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Section 110 Road Transport Act 2013
Presence of Prescribed Concentration of Alcohol in Person’s Breath or Blood

Section 110 of the Road Transport Act 2013 (NSW) is the offence commonly known as drink-driving, which is referred to in the law as ‘Presence of Prescribed Concentration of Alcohol in Person’s Breath or Blood’, and is extracted below.

If you require the services of a traffic defence team that specialises in drink driving cases, call Sydney Criminal Lawyers today on (02) 9261 8881 to arrange a consultation.

Our team is vastly experienced in advising and representing clients in traffic law cases, and will fight to ensure you achieve the optimal result in the circumstances.

We offer fixed fees for all traffic cases, and a free first conference for those who are going to court.

The Legislation

Section 110 of the Road Transport Act 2013 is Presence of Prescribed Concentration of Alcohol in Person’s Breath or Blood and reads as follows:

Presence of prescribed concentration of alcohol in person’s breath or blood

(cf STM Act, ss 9, 10, 11 and 11A)

(1) Offence–novice range prescribed concentration of alcohol A novice driver must not, while there is present in the driver’s breath or blood the novice range prescribed concentration of alcohol:

(a) drive the motor vehicle, or

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

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(2) Offence–special range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the special range prescribed concentration of alcohol:

(a) if the person is a special category driver in respect of a motor vehicle–drive the motor vehicle, or

(b) if the person is a special category driver in respect of a motor vehicle–occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is a special category supervisor in respect of a motor vehicle and 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.

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(3) Offence–low range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the low 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.

Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence).

(4) 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.

Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).

(5) Offence–high range prescribed concentration of alcohol A person must not, while there is present in the person’s breath or blood the high 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.

The penalties

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

Note : Division 1 of Part 7.4 provides for the disqualification of persons from holding driver licences for certain offences (including offences against this section).

(6) Alternative verdicts for lesser offences If the court on a prosecution of a person for an offence against any subsection of this section is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section of a less serious nature, the court may acquit the person of the offence with which the person is charged and find the person guilty of an offence against the other subsection. The person is liable to be punished accordingly.

(7) For the purposes of subsection (6):

(a) an offence against subsection (1), (2), (3) or (4) is of a less serious nature than an offence against subsection (5), and

(b) an offence against subsection (1), (2) or (3) is of a less serious nature than an offence against subsection (4), and

(c) an offence against subsection (1) or (2) is of a less serious nature than an offence against subsection (3), and

(d) an offence against subsection (1) is of a less serious nature than an offence against subsection (2).

(8) Presence of higher concentration of alcohol not defence It is not a defence to a prosecution for an offence against a subsection of this section if the defendant proves that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, a greater concentration of alcohol was present in the defendant’s breath or blood than the prescribed concentration of alcohol referred to in the subsection.

(9) Defence for offence relating to novice range prescribed concentration of alcohol It is a defence to a prosecution for an offence against subsection (1) if the defendant proves to the court’s satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant’s breath or blood of the novice range prescribed concentration of alcohol was not caused (in whole or in part) by any of the following:

(a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance),

(b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.

Why Sydney Criminal Lawyers®?

Choosing the right legal team to defend your reputation and interests can be a difficult process.

However, it is always important to look at a firm’s experience and results when making this decision.

At Sydney Criminal Lawyers®, we have extensive experience defending and winning some of the most complex traffic matters – so you can rest assured that you are in safe hands.

Our traffic law specialists will take the time in every case to carefully scrutinise all the evidence in order to identify problems with the prosecution case at an early stage in the proceedings.

Where issues are found, our lawyers will write to the prosecution asking to have the charges dropped on this basis – often sparing our clients the considerable time and expense associated with defended hearings.

However, should your matter proceed to court, our senior lawyers will represent you and present a strong defence case to maximise your chances of being found ‘not guilty.’

Our senior lawyers are highly skilled advocates who have been recognised for their expert knowledge of the traffic law, as well as their ability to obtain excellent results in difficult cases.

We can assist you in avoiding the harsh penalties imposed by the law if you simply wish to plead guilty – in these cases, our experienced advocates can prepare and present compelling sentencing submissions which focus on any positive factors of your case.

For the best defence in your case, get the experts on your side today. Call us now on (02) 9261 8881 and book your FREE first conference with our traffic law specialists.


Recent Cases

Our client is a 42 year old criminal defence lawyer in Sydney.

He attended a function on Friday evening during which he consumed a beer and several glasses of wine during the course of the night.

He waited some time before getting into his vehicle and driving towards his home, before being pulled over for a random breath test and registering a reading of 0.114.

He was charged with driving with a middle range concentration of alcohol and contacted our office for representation on a guilty plea.

He wrote a letter of apology to the court and obtained character references from long time friends and an associate.

He also completed a traffic offender program.

Lengthy submissions were made in court regarding the potential effect of a criminal conviction and loss of licence, his prior food character, remorse, acceptance of responsibility, the steps taken to ensure there is no reoffending and the impact of a loss of licence, persuading the magistrate not to record a conviction against his name.

