What is High Range PCA?
The offence of High-Range PCA is committed by a driver who drives a motor vehicle with a blood alcohol concentration above 0.150.
High-Range PCA offences are subject to a guideline judgment of the NSW Court of Criminal Appeal, which states an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 where no conviction is recorded will rarely be appropriate. In practice, this means your case will need to be exceptional or unusual.
The guideline judgement gives the following examples of when High Range PCA matters may be dealt with by way of section 10:
- Where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle to take a person to hospital.
- Where the offending is technical, there being no real risk of damage or injury arising from the driving e.g. driving the car from the on-street parking immediately in front of a house then and into the home’s garage.
The guideline judgement states an ordinary case of the offence of high range PCA is one where:
- The offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
- The offender was detected by a random breath test;
- The offender has prior good character;
- The offender has nil, or a minor, traffic record;
- The offender’s licence was suspended on detection;
- The offender pleaded guilty;
- There is little or no risk of re-offending;
- The offender would be significantly inconvenienced by loss of licence.
In an ordinary case of an offence of high range PCA:
- An order under s 10 of the Sentencing Act will rarely be appropriate;
- A conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
- The automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification. A good reason under may include:
i. The nature of the offender’s employment;
ii. The absence of any viable alternative transport;
iii. Sickness or infirmity of the offender or another person.
In an ordinary case of a second or subsequent high range PCA offence:
- An order under section 9 of the Sentencing Act will rarely be appropriate;
- An order under s 10 of the Sentencing Act would very rarely be appropriate;
- Where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
The moral culpability of a high range PCA offender is increased by:
- The number of prior PCA offences;
- The degree of intoxication above 0.15;
- Erratic or aggressive driving;
- A collision between the vehicle and any other object;
- Competitive driving or showing off;
- The length of the journey at which others are exposed to risk;
- The number of persons actually put at risk by the driving.
In a case where the moral culpability of a high range PCA offender is increased:
- An order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
- Where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
- A sentence of any less severity than imprisonment of some kind would generally be inappropriate;
- Where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
Penalty for a first offence
The maximum penalty for High-Range PCA, if it is your first major traffic offence within 5 years, is a fine of $3,300.00 and/or 18 months imprisonment. The automatic disqualification is 3 years and a minimum disqualification period of 12 months unless the matter is dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act.
Penalty where the offence is a second or subsequent major offence within 5 years
The maximum penalty for High-Range PCA, if it is your second or subsequent major offence within 5 years, is a fine of $5,500.00 and/or 2 years imprisonment. The automatic disqualification period is 5 years and a minimum disqualification period of 2 years unless the matter is dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act.
Do I need references for a drink driving charge?
In deciding whether to deal with your matter by way of section 10, the court will consider, amongst other factors:
- Your character (employment, family, charity)
- Your criminal record (if any)
- Your traffic record
- The circumstances of you consuming alcohol
- The circumstances of your driving
- The deliberateness of your offending
- Your need for a licence in particular for employment, family or medical reasons, or where you live in a remote area
- Whether you have completed the Traffic Offenders Program
In order to obtain a section 10, drink driving cases should be tailored to address the above factors and matters unique to your own case. In order to give you the best chance of keeping your licence, it is recommended that you work closely with one of our solicitors to prepare your case. Your criminal lawyer will request you obtain references. If the offence is one that carries a loss of licence, the referees should state your needs for a licence. Below are some reasons a court may invoke for not recording, or reducing, a disqualification period.
Loss of employment is a classic reason for a court not disqualifying a person. If a person will lose their job if they lose their licence then the referee should put forward that assertion with absolute certainty. The court will see straight through waffle such as “his position may be reviewed”. For example:
A licence disqualification will prevent Joe Blog’s from fulfilling his duties and hence, if this occurs, he will be asked to temporarily leave his post until the disqualification lapses or if the disqualification is for more than 3 months, his employment will be terminated as per clause 8.2 of his contract enclosed herein. There is no discretion in this situation. He is a sales representative and our clients cannot be serviced by public transport.
Lack of public transport
No viable alternative transport is a matter the court may consider when deciding whether to impose a disqualification. This mainly applies to people in the country, but may apply if you are a shift worker, reside or work in an area not serviced by public transport, or to females who work late. For example:
Joe Blog’s works at Marayong Chickens in an industrial area where there is no public transport. He wakes up at 3am, leaves at 4am, and starts his shift at 5am. We have explored all options and, as he is the only licenced driver in our family, he has no way to get to work if he loses his licence. We have a mortgage and two school age children. Without a licence, he cannot get to work. Worse still, we’d have no way to get to the Richmond shops, a 20 minute drive from where we live on acreage.
