David H Cohen and Co Solicitors - family lawyer - criminal lawyer - traffic lawyer

SECTION 10 and Keeping your licence

In some circumstances, the Court however is able to exercise a discretion not to impose any penalty but dismiss the charge under Section 10 of the Crime (Sentencing Procedure Act) 1999 and in doing so, there is no criminal conviction recorded and no disqualification or fine imposed.

We can advise you whether you about your matter and whether there is a chance of a Section 10. If you refer you to the table set out hereunder which provides different categories of drink driving offences and penalties you can see that there are a number of issues taken into account including whether it is a first offence.

Further there are a number of defences including the fact that you were not driving a motor vehicle, the breath analysis was taken at your home or outside the 2 hour time limit from when you were driving.

There is also an “Interlock Program” which allows you to drive even though a disqualification has been imposed. This is discussed after the table of charges. We can discuss this with you and see where your case fits.

First major offence within 5 years

Offence Maximum Fine Maximum Jail Automatic disqualification Minimum disqualification

Novice range PCA

0.01 – 0.019 $1,100 Nil 6 months 3 months

Special range PCA

0.02 – 0.049 $1,100 Nil 6 months 3 months

Low range PCA

0.05 - 0.079 $1,100 Nil 6 months 3 months

Mid range PCA

0.08 - 0.149 $2,200 9 months 12 months 6 months

High range PCA

over 0.150 $3,300 18 months 3 years 12 months

Driving under the influence (DUI) $2,200 9 months 12 months 6 months

Refuse breath analysis $3,300 18 months 3 years 12 months

Willfully alter blood concentration $3,300 18 months 3 years 12 months

Refuse breath test $1,100 Nil 6 months Nil

Second or subsequent major offence within 5 years

Offence Maximum Fine Maximum Jail Automatic disqualification Minimum disqualification

Novice range PCA

0.01 – 0.019 $2,200 Nil 12 months 6 months

Special range PCA

0.02 – 0.049 $2,200 Nil 12 months 6 months

Low range PCA

0.05 - 0.079 $2,200 Nil 12 months 6 months

Mid range PCA

0.08 - 0.149 $3,300 12 months 3 years 12 months

High range PCA

over 0.150 $5,500 2 years 5 years 2 years

Driving under the influence (DUI) $3,300 12 months 3 years 12 months

Refuse breath analysis $5,500 2 years 5 years 2 years

Willfully alter blood concentration $5,500 2 years 5 years 2 years

Refuse breath test $1,100 Nil

2. THE “INTERLOCK” PROGRAM

If a person has been convicted of a drink driving charge and received a disqualification of a driver’s licence, the Court may allow the person to resume driving for the period of disqualification by allowing that person to be involved in the Roads and Traffic Authority “Interlock Program” according to the Road Transport Legislation Amendment (Interlock Devices) Act 2002.

The Application to enter into the Interlock Program is made to the sentencing court which will then make its determination about whether a person is eligible to enter that program.

The Court then specifies the full term of the disqualification period for the Defence and in doing so specifies the following:

1. Reduce period of disqualification being the “disqualification compliance period”;

2. Interlock participation period that prescribes the driver holds the interlock driver licence.

Alcohol Interlock Device

An alcohol interlock device is an electronic breath testing device connected to the ignition of a motor vehicle. Accordingly, the vehicle is not able to start unless the driver passes a breath test which is administered when the driver attempts to start the ignition.

The legislation requires a disqualification period and a minimum interlock participation period.

3. DRIVING UNDER THE INFLUENCE OF DRUGS

In New South Wales it is an offence to drive a motor vehicle while under the influence of any drug (DUI). Six major drug driving offences are legislated in the Act:

1. Having the presence of certain types of illegal substances in oral fluid, blood or urine

2. Driving under the influence of drugs

3. Refusing to submit to a drug test.

4. Altering the amount of drugs before an oral fluid test

5. Failing to supply blood or urine sample following a fatal accident.

6. Failing on demand to provide sample of blood/urine, or alter result of drug in blood before test.

Possible outcomes from DUI charges include a fine, good behaviour bond, imprisonment, disqualification of licence or a Section 10 dismissal.

Each case is individual so talk to us so we can help you best deal with your matter.

The table below outlines the penalties that can be imposed for drug driving offences.

First major offence within 5 years

Offence Maximum Fine Maximum Jail Automatic Disqualification Minimum Disqualification

Prescribed illicit drug in oral fluid/blood/urine $1,100 Nil 6 months 3 months

Cocaine or Morphine in blood/urine $1,100 Nil 6 months 3 months

DUI drug $2,200 9 months 12 months 6 months

Refuse undergo oral fluid test $3,300 Nil 3 years 6 months

Refuse to supply blood sample $3,300 Nil 3 years 6 months

Alter amount of drug before oral fluid test $3,300 Nil 3 years 6 months

Driver involved in fatal accident fail to supply blood/urine sample $3,300 18 months 3 years 6 months

Fail on demand to provide sample of blood/urine $3,300 18 months 3 years 6 months

Second or subsequent major offence within 5 years

Offence Maximum Fine Maximum Jail Automatic disqualification Minimum disqualification

