The random breath test (RBT)

At approximately 9 p.m. on a Friday evening, our client was directed to stop at a stationary random breath testing (RBT) site. However, he failed to see or react to the police officer directing him to stop, and almost collided with him.

Our client was asked to undertake an RBT, which returned a positive result. He was taken to the police station for breath analysis, which revealed a blood alcohol concentration of 0.119 grams. Our client was charged with mid range PCA, and his driver’s licence was automatically suspended.


Complicating matters

Our client’s situation was complicated by the fact that various aggravating factors had to be balanced against unusual and tragic personal circumstances.

In addition to the high blood alcohol reading and the near miss involving the police officer, our client had two children in his car.

However, an important mitigating factor was our client’s excellent driving history.

Despite being 69 years old, our client had no criminal record and, in over 50 years, only two minor speeding infringements had been recorded against him. Our client also faced unique circumstances which we considered to be relevant to a court’s decision in imposing a penalty on him.

These included:

  • The recent death of his wife after a lengthy battle with leukaemia. Our client’s offending occurred only a few days after the first anniversary of her death, and shortly before their 44th wedding anniversary.
  • Since the incident, our client had been obtaining treatment from his general practitioner for stress, anxiety and depression, as well as additional bereavement counselling.
  • Eight months prior to committing the offence, our client was diagnosed with prostate cancer. Although he underwent a successful surgery, there was a suggestion that our client’s cancer may have returned and an appointment with his specialist had been scheduled only three days after he was charged with the drink driving offence.
  • Due to the prostate surgery, our client experienced embarrassing and significant physical problems which were exacerbated by exertion and made it difficult for him to undertake chores or travel without being able to drive.
  • Our client had no family in NSW apart from his 89-year-old mother-in-law, whom he helped care for.


Potential penalties

In the circumstances, our client could have been imprisoned for up to nine months, as well as facing a maximum fine of $2,200. If convicted, he also faced an automatic 12-month disqualification, with not less than six months disqualified.


The court proceedings

On our advice, our client entered a guilty plea at his first appearance. The matter was then adjourned so that our client could participate in the Traffic Offender Intervention Program and have sufficient time to collate supporting evidence.

The matter eventually proceeded to sentencing, by which time our client had been without a driver’s licence for just over two months.

At the hearing, we tendered a letter of apology demonstrating our client’s remorse and contrition, and a workbook completed during his participation in the Traffic Offenders Intervention Program, which demonstrated that he understood the error of his ways and had gained a level of understanding as to the potential impact of his offending. We also provided a character reference and letters confirming our client’s ongoing medical difficulties and bereavement stress.


Arguing for a section 10

We submitted that in the circumstances the matter should be dealt with under section 10, which permits a court to grant leniency to a defendant.

In making such a determination, the court is required to consider several factors, including:

  • The person’s character, antecedents, age, health and mental condition.
  • The trivial nature of the offence.
  • The extenuating circumstances in which the offence was committed.
  • Any other matter that the court thinks proper to consider.

We argued that, despite the aggravating factors involved in our client’s offence, our client’s prior good character, lack of criminal record, good traffic record, poor health and need for a driver’s licence meant that he was a suitable candidate to be dealt with under section 10.

The magistrate agreed with our submissions and found that although it was generally important to issue a message of deterrence to the community, our client’s unique situation meant that a conviction was not necessary. Accordingly, our client was placed on a 12-month good behaviour bond, with no recorded conviction. His driver’s licence was also immediately returned to him.


A brilliant outcome

The outcome for our client was an excellent result, particularly considering his high blood alcohol reading and his child passengers.

Not only did our client find it much easier to return to his usual daily activities with the return of his driver’s licence, but he vowed never to drink and drive again. Our client has also been campaigning to have undertaking the Traffic Offenders Intervention Program part of the criteria for obtaining a NSW driver’s licence.


Nyman Gibson Miralis provides expert advice and representation in all areas of drink driving and traffic law. Contact us if you require assistance.