Family reasons such as care for a child or elderly parents, sickness of yourself or another who relies upon your ability to drive, are matters a court may consider. For example:
Joe Blogs resigned from his job to look after our sick son as he is the only licenced driver in our family who could take him to his daily medical appointments. When he stopped working, I started a lower paying job. Even though it meant less money, it was the only way we could ensure our son received the treatment he needed. Joe is with our son 24 hours a day in case his conditions worsens and he needs to be taken to hospital. We simply cannot look after our son without a car.
A detailed guide to reference writing can be viewed here.
The Interlock Program
In NSW, courts are required to make Mandatory Interlock Orders upon conviction of certain drink drive and traffic offences. If you commit one of the offences and are convicted, you will be disqualified from driving and ordered to install an interlock device in your car, motorbike or truck.
Below is a table with the relevant disqualification and interlock periods for different offences.
|Offence||Minimum time off the road||Maximum time off the road||Minimum time in interlock program|
|Novice Range, Special Range or Low Range (second offence)||1 months||3 months||12 months|
|Mid Range (second offence)||6 months||9 months||12 months|
|High Range||6 months||9 months||24 months|
|High Range (second offence)||9 months||12 months||48 months|
|DUI (second offence)||6 months||9 months||2 months|
|Refuse/fail to provide sample||6 months||9 months||24 months|
|Refuse/fail to provide sample (second offence)||9 months||12 months||48 months|
Defences to drink driving charges
- Disputing the Blood Alcohol reading – The offence of drink driving relates to your blood alcohol content when you drive the car, not when you are breath tested. It takes about 30 minutes for the police to arrest you and take you to the police station for a second, more accurate test. In this time it is normal for your blood alcohol level to go up or down. It follows that the reading recorded by police may not be a good representation of your blood alcohol content at the time of driving. By referring your case to a pharmacologist, we may be able to obtain evidence that although you were over the limit at the time of your breath analysis, you were not over the limit at the time you drove or, if you were, you were at a lower range than charged e.g. low range rather than mid-range.
- Honest and reasonable mistake of fact – This defence is available but Magistrates are extremely hesitant to uphold it for public policy reasons and the reasonableness element of the offence is applied stringently. This defence states that you are not guilty of a drink driving offence if, at the time of driving, you held an honest belief that you were under the limit and it was reasonable for you to hold that belief in all of the circumstances. Examples of where this defence may be run are cases where people drive the ‘morning after’ thinking the alcohol is out of their system or where they have followed the prior RTA directive in relation to alcoholic consumption and driving (two standard drinks in the first hour and one every hour after).
- Breath analysis not taken within two hours of driving – The police are required to prove that you had the blood alcohol concentration alleged at the time you were driving. The law requires that the breath analysis occurred within 2 hours of driving. Where police attend at the scene of an accident often they will arrive more than 2 hours since the time of the accident.
- Home safe rule – The law prohibits the police from demanding a breath test of a driver at their home. If police breath test you at home in breach of this rule, the evidence of your reading may be inadmissible.
Why choose AC Law Group?
Our solicitors are experts at obtaining outstanding outcomes and section 10 dismissals for High Range PCA. For these offences, we offer fixed fees with no hidden extras. To read more about AC Law Group, click here, and call us or make a website inquiry today.
Mr Adut represented a co-Accused in a Severity Appeal to the District Court following the person being sentenced to a term of 9 months imprisonment for High Range PCA when he was represented by another solicitor at Mount Druitt Local Court. Mr Adut obtained a psychological report and ran a section 32 application to divert the case from the criminal system. The judge agreed with the submissions and the client was ordered to attend a psychologist for treatment for the underlying issues that caused him to consume alcohol rather than going to gaol.
Mr Correy represented a young woman charged with High Range PCA following an accident. Mr Correy argued that the young woman had only driven to escape a domestic assault, had returned to park the car almost immediately following her realisation as to her intoxication and that the subsequent accident occurred in the context of trying to avoid the impending danger posed by her assailant. The Magistrate agreed the circumstances were exceptional and dealt with the matter by way of section 10, meaning no conviction was recorded and the young woman kept her licence.