CRIMINAL DEFENCE LAWYERS

Drink driving charges and you – A guide to pleading guilty to a drink driving charge

So, you’ve been charged with a PCA offence…

This guide explains what to do if you are pleading guilty to a drink driving offence and have to go to a NSW Local Court.

Before you go to Court you should…

Get legal advice as soon as you can

It can take time to get legal aid or to see a private lawyer. If you prefer to speak for yourself in court, it is still important to get legal advice before your day in court.

Remember, the court will be making decisions about your future. So getting legal help is a good idea!

Request an interpreter if you need one

Ring the Local Court where your case is to be heard and ask them to book an interpreter in your language. If you are seeking legal aid, the Legal Aid Commission can arrange an interpreter for your appointment with a duty lawyer. Make sure you have your papers ready.

Who gives advice?

The Legal Aid Commission of NSW provides free legal advice to anyone on most matters. However, legal aid is only available for traffic offences if there is a real possibility of a gaol penalty, or there are exceptional circumstances.

If this is the first time you have been charged with a Prescribed Concentration of Alcohol (PCA) offence, it is unlikely you will get a gaol sentence. However, if:

a) it is a high range PCA offence and if it involves aggravating features such as a very high reading, an accident and/or dangerous driving, a gaol penalty is more likely and you may therefore be eligible for legal aid.

b) you have previously been charged with a high range drink driving offence, you face the risk of a gaol penalty and may be eligible for legal aid.

In those situations, you should apply for legal aid before your first court appearance. Speak to the duty solicitor at court.

If you then have to go to the Local Court, a duty lawyer will represent you if you are eligible for legal aid. To contact Legal Aid, ring your nearest office to make an appointment.

Private Lawyers provide legal representation and advice. For criminal, driving or traffic matters, it is best to obtain advice from a law firm or lawyer who specialises in these areas.

Fees for private lawyers vary, so make sure that you understand the likely costs involved at the first interview.

Getting ready for Court

Get references and prepare a letter to the Magistrate or written notes of what you will say. It may be helpful to get written references from people who can talk about your good character.

These references should be addressed to the Magistrate and refer to the current charges. Ask for the Legal Aid information card about Character References. The court will consider a number of factors in deciding the appropriate penalty and disqualification. These include:

Whether you believed you were over the limit when you drove

Any particular reason as to why you chose to drive

Whether you were detected by Random Breath Test or as a result of erratic or dangerous driving

The length of the journey/intended journey

The number of people put at risk by the driving (passengers, members of the public etc)

Any collision that occurred

Any significant effect that licence disqualification may have on you, your employment or other people who rely on you (children, sick relative, etc)

The absence of viable alternative transport

How long you have held a licence and what your overall traffic record is like

Your likelihood in reoffending

Either prepare a short letter in your own words to give to the Magistrate, or prepare written notes. Include any explanation that relates to the factors set out above. In particular, address:

Any special reason why you were driving

Why you were driving after consuming alcohol

In your own words, why you can give an assurance that you will not drink and drive in future

Any particular need you have for a licence eg. In your work or for personal reasons

If you need a driver’s licence for work make sure you have a letter from your employer to say what will happen to your job if you are disqualified from driving for a long time

If you have other reasons for needing a driver’s licence (eg. A disabled child, health problems) make sure you have evidence (ie. Doctor’s certificate or report) to support this

What your weekly income is and expenses you have to pay (which can assist the court in calculating any fine to be imposed).

What should you do at court?

You should not drive to court in case you lose your licence. Bring your licence with you unless the police have already taken it, as the court may require you to surrender it.

When you get to court, find the court officer and tell them that you are unrepresented and that you are pleading guilty.

Check the police fact sheet and certificate

The police will have a fact sheet which says why you were arrested. It may also refer to what the police say you told them about how many drinks you had. Make sure you read the fact sheet. Also, check the certificate which states your blood alcohol level and the machine printout from the breath analysis machine to see that they match the time on the police fact sheet. If you disagree with what the police say happened, you may tell the Magistrate when it is your turn to speak.

The police prosecutor should also show you a copy of your previous criminal record if you have one and a copy of your driving history.

Read these documents to make sure they really are yours.

You should dispute any incorrect information on your criminal or traffic record.

Listen to other people make their submissions in court

Wait for your name to be called. It can be helpful to sit inside the courtroom and listen to other people presenting guilty pleas to give you a better idea of how to present yours. When you are called, enter a plea of guilty and either hand your letter to the Magistrate or read from prepared notes.

Give the court your written references, letter from your employer, and any other supporting documents.

In some courts a diversionary program called The Traffic Offenders Program is conducted. Generally, if you attend the program and complete the assignments, the penalty applied will be reduced. If it is available you can ask the Magistrate to refer you to the program.

After the court’s decision: What can you do?

If there is something you don’t understand about the court’s decision, ask the Magistrate to explain. Remember to do the following:

1. Do not drive while disqualified

You will be disqualified from driving for a period of time. You must hand in your licence. The maximum penalty for driving whilst disqualified is 18 months gaol and/or a $3,300 fine. There is also an automatic minimum disqualification for an additional 12 months.

2. Re-apply for your licence

Once the disqualification period is over, you have to re-apply for your licence as you will not get it back automatically. You will be a cancelled driver until you reapply for your licence (it is an offence to drive whilst cancelled).

If you were charged with Mid Range or High Range PCA, your licence should have been suspended and taken away on the spot by the police. If this is the case, ask the Magistrate to start your disqualification period from that date.

If you think you will have trouble paying your fine within 28 days, speak to court staff before you leave about making a ‘time to pay’ arrangement.

If you do not pay the fine within the time set, the State Debt Recovery Office (SDRO) can impose a range of penalties against you. For more information call the SDRO on 1300 655 805.