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DUI – Drive Under The Influence

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What is driving under the influence

The offence of driving under the influence is committed if you drive a motor vehicle or supervise a learner driver, while under the influence of alcohol or any other drug. The main difference between PCA offences and DUI offences is the way in which the evidence is obtained. PCA offences rely on a result from a breath analysis machine. DUI offences are usually the result of direct observations of police officers and/or blood and urine samples obtained.

Penalties for driving under the influence

Drive under the influence (DUI) – first offence penalties

Fine Imprisonment Disqualification Interlock
$3300 18 months With interlock order: 9 months – can be reduced but not less than 6 months.

Exempted from interlock: 3 years – can be reduced but not less than 12 months.
2 year interlock condition on your licence

Driving under the influence (DUI) – second alcohol related offence within 5 years

Fine Imprisonment Disqualification Interlock
$5500 2 years With interlock order: 12 months (can be reduced but not less than 9 months)

Exempted from interlock: 5 years – can be reduced but not less than 2 years.
4 year interlock condition on your licence

Process for driving under the influence (DUI)

DUI charges often arise out of circumstances where police cannot legally conduct a breath test. Examples of this are if it has been more than two hours since you drove, you are at your home, or have been admitted to hospital. DUI can also occur where you return a negative breath test however police suspect you to be under the influence of a drug. If this occurs police are required to conduct a sobriety assessment. If you fail this assessment police can take you to a hospital to have blood and/or urine samples taken. Blood and urine samples are regularly taken in hospitals from drivers who are patients as a result of an accident, drivers involved in fatal collisions, and drivers brought in after failing a police sobriety assessment. These samples are analysed and may provide the basis for a charge of DUI.

Immediate licence suspension for driving under the influence (DUI)

If you are issued with a court attendance for DUI the police may also serve a notice of immediate suspension. This needs to be served within 48hrs of the charge being filed. If you hold a NSW licence that means it is immediately suspended and you cannot drive. If you hold an international or interstate licence it means the authority to drive within NSW is suspended. The suspension is in place until your matter is finalised by a court. If you are considering an appeal against an immediate police suspension you can read more here. Appeals against immediate police suspensions are less likely to be successful than other types of licence appeals. This is because the legal test is much higher. You need to prove to the court that there are exceptional circumstances why you should have your licence back. If your matter is going to be heard at court a successful appeal will only allow you to drive up until the matter is finalised at court. A court may still convict you and impose a period of disqualification following a successful appeal. If you do not appeal, then the court can take the period of suspension into account when setting a period of disqualification.

Court process for driving under the influence

Unless a lawyer is appearing on your behalf you will need to attend court on the date listed on your court attendance notice. The first appearance at court for a DUI charge is a mention date. It will most likely be in a busy list with many other people. Everyone’s court attendance notice says 9.30am so you may be there quite some time. At the mention date you can tell the court whether you would like to plead guilty, not guilty or seek an adjournment. If you plead guilty you may be able to be sentenced on the same day. This is usually not advisable unless you are well prepared. If you plead not guilty you will be allocated a hearing date several weeks away. You can also ask the court to adjourn your matter for a short time (usually two to four weeks) so that you can speak with a lawyer, obtain some references, and complete an approved traffic offenders program.

Is driving under the influence a criminal offence

DUI is a criminal offence and you will most likely receive a criminal conviction. A criminal conviction for DUI will appear on your criminal record and in criminal background checks. There are generally only two ways in which you can a avoid a criminal conviction for DUI. You can plead not guilty and have the matter dismissed if you are successful, or you can persuade the court to deal with the matter by finding you guilty but not recording a conviction.

Interlock orders for drive under the influence

If you are convicted of DUI you will serve an initial period of disqualification, followed by a period where you are subject to an interlock order. This means you can only drive a vehicle fitted with an interlock device. You can seek an exemption order however if this is granted you may be disqualified for a longer period of time.

What is the likely penalty for drive under the influence

Statistics from the New South Wales Judicial Commission show that over a recent four year period over 90% of people charged with middle range PCA were convicted. Less than 10% did not have a conviction recorded. DUI is viewed as a serious offence and avoiding a conviction is rare.

Will I go to jail for drive under the influence

Over a recent four year period only about 8% of drivers charged with driving under the influence received sentences of imprisonment. Where it was a second offence within a five year period almost 30% were sentenced to some form of imprisonment.

Preparing for court

When determining your matter, the Magistrate will read the court attendance notice, police facts sheet, and any material you bring to court. They will also listen to anything that you or your lawyer wish to tell the court. These are called submissions. It is important to ensure that your matter is well prepared. In a busy court there is only limited time for each matter. You need to be able to draw the courts attention to all the relevant considerations quickly. References need to be formatted, addressed and drafted correctly. It is also important that you complete a traffic offenders program.

Why choose Astor Legal

Astor Legal are experts in traffic and criminal law. All of our lawyers are experienced in drink driving matters. Our firm was started by two former police prosecutors who not only handled dozens of these matters every day in court but also used to conduct breath tests and breath analysis tests themselves. We know the systems and processes. Our lawyers will work with you to prepare your matter and then represent you at court. Take advantage of our obligation free case assessment and find out how we can get the best outcome for your matter.