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


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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.

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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.