Mid Range Drink Driving Law and Penalties in New South Wales

A 21-year-old off-duty Sutherland Constable was driving a BMW involved in a six-car crash in Princes Highway at Blakehurst. It was alleged that the Constable underwent a breath test which resulted positive and allegedly, a reading of 0.126. The Constable was subsequently charged with driving with a mid-range PCA.

The Constable’s licence has been suspended and he is due to appear in Sutherland Court on 1 October 2020.


Mid- Range Drink Driving offence in NSW

It is an offence in NSW to drive a motor vehicle while the person driving has a middle range concentration of alcohol. This is stated in subsection 110 (4) in the Road Transport Act  2013 (NSW) [hereafter, the Act]:

Offence–middle range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the middle range prescribed concentration of alcohol

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)–occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.


Key Elements of the Offence

The prosecution, to successfully prosecute this charge, must prove the following elements beyond reasonable doubt:

  1. Person

This element requires the prosecution to be a natural person or an individual.


  1. Drives a motor vehicle, OR

“Drive” is defined in section 4 of the Act, to include being in control of the steering or movement of the car, drawing or towing a trailer and riding a vehicle.


  1. Occupies the driving seat and attempts to put the vehicle in motion, OR

For a person does not need to actually turn the car on or drive to be committing this offence. It may be enough that a person gets into the driver’s seat and tries to put their keys in or attempts to turn the ignition on.


  1. Supervises a learner driver who is driving the vehicle; AND

This element requires that the person, who is capable of supervising a learner driver, is supervising a learner driver. Therefore, a person is likely to be committing this offence if they ask their child, on their learner’s licence to drive them home after a big drinking night. Another example would be where a driving instructor arrives to a lesson drunk and supervises a learner driver.


  1. Has present a middle range prescribed concentration of alcohol (Mid-range PCA)

“Middle range prescribed concentration of alcohol” is defined as 0.08 to less than 0.15 grams of alcohol in 210 litres of breath or 100 mls of blood.

It is common for general population to misjudge whether they are in the alcohol limit prior to driving. However, to give you an idea of how much alcohol is required to reach the mid-range limit, it is the equivalent of drinking about four to five standard drinks. A standard drink has about 14 grams of pure alcohol.  Note that standard drinks can affect people differently, as there are other factors which can increase the likelihood of reaching the alcohol limit.


Penalty for the offence

The penalty for this offence will depend on whether it is the person’s first or second offence.

If this is the first offence, then the maximum penalty is 20 penalty units and/or 9 months imprisonment. If this is the second or subsequent offence, the maximum penalty is 30 penalty units and/or 12 months imprisonment.

A person guilty of this offence may also be disqualified from driving for a minimum period of 6 months for their first offence and 12 months if it is their second offence. However, there is an automatic disqualification period for this offence, being 12 months for the first offence and 3 years for the second offence.

It is also open to the court to immediately suspend the person’s licence or subject the person to an alcohol interlock order. An alcohol interlock order is an order requiring a person to pay and install the alcohol interlock system into their car. Essentially, this system prevents a person from driving when if the breath testing device detects a presence of alcohol in the person’s breath.

It is also possible for the defendant to avoid a conviction and disqualification if the defendant can obtain the leniency of a section 10(1)(a) order in Crimes (Sentencing Procedure) Act 1999. Note that a person can only avail a section 10(1)(a) non-conviction order once every five years for the relevant offences, as per section 203 of the Act.


Pleading Not Guilty: Defences

Where the prosecution is unable to prove the above elements beyond reasonable doubt, the accused will be found not guilty of the offence.

However, it is also open to the accused to put forward a valid defence:

  • The breath analysis was taken within 2 hours of driving
  • The breath analysis was conducted in the person’s home
  • You were not the driver of the vehicle
  • Honest and reasonable mistake as to being under the alcohol limit

Pleading Guilty:

A person may choose to plead guilty to obtain a lesser sentence. It is recommended that a person should plead guilty as early as possible to receive a greater discount on their sentence.

Moreover, it is open to the person to obtain the following documents in order to lessen their sentence:

  • Character Reference/s
  • Letter of apology
  • Rehabilitation Courses

Furthermore, an experienced criminal lawyer, can assist in drafting strong submissions on your behalf to help achieve a more lenient outcome.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.

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