He was released on an 18 month conditional release order, which means there is no conviction, no fine and no loss of licence.

Our client is a 35-year old IT professional who had never previously been in trouble with the law.

He made a foolish decision to drive the short distance home after a work celebration, where he had been drinking alcohol.

Police followed him for about 20 seconds before he pulled into the driveway of his home. Police interpreted this as an attempt to evade detection and turned on their lights and sirens.

Police arrested and detained him on his property, then took him out to the front of his home to administer a breath test on a ‘road related area’.

Schedule 3 of the Road Transport Act prohibits police from subjecting a person to a breath test at on a property they own or occupy (this is known as the ‘home safely rule’), which gives rise to the inference that police were trying to circumvent the requirement by taking our client to the area in front of his property.

Our client blew a positive breath test and was conveyed to the police station, where he registered a high range reading for alcohol. He was then charged with high range drink driving.

Our client attended consultations with three criminal defence firms, who each advised him to plead guilty because he was in fact tested on a ‘road related area’ and his car was only partially parked on his own property. This is despite our client showing each of them CCTV footage from outside his home, which made it clear the ‘home safely rule’ had been breached.

Police produced statements to the effect that they ‘stopped’ our client on public land and that his car was not fully on his own property, which was inconsistent with the CCTV footage.

Our advice was that the breath test was clearly in contravention of the Road Transport Act, and was therefore illegal. The certificate in respect of the breath analysis was therefore inadmissible in court, and our client’s arrest and detention were also illegal.

Our client accepted our advice an elected to take the matter to a defended hearing.

At the hearing, both officers were extensively challenged about their statements and made significant concessions when confronted with the CCTV footage. It was made abundantly clear to the court during cross-examination that the officers had lied in their statements.

The court quickly found that the breath test was unlawful and dismissed the case against our client.

We then sought an order that police pay our client’s legal costs, which was granted.

We have advised our client in relation to a civil claim for false arrest and unlawful imprisonment.

In the meantime, our client remains conviction-free and is able to continue driving.

The Magistrate in Parramatta Local Court awarded our 32 year old client a 'section 10' for high range p.c.a. which means that he avoids a criminal conviction and gets his licence back.

Our client works as an Information Technology expert in a large Sydney-based company.

He lives with his wife and young daughter in Westmead.

The family attended an event in Parramatta where our client drank a number of alcoholic drinks throughout the course of the evening.

He stopped drinking between 10.30pm and 11pm, and only drank water after that.

He 'felt fine', although 'a little tired', and commenced driving home shortly after midnight.

He was pulled over for a roadside random breath test just before 12.20am.

He blew a positive reading, and was arrested and taken to the police station where he registered a reading of 0.170.

He was then charged with high range drink driving.

He saw a number of lawyers before seeing us.

He informed us that his job requires him to drive between various branches of his company at short notice to perform IT maintenance duties, and that his position may be reviewed if he has any criminal convictions.

We asked whether his employment contract might confirm this.

He produced the relevant parts of his contract which indeed confirmed both of those matters.

We advised him to undertake a Traffic Offender Program, to gather character references (including one from a work colleague) and to prepare a 'letter of apology' to the court describing his remorse and the impact that a conviction would have on his career and family.

We also referred him to see a counsellor.

We provided him and his 'referees' with detailed advice about how to prepare references.

We obtained a positive letter from the counsellor.

In court, it took a great deal of effort to finally convince the Magistrate to award our client a 'section 10', and to therefore allow him to keep his licence and avoid a conviction.

He was extremely satisfied with the result because he had previously been advised that it would be impossible to achieve a section 10 in his situation.

In Parramatta District Court, Sydney Criminal Lawyers® obtained a 'Section 10' ( no criminal record or licence disqualification) for a 38 year old Blacktown man who pleaded guilty to a 3rd drink driving charge was dealt with under ‘Section 10’ (i.e. without conviction, fine or disqualification).

The case was initially in Blacktown Local Court where the Presiding Magistrate had imposed a conviction, 12 months disqualification, an $800 fine and $76 court costs.

Sydney Criminal Lawyers® successfully appealed that decision and our client, who needs his licence for employment, can retain his job and continue to support his wife and two young children.

The Magistrate in Downing Centre Local Court allowed our 34 year old client from Mosman to avoid a conviction and a licence disqualification despite the fact that he was an ‘L plater’ and registered a blood alcohol reading of 0.07.

The charge arose when our client decided to drive home after having some drinks on a Friday night. He was stopped by police for a random breath test and blew a low range reading.

He had a learner licence at the time, but no ‘L’ plates were displayed.

Our lawyers assisted him with character references and a letter of apology to the court.

He also completed the Traffic Offender Program.

These materials were presented to the court on our client’s sentencing date, and lengthy submissions were made which ultimately persuaded the Magistrate to grant him a 12 month good behaviour bond under ‘section 10’, which means that he avoids a criminal record and licence disqualification.

This is despite this offence carrying an automatic disqualification period of 6 months.