Prescribed illicit drug in oral fluid/blood/urine $2,200 Nil 12 months 6 months

Cocaine or Morphine in blood/urine $2,200 Nil 12 months 6 months

DUI drug $3,300 12 months 3 years 12 months

Refuse undergo oral fluid test $5,500 18 months 5 years 12 months

Refuse to supply blood sample $5,500 18 months 5 years 12 months

Alter amount of drug before oral fluid test $5,500 Nil 5 years 12 months

Driver involved in fatal accident fail to supply blood/urine sample $5,500 2 years 5 years 12 months

Fail on demand to provide sample of blood/urine $5,500 2 years 5 years 12 months

4. LICENCE, SUSPENSION AND SPECIFIC TRAFFIC OFFENCES FOR SPEEDING DRIVING

While a Court does not have the power to make an order in respect of demerit points, it can hear appeals against licence suspension for excessive speeding. The appeal can be successful, the suspension can be upheld or the period of the suspension can be reduced.

However where the driver is on a good behaviour bond or in the interlock program the decisions of the RTA cannot be appealed.

The Court will take into account your personal situation including your need for a licence for work or family reasons, your traffic record, your character references and the circumstances of the offence(s).

IMPORTANT

You only have 28 days from receiving the letter from the RTA notifying you of your suspension to lodge your appeal. If you do not lodge your appeal then you must serve the suspension.

We can assist you in completing the documents for your appeal and in appearing in Court.

The general guidelines for speeding offences are contained in the following table:

Speeding Penalties

The following table displays fixed penalty notice fines for speeding penalties and speeding fines as at July 2009.

Speed over speed limit Demerit Points Light Vehicles Suspension period imposed by the RTA

Less than10kph 1 $79

Between 11 & 20kph 3 $197

Between 21 & 30kph 4 $338

Between 31 & 45kph 5 $647 3 months

Over 45kph 6 $1744 6 months

Court Penalties

Listed below are the speeding penalties and speeding fines if you are convicted by a court.

Speed over speed limit Max fine for Light Vehicles Disqualification (minimum)

Less than 30kph $2200 -

Between 31 & 45kph $2200 3 Months

More than 45kph $2200 6 Months

5. DANGEROUS DRIVING

Dangerous driving includes charges of dangerous or negligent driving causing grievous bodily harm, death or drive in a manner dangerous to the public or drive at a speed dangerous to the public.

Dangerous Driving Occasioning Death

This is a very serious offence attracting maximum penalty of 10 years imprisonment. However, if the offence is aggravated the maximum penalty is 14 years imprisonment.

Section 52 (A) (1) of the Crimes Act provides that a person is guilty of offence of dangerous driving occasioning death. If the vehicle is driven by that person is involved in a impact of occasioning death of another person and driver at the time of the impact, driving vehicle:

i. under the influence of intoxicating liquid or drug; or

ii. at a speed dangerous to another person(s); or

iii. in a manner dangerous to another person(s).

Dangerous Driving Grievous Bodily Harm

The maximum penalty for this offence of dangerous driving causing grievous bodily harm is 7 years imprisonment.

However, if the offence is aggravated, the maximum penalty is 11 years imprisonment.

It should be noted that this is Table 1 Offence which the DPP or the Defendant can make an election to have the matter dealt with in the District Court.

If no election is made, it would be dealt with Summarily in the Local Court.

Section 52 (A) (iii) of the Crimes Act provides “a person is guilty in offence of dangerous driving causing grievous bodily harm if the vehicle is driven by the person is involved in the impact of causing grievous bodily harm to another person and the driver was at the time of the impact, driving the vehicle:

i. under the influence of intoxicating liquid or drug; or

ii. at a speed dangerous to another person(s); or

iii. in a manner dangerous to another person(s).”

Driving In a Manner of Dangerous

Section 42 (2) of Road Transport (Safety and Traffic Management) Act 1999 provides the person who drives the motor vehicle on a public road considered by the Court a dangerous to the public is guilty. While the Court has discretion with regard to penalties, the automatic disqualification period for this offence is as follows:

First major traffic offence – drive in a manner of dangerous to the public:

i. Maximum fine is $2,200;

ii. 9 months imprisonment;

iii. Unlimited disqualification period;

iv. Minimum disqualification period is 12 months;

v. An automatically disqualification period is 3 years.

Second or Subsequent Major Traffic Offence within 5 years – drive in a manner of dangerous to the public

i. Maximum fine is $3,300;

ii. Unlimited disqualification period;

ii. Minimum disqualification period is 2 years;

iv. An automatically disqualification period is 5 years.

Negligent Driving Occasioning Death

This offence attracts maximum penalty of $3,300 or imprisonment of 18 months or both for first offence;

Or fine of $5,500 imprisonment for 2 years or both for second or subsequent offence.

Negligent Driving Causing Bodily Harm

This offence attracts maximum penalty of $2,200 or imprisonment of 9 months or both for first offence;

For second or subsequent offence, maximum penalty is $3,300 or imprisonment of 12 months or both.

