According to these five categories, it is an offence to do any of the following where there is a prescribed concentration of alcohol in a person's blood:



Drive a motor vehicle.

Be seated behind the wheel and attempt to put the vehicle in motion.

Be the holder of a driver's license and sit beside a learner's license holder who is driving the vehicle.

If police direct you to provide a breath sample when you are driving a motor vehicle, you must stop and comply with the police officer's directions. It is an offence if you refuse a direction from a police officer to provide a breath sample.

Once the police obtain the breath sample and the results indicate a level of alcohol over the prescribed limit, the police may arrest you and to take you to a police station to carry out a “breath analysis”. The breath analysis reading is what provides the basis for being charged for an offence under the relevant PCA category. It is an offence to refuse to submit to this breath analysis.

After the breath analysis, you will ordinarily be released from the police station on unconditional bail. The police, however, may request that you sign a “bail undertaking,” with certain conditions prior to your release. You will also be notified of the day when your matter will be heard before the local court and you must attend court on that day.

In determining your penalty or sentence, the court will consider whether you have previously committed any similar or other offences including negligent or dangerous driving and infringements such as speeding offences. Section 10 of the Act allows the court to find a person guilty of an offence without recording a conviction. This may apply for first time offenders and people who have had sound driving records for a long period of time. An order pursuant to section 10 means that the mandatory licence disqualification period set by the Act will not apply so that you may retain your license. The court also cannot order a monetary penalty when a charge has been dismissed pursuant to section 10.

Recent developments

The Attorney General of NSW recently applied for a guideline judgment concerning high range PCA offences under section 9(4) of the Act. The fundamental principle behind the guideline judgment is that you need to appreciate that if you consume alcohol outside of home, you run the risk of reaching a level of intoxication at which it is an offence to drive. The more alcohol you consume, the more serious your offence.

In sentencing, the court frequently considers the absence of aggravating factors in mitigation. However, the guideline judgment states that the absence of aggravating factors is not a mitigating matter with respect to PCA sentencing. The court also gives less weight to prior good character when sentencing for PCA offences than for other types of offences. Section 10 of the Act will particularly be interpreted more narrowly for high range offences. The court states in the guideline judgment that Section 10 will only be used in very rare cases, which means the court will order mandatory license disqualifications for periods of between 1 and 3 years more frequently.

The guideline judgment also highlights that the Court cannot give too much weight on subjective features in determining a sentence for a PCA offence. This is because for high range PCA offences, the penalty needs to reflect the objective seriousness of the offence, have adequate punitive value, deter the offender, protect the community, make the offender accountable, denounce the conduct and recognise the harm done to a victim, if any.

While this guideline judgment focuses on high range offences, it is also relevant to other categories of PCA offences. This means that legal practitioners now have an effective outline of the relevant factors the court will take into account when dealing with PCA offenders.