How Long Does Drink Driving Stay on Your Record in NSW? A Legal Guide

A drink driving charge in New South Wales (NSW) can have serious implications for your future, from affecting employment opportunities to increasing insurance premiums. Such a conviction becomes part of your criminal history, which is recorded within a national database and can impact various aspects of your life. Knowing how long such a conviction stays on your record and the steps you can take to mitigate its effects is crucial for moving forward. This guide provides authoritative insights into NSW’s laws, court processes, and strategies for defending against drink driving offences.

Key Takeaways:

Criminal Record Duration: Drink driving offences in NSW can stay on your criminal record for up to 10 years.
Severity Matters: High-range or repeat offences have more severe legal consequences, including longer retention on traffic records and potential imprisonment.
Legal Representation is Crucial: Engaging a specialised criminal lawyer early can significantly improve your chances of minimising penalties and protecting your record.---

What Constitutes a Drink Driving Offence in NSW?

Definition and Legal Framework

Under the Road Transport Act 2013 (NSW), drink driving occurs when a person operates a vehicle with a blood alcohol concentration (BAC) exceeding the prescribed limit. BAC is measured through breath, blood, or urine tests conducted by authorised officers.

Legal BAC Limits

Learner (L) and Provisional (P1 and P2) Licence Holders: Zero BAC.
Full Licence Holders: Less than 0.05 BAC.
Commercial Drivers: Less than 0.02 BAC.

Exceeding these limits constitutes a strict liability offence, meaning intent or knowledge is not required for a conviction.

Types of Drink Driving Charges

Low-Range PCA (Prescribed Concentration of Alcohol): BAC between 0.05 and 0.079.
Mid-Range PCA: BAC between 0.08 and 0.149.
High-Range PCA: BAC of 0.15 or higher.
Driving Under the Influence (DUI): Impaired driving due to alcohol or drugs, regardless of BAC level.

A DUI offence is classified as a criminal offence, impacting an individual's criminal record and the duration it remains on their records. It can affect job opportunities, particularly in driving roles, and the penalties vary across states and territories. It is just as serious as High-Range PCA in terms of penalties.

Penalties for these offences vary under the Road Transport Act 2013, Sections 110 and 205.

Is a Drink Driving Offence a Criminal Offence?

A drink driving offence is indeed considered a criminal offence in Australia. This serious breach of traffic laws can lead to severe penalties, including hefty fines, imprisonment, and licence disqualification. As a criminal offence, a drink driving conviction will be recorded on your police record and may appear on a National Police Check. However, under the Criminal Records Act 1991 (NSW), certain convictions can become spent after a specified period, meaning they no longer appear on most background checks. This is particularly relevant for one-off offenders who do not reoffend within the 10-year period. Understanding the criminal nature of drink driving offences underscores the importance of adhering to legal blood alcohol concentration limits and seeking legal advice if charged.

How Long Does a Drink Driving Offence Stay on Your Record?

Criminal Record Duration

A drink driving offence may be recorded as a conviction on your criminal record if a court finds you guilty. The Criminal Records Act 1991 (NSW) allows certain convictions to become "spent" after 10 years, provided no term of imprisonment has been imposed.

Spent convictions no longer appear on most criminal background checks but may still be accessible for specific professions or legal matters.

Traffic Offence History

Traffic offences, including drink driving, remain on your driving record maintained by Transport for NSW.

Factors Influencing Duration

Severity: High-range PCA offences for example, are treated more seriously and may have longer-lasting consequences.
Repeat Offences: Additional offences extend the duration a conviction remains relevant.
Court Orders: Courts may impose conditions affecting how long an offence remains on record.

Case Law

For example, in Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court clarified sentencing considerations for repeat offenders, highlighting the importance of proportionality in penalties. Veen states that the aggravating factor of prior convictions should be interpreted in a manner consistent with the proportionality principle. The prior criminal record “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”.

What Are the Consequences of a Drink Driving Offence?

Legal Penalties

Under the Road Transport Act 2013:

Fines range from $600 to $5,500 depending on the offence.
Licence disqualification periods vary, with mandatory interlock conditions for certain offences.
Imprisonment for serious or repeated offences. Offences which may impose imprisonment are Mid-Range, High-Range and DUI).

