Criminal Law & Traffic Law

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Criminal Law and Traffic Law

This page provides answers to frequently asked questions that you may have relating to Traffic Law in NSW. 
Frequently Asked Questions
What are my obligations as a licensed driver?

The holder of a driver licence must tell the relevant driver licensing authority*

  • about any change in his or her name or residential address, or address for service of notices, not more than 14 days after the change; and
  • as soon as practicable, of any permanent or long term injury or illness that may impair his or her ability to drive safely.

A driver licensing authority may require the holder of a driver licence to:

  • submit to tests of the holder’s knowledge of road law and safe driving practices;
  • submit to tests or assessments of driving ability;
  • submit to examination by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards to determine the person’s medical fitness to hold a driver licence, or a licence of a particular class; or
  • attend a specified medical practitioner or allied professional practitioner for the purpose of that examination

Road Transport (Driver Licensing) Regulation 2008 (NSW) cl 117

Will my international licence be recognised?

The RMS generally recognises driver licences issued by another jurisdiction and licence conditions that apply to those licences, so that a visiting driver who holds a current:

  • Australian driver licence or learner licence (including a New Zealand learner licence) issued in another jurisdiction;
  • foreign driver licence and international driving permit; or
  • foreign driver licence that is written in English or is accompanied by an English translation,

that authorises him or her to drive a motor vehicle of a particular kind may drive a motor vehicle of that kind in the jurisdiction, and is exempt from the requirement to hold a driver licence. However, that person ceases to be exempt under certain circumstances.

I got demerit points taken from me in another state, does it still count?
Provisions are made under Road Transport Act 2013 (NSW)  s 29(3)-(6) for mutual recognition of demerit points incurred in another Australian jurisdictions. This means that any demerit points you incur whilst driving in another State will be transferred  
What are the drink driving (DUI) penalties in NSW?

It is an offence to drive a vehicle while under the influence of intoxicating liquor or alcohol in NSW. A driver will be found to be guilty of an offence if the driver drives, or is in charge of, a vehicle with more than the prescribed concentration of alcohol present in his or her blood. A member of the police force may require the driver of a vehicle, or any person that the member of the police force had reasonable grounds to believe was the driver, to provide a sample of breath for a preliminary test in accordance with his or her directions. If the member of the police force has reasonable grounds for believing that the driver has contravened the provisions of the legislation that prohibit driving under the influence of alcohol, the driver may be required to undergo a breath analysis, urine analysis or blood analysis.

Regardless of the seriousness of a drink driving charge it is open to a court not to impose any penalty but dismiss the charge under section 10 of the Crimes (Sentencing Procedure Act) 1999 (NSW).  If an order is made under section 10 there is no criminal conviction recorded and no disqualification or fine imposed. In determining whether an individual is eligible for a s10 dismissal the court will consider:

(a) the person’s character, antecedents, age, health and mental condition

(b) the trivial nature of the offence

(c) the extenuating circumstances in which the offence was committed

(d) any other matter the court thinks proper to consider.

The penalties for drink driving are outlined below:

Offence Maximum fine Maximum jail Automatic disqualification  Minimum disqualification
Drink driving penalties in NSW
– First Major offence* within 5 years
Novice range PCA*
0.01 – 0.019
$1,100 Nil 6 months 3 months
Special range PCA**
0.02 – 0.049
$1,100 Nil 6 months 3 months
Low range PCA
0.05 – 0.079
$1,100 Nil 6 months 3 months
Mid range PCA
0.08 – 0.149
$2,200 9 months 12 months 6 months
High range PCA
over 0.150
$3,300 18 months 3 years 12 months
Driving under the influence (DUI) $2,200 9 months 12 months 6 months
Refuse breath analysis $3,300 18 months 3 years 12 months
Willfully alter blood concentration $3,300 18 months 3 years 12 months
Refuse breath test $1,100 Nil 6 months Nil
Drink driving penalties in NSW
– Second or subsequent major offence within 5 years
Novice range PCA (0.00 – 0.019) 2200 Nil 12 months 6 months
Special range PCA ( 0.02 – 0.049 ) 2200 Nil 12 months 6 months
Low range PCA ( 0.05 – 0.079 ) 2200 Nil 12 months 6 months
Mid range PCA ( 0.08 – 0.149 ) 3300 12 months 3 years 12 months
High range PCA ( over 0.150 ) 5500 2 years 5 years 2 years
Driving under the influence (DUI) 3300 12 months 3 years 12 months
Refuse breath analysis 5500 2 years 5 years 2 years
Willfully alter blood concentration 5500 2 years 5 years 2 years
Refuse breath test 1100 Nil

* A Novice range PCA applies to any person who is subject to a zero alcohol limit while driving may be charged with a novice range PCA charge. Broadly speaking, this offence will usually apply to persons who have a special licence such as a learners licence, P1 licence or P2 licence but is also applicable to  persons driving without a valid licence, including suspended and disqualified drivers.

