Can I Get a Section 10 for Drink Driving?

If you have been charged with a drink driving offence, the consequences you face can be serious.

You can be fined, and can even face a jail term depending on the severity of the offence.

You will also face a minimum period of disqualification from driving that must be imposed if you are convicted.

A conviction will also stay on your criminal record and can affect you well into the future.

However, it is open to the court not to impose any penalty, and to unconditionally dismiss the charge without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

The court can also conditionally discharge your matter without conviction, but with a good behaviour bond.

Court powers under section 10

If a person has been found guilty of a drink driving offence, Section 10 of the Act allows the court to:

  • Dismiss the charge unconditionally without conviction.
  • Discharge that person on condition that they enter into a good behaviour bond. The court will consider a good behaviour bond if it finds that only minimal punishment is necessary.
  • Discharge the person on condition that they enter into an agreement to participate in an intervention program. The court will only consider an intervention program if that program may reduce the likelihood of further offending by promoting rehabilitation.

What is involved in getting a section 10 for drink driving?

In deciding whether to unconditionally dismiss a charge, the court considers the following factors:

  • Your character, antecedents, age, health and mental condition. If you have never committed an offence before and this is your first occasion, tell the court. If you have a job, work for charities, support a family or wider family members, it is all evidence of your good character. If you suffer from a health condition that requires you to drive to hospital or a doctor regularly, this too can be a significant factor suggesting that if you were disqualified from driving such penalty would be a more severe punishment in your instance.
  • The trivial nature of the offence. If you were charged with drink driving as a result of a random breath test, this is perhaps the most trivial form of the offence as no one was hurt. However, you may have a harder task of getting a section 10 if your actions caused an accident which injured someone.
  • The extenuating circumstances in which the offence was committed. If you have been going through a stressful event, the court ought to be told. It may be relevant to explaining your behaviour at the time, and reinforce that you are unlikely to reoffend.

The impact of disqualification from driving on your business is also a relevant consideration for the court.

If driving is crucial to the operation of your business, then the court can consider that disqualifying you from driving is a more severe penalty than it might be for a person who doesn’t drive to work, as it affects your business and your income.

If you travel regularly for work or personal reasons to the US, a conviction can also have a greater penalty than appropriate, as it may affect your ability to enter that country.

What else does the court consider?

You can ultimately try to submit anything you may think is relevant to showing the court that you are a good person, that this event was out of character, and that you are unlikely to reoffend in this way.

An apology letter to court taking responsibility for your actions and acknowledging the loss or damage you may have caused can also help to secure a dismissal.

What is the likelihood of getting a section 10?

One of the purposes of a penalty is to deter you from reoffending, and to deter others from behaving similarly.

The penalty is designed to denounce your behaviour and hold you accountable for the offence.

But the penalty must also be proportionate to the offence.

If you can show the offence did not cause great damage to anyone, and that being charged and put through the court process itself has deterred you from further offending, and that perhaps a penalty of conviction would be disproportionate to the seriousness of the offence, you may have a strong case for your charge being unconditionally dismissed without conviction under section 10.

It’s a good idea to speak to a criminal court lawyer if you are facing charges, and want to explore the option of a section 10 for drink driving.

A lawyer has the expertise to know what to present to a judge and how best to present it in court to achieve a section 10.

previous post: Writing an Apology Letter to Court

next post: How Does A Section 32 Mental Health Order Work?

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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