What is Interlock?

An interlock device analyses a breath sample for presence of alcohol. It is installed in motor vehicles and prevents them from starting if it detects a certain BAC level of alcohol.
If you have been convicted for a drink driving offence and imposed an interlock period, you will be restricted to driving vehicles with interlock devices. For many offences, it is mandatory to have an interlock device installed in a vehicle upon conviction and expiry of an initial disqualification.

Employment Impacts

DUI offences can affect employment, particularly in:

Roles requiring a valid driver’s licence, such as delivery drivers, truck operators, and ride-share drivers.
Professions where a clean criminal record is essential, including law enforcement, childcare, healthcare, and certain financial services roles.
Jobs in industries such as logistics, public transport, and aviation, where driving or safety compliance is critical.

Employers often view a drink driving offence as a serious breach of trust, reflecting reckless or irresponsible behaviour. However, it’s important to note that employers are legally prohibited from discriminating against individuals with a criminal record unless the offence is directly relevant to the job or poses a risk to public safety. This means that while a drink driving offence can be a barrier to certain employment opportunities, it does not automatically disqualify you from all job prospects. Understanding your rights and the potential implications of a drink driving conviction can help you navigate the job market more effectively.

Insurance Consequences

Insurers may:

Increase premiums based on your driving record.
Deny coverage for certain claims arising from a drink driving incident.

What to Do After a Drink Driving Charge?

Immediate Steps

Seek Legal Advice: Consult a criminal/traffic lawyer experienced in traffic offences.

Mitigating the Impact

Participate in programs like the Traffic Offender Intervention Program (TOIP) to demonstrate remorse, understand more about the traffic rules and offences and potentially reduce penalties that the Magistrate/Judge might impose.

Accessing Your Record

Request a traffic record from Service NSW so that your lawyer is able to advise you on the likelihood of penalties.

Can You Clear a Drink Driving Offence?

Spent Convictions Scheme

Under the Criminal Records Act 1991 (NSW):

Convictions for less severe drink driving offences may become spent after 10 years.
High-range PCA or repeat offences may not qualify.

Traffic Offences

Traffic records are generally permanent but may lose relevance over time unless further offences occur.

Section 10

There are many circumstances for different offences which a section 10, also known as a ‘non-conviction’ which can be imposed.

In the Guideline Judgment handed down from the NSW Court of Criminal Appeal, it was held that in cases of High-range PCA, a section 10 is rarely appropriate.

Every case is different and to be properly advised on whether or not there is a likelihood of a section 10 being imposed, you must speak to a lawyer.

Legal Support

Engage a lawyer skilled in NSW drink driving laws and experienced in handling criminal offences to build a robust defence strategy.

Conclusion

Understanding the implications of a drink driving offence is essential for protecting your future. If you're facing a charge, seek professional legal advice to explore your options, minimise penalties, and safeguard your rights. Contact us today for expert guidance tailored to your situation. From penalties to the duration on your record, every case is unique. Consulting an experienced lawyer ensures you navigate the legal process effectively and minimise long-term impacts.

Frequently Asked Questions

Does drink driving always result in a criminal record?

Not always. Minor offences dealt with by infringement notices may not result in convictions, and in certain circumstances for different offences, a non-conviction may be imposed.

Can you appeal a drink driving conviction?

Yes, through the District Court of NSW, but appeals must be filed within 28 days of the decision from the Local Court.

Can drink driving charges be dismissed?

Charges may be dismissed under Section 10 of the Crimes (Sentencing Procedure) Act 1999, particularly for first-time or low-range offences.

What happens if I refuse a breath test?

Refusing a test is an offence under Schedule 3, clause 16(1) of the Road Transport Act 2013, carrying penalties which are not less severe than the penalties for high-range PCA.

Do I have to comply with an interlock condition?

If you are not granted an Interlock Exemption, you may be disqualified for 5 years as an alternative to complying with the interlock condition and driving with an ‘Interlock Licence’.

What happens if I am pulled over for suspected drink driving?

If you are pulled over for suspected drink driving, the police will conduct tests to determine your blood alcohol concentration (BAC). If you are over the legal limit, you may face penalties including fines, license suspension, or even imprisonment.