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Driving under the Influence (DUI)

Driving Under the Influence (DUI) is an offence under Section 112 of the Road Transport Act 2013 (NSW).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You drove a motor vehicle, or occupied the driver seat and tried to put the vehicle in motion, or had a full licence and occupied the seat next to a learner driver, and
  2. You were affected by alcohol or any other drug at the time

A ‘drug’ is defined as:

  1. A prohibited drug under the Drug Misuse and Trafficking Act 1985
  2. A substance reasonably likely to deprive or impair an ordinary person’s normal mental or physical faculties, or
  3. Any other substance prescribed by statutory rules

The offence is charged as an alternative to driving with a low, mid or high range p.c.a. The offence is normally charged where police are not able or allowed to breath test you such as where they arrive more than 2 hours after you drove or where you are at your own premises.

A person cannot be charged with both driving with a p.c.a. and d.u.i. if it is your first major traffic offence in the past 5 years.

The maximum penalty for driving under the influence of alcohol is:

  1. 18 months in prison
  2. A 9 month licence disqualification which can be reduced to 6 months, followed by
  3. A 24 month period during which you must have an interlock device installed to your vehicle, and
  4. A fine of $3,300

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose up to:

  1. 18 months in prison
  2. A 3 year licence disqualification which can be reduced to 12 months, and
  3. A fine of $3,300

The maximum penalty for driving under the influence of a drug (first offence) is:

  1. 18 months in prison
  2. A 3 year licence disqualification which can be reduced to 12 months, and
  3. A fine of $3,300

If it is your second or more major traffic offence in the past 5 years the maximum penalty for driving under the influence of alcohol is:

  1. 2 years in prison
  2. A 12 month licence disqualification which can be reduced to 9 months, Followed by
  3. A 48 month period during which you must have an interlock device installed to your vehicle, and
  4. A fine of $5,500

Alternatively, the court can ‘exempt’ you from the interlock requirement and impose up to:

  1. 2 years in prison
  2. A 5 year licence disqualification which can be reduced to 2 years, and
  3. A fine of $5,500

The maximum penalty for driving under the influence of drugs (second or more offence) is:

  1. 2 years in prison
  2. A 5 year licence disqualification which can be reduced to 2 years, and
  3. A fine of $5,500

However, there will be no criminal record, licence disqualification or fine where the court deals with you by way of:

  1. A Section 10(1)(a) dismissal, or
  2. A Conditional release order without a conviction

Defences to the charge include:

  1. Honest and reasonable mistake of fact
  2. Duress, and
  3. Necessity

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