Our client is a 46 year old Sales Executive living in Frenchs Forest, Sydney.

He was pulled over for a random breath test just after 9pm on a Friday night on Blackbutts Road, Frenchs Forest where he registered a blood alcohol reading of 0.100.

He told police that he had been drinking red wine at his home from 6pm to 9pm and was on his way to a friend's place. He was then charged with 'mid-range drink driving'.

There was nothing particularly remarkable about the facts of the case.

Our legal team ensured that he took the right steps in the lead-up to the court date; by helping him with his apology letter and character references, and referring him to counselling.

The matter came before Manly Local Court where two defendants who registered very similar readings (0.09 and 0.115) both received criminal convictions and licence disqualifications because, as the Magistrate put it, "the reading is too high". This was despite it being their first drink driving offence and both having a strong need for a driver licence.

Our client's case then came before the very same Magistrate, who was ultimately persuaded to allow our client to keep his licence and avoid a criminal conviction despite the reading.

It is an example of how careful preparation and persuasive presentation in court can make all the difference when it comes to the result in drink driving cases.

Our client is a 41 year old accountant in a multi-national company.

After finishing work on a Thursday night, he drove to a nearby pub where he consumed a meal and 1 schooner of beer.

He then drove towards his home, but just before arriving had a minor collision with another car.

While police were being called, our client walked a short distance to his home to get a jacket.

While there, he consumed half a bottle of red wine. He then returned to the scene where police breath tested him, finding him to be in the low range p.c.a. (0.066).

Police then charged him with (1) low range drink driving and (2) wilfully altering concentration of blood alcohol.

The fact that police pressed the second charge suggested that they accepted our client's explanation about drinking after the collision.

Our lawyers quickly capitalised on this by requesting withdrawal of both charges on the basis that, as our client's explanation was accepted, the first charge certainly could not be proved beyond reasonable doubt.

Police then withdrew both charges.

Our client is a 48-year-old truck driver from Edgecliff.

He came to us with a lengthy traffic record including 3 prior drink driving offences and a number of speeding offences. He was also on a good behaviour licence.

While on the good behaviour licence, he was stopped by Police for not wearing a seatbelt while driving. This meant that he was facing a 6 month suspension period.

Understandably, he was extremely worried about losing his job as a truck driver and not being able to support his wife and two children.

He had been to a number of other lawyers who had informed him that he had no prospect of achieving a ‘Section 10’, which is where a person escapes a suspension despite being guilty of an offence.

Our client then sought our advice.

We advised him to obtain character references from his employer and his wife. We also advised him to write a letter of apology.

The Magistrate initially indicated that he would not be awarding a ‘Section 10’ due to the client’s traffic record and the fact that he was on a good behaviour licence.

However, we made compelling submissions highlighting the disproportionate effect a suspension would have on our client.

The Magistrate was ultimately persuaded to award him a ‘section 10’ for the offence, which means that he continues to be able to drive.

Our client is a High School Teacher who attended a Hotel in Sydney's South West with several friends.

She consumed a number of apple ciders over the course of the evening, then got into her car and drove towards her home less than 15 minutes away.

She was pulled over for a breath test and was found to be over the legal limit.

She was arrested and taken to the police station where she blew a reading of 0.111, putting her well-into the mid range prescribed concentration of alcohol.

She was immediately suspended from driving and charged with mid range drink driving.

Under the guidance of our lawyers, she gathered character references, wrote a 'letter of apology' to the court and completed the traffic offender program.

The case came before a very difficult Magistrate in Liverpool Local Court.

Despite our client's alcohol reading and her driving record (which included a number of speeding offences), the Magistrate was persuaded to grant her a 'section 10' due to her strong need to retain her driver licence and avoid a conviction.

This means that she remains 'conviction free' and can immediately apply to get her licence back.

A driver who registered a high-range blood alcohol reading of 0.163 avoided a conviction in Downing Centre Local Court after his reading was later reduced to 0.78.

The driver was pulled-over for a roadside random breath test near the Sydney CBD where he registered a positive reading.

He was later taken to the police station where he blew a high-range reading of 0.163.

He informed our lawyers that he had finished drinking around 15 to 20 minutes before being pulled over and that the breath analysis at the police station occurred around 20 to 30 minutes thereafter.

We advised him that his blood alcohol concentration at the time of driving may have been significantly less than when his breath was later analysed at the police station.

We then obtained police records of his roadside breath test that suggested his reading was in the mid-range when first pulled-over.

We then obtained an expert pharmacological report which took a range of factors into account, including his weight, age, the number and type of drinks he consumed, the time he started and finished drinking and what he ate during the day.

The report suggested that he was likely to have been in the low-range when he was driving.

Police initially refused to lower the reading from high-range drink driving to low-range drink driving. A 'defended hearing' date was then set down.

However, our defence team managed to persuade police to accept the lower charge in the days leading up to the hearing.

The Presiding Magistrate was then persuaded to give our client a 'section 10 bond', which means that he avoids a conviction altogether and gets his licence back.

He can now re-commence his employment as a truck driver and take care of his family.

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