Driving In a Speed of Dangerous to Public

This offence attracts maximum penalty of 20 penalty units or 9 months imprisonment for first offence;

Or 12 months imprisonment for second or subsequent offence.

6. DRIVING WHILE CANCELLED

The offence of driving whilst cancelled applies to a person who drives a motor vehicle on a public road after his or her licence has been cancelled by the RTA.

A Section 10 can apply in certain circumstances according to the Crimes (Sentencing Procedure) Act so that you may not have a conviction imposed.

If the Court proceeds with a conviction then the following penalties apply.

Offence Maximum Fine Maximum Disqualification Period Mandatory Disqualification Period

First Offence $3,300 Unlimited 12 months

Second Offence $5,500 Unlimited 2 years

7. DEMERIT POINTS

You can lose your licence when you accrue demerit points even thought they are minor offences.

However, in NSW you can appeal the suspension of your licence under specific circumstances by making a Section 10 appeal.

Please contact us if you have received a notice of a traffic offence from the RTA so that we can advise you about your chances of getting a Section 10 and retaining your licence.

The following may be of assistance in giving you an idea about your notice. Please call us if you need help in preparing your appearance at Court especially if you have penalties relating to drink driving or speeding and/or dangerous driving offences.

Accumulation of points resulting in loss of licence

A driver on a full license will be suspended for at least three months if they accrue the following number of demerit points in a three year period:-

Licence Points

Open licence 13 demerit points

Professional drivers 14 demerit points

P1 licence 4 demerit points

P2 licence 7 demerit points

Learner 4 demerit points

Learner, P1 and P2 drivers will also face higher demerit points penalties than drivers on an open licence for some offences.

How to avoid suspension of licence from Demerit Points Accrual.

The Court can give drivers the option of a suspension of licence or a good behaviour period. The good behaviour period will last 12 months. If a driver is issued with a “fine” of two or more demerit points during that 12 month period his or her licence will be suspended for at least 6 months.

8. DISQUALIFICATION

Several offences relate to driving without a valid licence whether you are disqualified, suspended or have not been issued a licence by the RTA of NSW.

The penalties for these offences can be affected by the habitual offender legislation (see below).

The following table shows the minimums and maximum sentences available to the Courts for charges relating to offences for driving while never having been granted an Australian licence as legislated in (Section 25(2) of the Road Transport (Driver Licensing) Act 1998) , specifically for the last five years.

Offence Minimum Disqualification Maximum Fine Maximum Imprisonment Habitual Offenders List

First Offence in last 5 years No minimum $2,200 No No

Subsequent offences in last 5 years No minimum $2,200 No No

If you have been charged with diving while unlicensed, having held a licence in Australia in the past 5 years (Section 25(1) of the Road Transport (Driver Licensing) Act 1998), this only applies when the driver has failed to renew his or her licence. If the driver has been disqualified or suspended from driving or has a cancelled licence then different sections of the Act will apply as demonstrated in the following section.

Don’t hesitate to call us to clarify any points.

Offence Minimum Disqualification Maximum Fine Maximum Imprisonment Habitual Offenders List

First Offence in last 5 years No minimum $2,200 No No

Subsequent offences in last 5 years 3 years $3,300 18 months Yes

Driving while license disqualified / suspended / cancelled

The Court would have disqualified a driver from holding a licence whereas the RTA may have suspended a driver’s licence in respect of an accrual of demerit points.

If however you have not received the notification of suspension, disqualification or cancellation please contact us as not knowing about the suspension or cancellation of your licence can form part of your defence in a Section 10 Appeal.

Please do not hesitate to contact us if you are unsure of the nature of your charge.

Driving while licence is disqualified, suspended or cancelled (Section 25A (1), (2) and (3) of the Road Transport (Driver Licensing) Act 1998)

Minimum Disqualification Maximum Fine Maximum Imprisonment Habitual offenders list

First Offence in last 5 years 12 months $3,300 18 months Yes

Subsequent offences in last 5 years 2 years $5,500 2 years Yes

Driving unlicensed - non-payment of outstanding fines

Driving while licence is suspended under the Fines Act for non-payment of outstanding fines (Section 25A(3A) of the Road Transport (Driver Licensing) Act 1998)

In relation to any outstanding fines, the State Debt Recovery Office has the power to suspend a driver’s licence. However you should by law be notified of such a suspension and if you believe you have not received appropriate notice this may form part of your defence against the suspension.

Further the court must take into account the effect such a suspension would have on your life and employment and your ability to pay such fines.

Offence Minimum Disqualification Maximum Fine Maximum Imprisonment Habitual offenders list

First Offence in last 5 years 3 months $3,300 18 months No

Subsequent offences in last 5 years 2 years $5,500 2 years No

9. HABITUAL TRAFFIC OFFENDER DELCARATIONS

In NSW you can be declared a habitual traffic offender if you have in the last 5 years been convicted of at least 2 or other offences committed on 2 other occasions.

The RTA will disqualify you for a further 5 years on top of any period the Court may impose.

HOWEVER in a recent case, we were able to show the cour and achieved a Section 10 for our client so you will not automatically be declared a habitual offender.

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