** Special Range PCA applies to any persons who are subject to a special alcohol limit.  This offence will usually apply to persons who have a special licence such as a learners licence, P1 licence or P2 licence. It will also apply to bus drivers and taxi drivers who will usually have a 0.02 limit while operating a bus or taxi service. 

Can I refuse to take a breath test once it has been requested by the police? What will happen if I do?

Once the police have reasonable grounds to suspect a driver is driving in contravention to the legislation, they are entitled to request any tests as reasonably necessary and applicable [Road Transport Act 2013 (NSW) s 114, Sch 3 cl 16(1)]. It is an offence to refuse any test once it has been requested by a police officer. It is not a defence to refuse or fail a breath analysis on the basis that you wanted to seek legal advice before providing a sample for breath analysis.

If a person is requested by police to provide a breath sample but refuses to do so the penalty provisions are the same as high range PCA offence penalties which are severe, up to $1,100.  A criminal conviction will be recorded and if a collision has occurred it is common for a custodial sentence to be imposed. There is no immediate licence disqualification but the Court may elect to do so.

A person may be excused from the requirement if it appears to a member of the police force that the driver is incapable of providing the specimen of breath or a specimen of breath in sufficient quantity for analysis. 

What happens after I am breath-tested?

The results of a preliminary test and the actual breath analysis must be evidenced by a statement signed by the operator of the breath analysis equipment and given to the driver as soon as possible after the results are produced. A certificate that certifies:

  • the results of a breath analysis;
  • that procedural requirements were met in the operation of breath analysis equipment; or
  • the condition of the breath analysis equipment at the time of analysis,

acts as proof of those facts in the absence of proof to the contrary.

What happens when the police suspect you have been driving under the influence of drugs?

A police officer may require a person to submit to an assessment of his or her sobriety in accordance with the directions of the officer where:

  • the person has undergone a breath test and the result of the test does not permit the person to be required to submit to a breath analysis; and
  • the police officer has a reasonable belief that, by the way in which the person is or was driving a motor vehicle on a road or road related area, or is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the vehicle in motion, the person may be under the influence of a drug.
A police officer may require a driver to undergo one or more oral fluid screening tests for detection of the presence of prescribed drugs, and may take the person into custody for oral fluid analysis in the event of a positive screening test or failure to undergo screening. 
Do I have to take a blood test? What will happen if I don't?

It is an offence for a driver to fail or refuse to provide a sample of blood for analysis when required to do so by a member of the police force unless the driver can show the court that there was some substantial reason for his or her failure to comply other than a desire to avoid providing information, including circumstances whereby a medical practitioner is of the opinion a blood test would be detrimental to the person’s medical .

Where a member of the police force might require a driver to be the subject of a preliminary test or a breath or oral fluid analysis but due to the circumstances is precluded from doing so then the member of the police force may require the driver to be the subject of a blood analysis, or where the person is incapable of complying with that requirement, may cause a medical practitioner to take a sample of the blood of the person for analysis.

In New South Wales, a person who has been arrested following failure to submit to or pass a sobriety assessment may be required by a police officer to provide a sample of blood (or urine). Further, a police officer may arrest a person involved in a road accident without warrant and take the person (or cause them to be taken) with such force as may be necessary to a hospital or prescribed place, where the person may be detained and required to provide blood (and urine) samples, if:

  • the accident was a fatal accident, or it is more likely than not that a person will die within 30 days as a consequence of the accident;
  • the person is at least 15 years old and has not yet attended a hospital as a result of the accident; and
  • at the time of the accident, the person was driving a motor vehicle involved in the accident, or occupying the driving seat and attempting to put the vehicle in motion, or was the holder of an applicable driver licence and occupying the seat next to a learner driver who was driving a motor vehicle involved in the accident.

