Case facts

Our client, aged 22, had a licence for five years with no infringement notices or other penalties. She had no criminal record. The client drove to a friend’s place, fully expecting to drive home later. However, she drank some wine and failed to count precisely how many drinks she had. Nevertheless, she felt fine to drive – which is often the case whether experienced or inexperienced with alcohol.

As she drove home, she noticed a random breath test station ahead and pulled in to the kerb. She was uncertain as to whether she might be over the limit. She failed the roadside breath test and was arrested by police and taken to the local police station for a breath analysis.

The analysis returned a blood alcohol concentration of 0.09 grams of alcohol in 210 litres of breath, placing her in the mid range prescribed concentration of alcohol. Her licence was suspended on the spot.


Potential penalties

Maximum penalties include nine months jail, a fine of up to $2,200 and an automatic disqualification period of 12 months, able to be reduced to not less than six months. Under the interlock program, it is possible to apply for an interlock licence for this type of offence.


Local court proceedings

The plea was conducted by a barrister who was a family friend. The police facts sheet did not disclose the immediate licence suspension and it was not raised in court by the prosecutor or the barrister. The Magistrate convicted her and imposed a disqualification period of eight months from the court date. Clearly, the Magistrate could not make orders for the suspension of licence to be taken into account as there was no information of such placed before the court. If the matter had been raised, the Magistrate would have made an order under Section 205(6) Road Transport (General) Act in effect backdating the disqualification. A fine and court costs were also ordered by the court.


District court appeal

The client contacted our accredited criminal law specialist, and a traffic offender intervention program lecturer, to act on her behalf. A severity appeal was lodged. The “tender bundle” from the Director of Public Prosecutions incorrectly indicated that the disqualification period was backdated to the date of the offence, and also noted that the stay of disqualification applied whilst awaiting appeal. This was incorrect, but came to light when the client produced her copy of the Notice of Suspension issued by police.

The Roads and Maritime Authority traffic record correctly showed that the disqualification dated from the local court sentencing proceedings at North Sydney Local Court. Where a person was suspended prior to the court determining penalty in the Local Court, they remain suspended. This enabled us to submit that the appellant had been off the road for close to five months at the date of appeal, thereby having suffered the equivalent of a disqualification period. If the Judge was to convict and impose the minimum period of disqualification (six months), then the net result would be that the client would be convicted and disqualified for a further month, having already sat out five months from driving.

Excellent character references and completion of the Traffic Offender Intervention Program as well has her prior good character helped the Judge in determining whether to exercise discretion pursuant to Section 10 Crimes (Sentencing Procedure) Act and not record a conviction, allowing the client to avoid a disqualification and fine. The appeal was upheld, the orders of the Local Court were set aside and the client left the courtroom without a conviction upon being placed on a section 10(1)(a) bond for a period of two years.


Why you need an experienced traffic lawyer

If the issue about the suspension notice had not been identified, and the errors about the stay of suspension pending appeal and date from which the disqualification ran continued to be overlooked, this appeal would have undoubtedly failed. The result would have been a criminal conviction for the appellant and loss of licence through disqualification which had already significantly impacted upon her.


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