify your licence for any length of time within the minimum and maximum periods listed above.

If you were convicted of driving under the influence of alcohol, you will also be required to participate in the alcohol interlock program, and an interlock device will be fitted to your car. This is an electronic breath testing device which stops the car from starting unless you provide a zero-alcohol breath sample.

These consequences can be avoided if the court applies section 10 of the Crimes (Sentencing Procedure) Act 1999.

 

Traffic Offender Intervention Program

The court may give a more lenient sentence if you participate in the Traffic Offender Intervention Program. This program covers traffic laws and rules, and the potential consequences of breaching the laws. When the course is finished, a certificate will be sent to the court and it can be considered in determining the sentence.

 

Frequently Asked Questions

Where will the matter be heard?

Driving under the influence offences are heard at a Local Court before a magistrate.

How serious is the charge?

Driving under the influence is considered a serious traffic offence because of the potential to hurt other road users or members of the public. This is reflected in the severity of the potential penalties, including prison.

A key factor taken into account by the courts is the extent that you appeared to be affected by the drug or alcohol.

How do I defend a charge of driving under the influence?

A pharmacological report can form a valuable part of your defence. This report will provide a scientific assessment of whether the amount of alcohol or other substance in your system would have affected your driving ability.

For example, you may be charged with DUI if the vehicle smells of marijuana and you appeared to be affected. However, a pharmacological report may reveal that the quantity of marijuana in your system at the time you were driving was so minimal that it could not reasonably have affected your driving ability. This will provide you with a defence to the charge of DUI.

When will DUI be charged rather than drug driving or drink driving?

The police may charge you with driving under the influence in circumstances where:

  • More than two hours have passed, and a breath analysis is prohibited by law.
  • You were injured in a car accident and can’t be breathalysed.
  • There is no evidence of alcohol use, but you appear to be under the influence of a drug, for example due to slurred speech or blurry eyes.

How can we help?

We have over 55 years of experience in successfully defending drink driving and traffic offences.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.

Driving Under the Influence (DUI) Case Studies