You are entitled where practicable, to elect to allow a medical practitioner to take a sample of his or her blood for analysis when requested to provide a sample of breath for analysis. When conducting a blood analysis the sample of blood must be taken within a prescribed time: 2 hours for alcohol related offences, 4 hours for drug related offences.

Part of the blood sample must be given to the subject of the blood analysis after its extraction.The results of the blood analysis must be provided to the driver as soon as reasonably practicable after the analysis is completed. 

Do I have to take a urine test? What will happen if I don't?

A failure or refusal to provide a sample of urine when required by the legislation is an offence, unless the driver can show the court that there was some substantial reason for the driver’s failure to comply other than a desire to avoid providing information. Where a person refuses to submit to a sobriety assessment as provided in the legislation or, after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug (including alcohol), the person may be required to provide urine samples.

In New South Wales, a person cannot be required to submit a urine sample following a sobriety assessment if it appears to the police officer involved that this would, because of the person’s injuries, be dangerous to the person’s medical condition, or if the person has been admitted to hospital for medical treatment and it appears that it would be prejudicial to the proper care and treatment of the person.  

What are the penalties for drug-driving related offences?

 

Maximum Fine Maximum Jail Automatic disqualification Minimum disqualification
First Offence
Prescribed illicit drug in oral fluid/blood/urine $1,100 Nil 6 months 3 months
Cocaine or Morphine in blood/urine: $1,100 Nil 6 months 3 months
DUI drug $2,200 9 months 12 months 6 months
Refuse undergo oral fluid test $3,300 Nil 3 years 6 months
Refuse to supply blood sample $3,300 Nil 3 years 6 months
Alter amount of drug before oral fluid test $3,300 Nil 3 years 6 months
Driver involved in fatal accident fail to supply blood/urine sample: $3,300 18 months 3 years 6 months
Fail on demand to provide sample of blood/urine, $3,300 18 months 3 years 6 months
Second Offence within 5 Years
Prescribed illicit drug in oral fluid/blood/urine $2,200 Nil 12 months 6 months
Cocaine or Morphine in blood/urine: $2,200 Nil 12 months 6 months
DUI drug $3,300 12 months 3 years 12 months
Refuse to undergo oral fluid test $5,500 18 months 5 years 12 months
Refuse to supply blood sample $5,500 18 months 5 years 12 months
Alter amount of drug before oral fluid test $5,500 Nil 5 years 12 months
Driver involved in fatal accident fail to supply blood/urine sample: $5,500 2 years 5 years 12 months
Fail on demand to provide sample of blood/urine, $5,500 2 years 5 years 12 months

 

 

Speeding offences & penalties in NSW

If you are caught speeding by more than 45 km/h over the advertised speed limit, the police can immediate confiscate and suspend your licence for six (6) months.

Please note, penalties are higher for school zones.

Exceed speed limit by: Demerit Points Light Vehicles Suspension period imposed by the RMS (RTA)
Not more than 10 km/h 1 $114
More than 10 km/h but not more than 20 km/h 3 $265
More than 20 km/h but not more than 30 km/h 4 $455
More than 30 km/h but not more than 45 km/h 5 $872 3 months (minimum)
More than 45 km/h 6 $2,350 6 months (minimum)

 

Are speeding fines different for learner or provisional drivers?

The short answer is yes: Learner and P1 licence holders will have their licence suspended for a minimum of three months for any speeding offence.

Exceed speed limit by: Demerit Points Light Vehicles Suspension period imposed by the RMS (RTA)
Not more than 10 km/h (Learner, P1 or P2 licence holder) 4 $114 Learner, P1 – 3 months (minimum)
Not more than 10 km/h (Learner, P1 or P2 in school zone) 5 $189 Learner, P1 – 3 months (minimum)
More than 10 km/h but not more than 20 km/h (Learner, P1 or P2 licence holder) 4 $265 Learner, P1 – 3 months (minimum)
More than 10 km/h but not more than 20 km/h (Learner, P1 or P2 in school zone) 5 $341 Learner, P1 – 3 months (minimum)

 

What if I choose to have my matter decided by the court?

The court can impose a maximum $2,200.00 fine for all speeding vehicles where the driver was travelling between 1-45 kms over the speed limit. This increases to $2,530.00 for speeding offences over 45kms/hr.

The Court does not have any power to make any orders in respect of demerit points.