Alcohol and Drug Driving

Question 1

Is the defence of Honest and Reasonable Mistake of Fact available for a PIDS offence? Cite authority.

Answer 1

Yes. In Police v Carrall [2016] it was held that the Defendant [Carrall] was found to be honest and reasonable that he had been given advice by a Police Officer a month earlier in relation to cannabis having been out of his system within the time period that he drove. Therefore it was found to be an honest and reasonable mistake of fact.

Question 2

Are there “attempt” provisions for PCA and DUI offences?

Answer 2

Yes, attempt provisions exist for all PCA and DUI charges.

Question 3

Is there a defence for the presence of Morphine detected in a person’s blood whilst driving? Cite legislation.

Answer 3

Section 111(3) - provides that if there is a presence of morphine in person’s blood or urine a person must not,
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
HOWEVER - Section 111(5) provides that:

111(5) Defence for offence relating to presence of morphine in person’s blood or urine It is a defence to a prosecution for an offence against subsection (3) if the defendant proves to the court’s satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant’s blood or urine of morphine was caused by the consumption of a substance for medicinal purposes.

Question 4

What are the 3 primary offences under the Road Transport Act?

Answer 4

PCA (Prescribed Concentration of Alcohol - Section 110)
PIDS (Prescribed Illicit Drug - Section 111)
DUI (Driving Under the Influence - Section 112)

Question 5

What are the 6 pathways to prosecution?

Answer 5

1. Random Breath Test/BAS
2. Random Oral Fluid Testing
3. Accident Patients
4. Fatal Accidents
5. Sobriety Assessments
6. DUI

Question 6

What is a “Driver” defined as?

Answer 6

Drive includes:

be in control of:

• steering
• movement or
• propulsion of a vehicle

In relation to a trailer, draw or tow the trailer, and ride a vehicle.

Question 7

Do PCA/PID charges require a MOTOR vehicle?

Answer 7

Yes

Question 8

Does a DUI charge require a motor vehicle?

Answer 8

NO. DUI only requires a vehicle.

Question 9

Where do you find the definition for “Novice Driver”?

Answer 9

Section 107 of the Road Transport Act.

Question 10

What is the Definition of a “Novice Driver”?

Answer 10

Novice driver, in relation to a motor vehicle, means:

(a) a person who holds a learner licence, provisional licence or interlock driver licence, or
(b) a person who is not authorised to drive the motor vehicle in this jurisdiction because the person (in this jurisdiction or elsewhere) has had their application for a learner licence, provisional licence or interlock driver licence refused, or
(c) a person who is not authorised to drive the motor vehicle in this jurisdiction because the person has ceased to hold a learner licence, provisional licence or interlock driver licence of a class that includes the motor vehicle as a result of:

(i) the cancellation or suspension of the licence, or
(ii) the disqualification of the person from holding a driver licence, or
(iii) the expiry of the licence, or
(d) a person who is not authorised to drive the motor vehicle in this jurisdiction because the person (in this jurisdiction or elsewhere) has never obtained an applicable driver licence for any class of motor vehicle.

Question 11

What are the 5 PCA ranges and what are their limits?

Answer 11

Novice Range (0.00 to <0.02)
Special Range (0.02 to < 0.050)
Low Range (0.050 to <0.080)
Mid Range (0.080 to <0.150)
High Range (0.150 and above)

Question 12

Are there “attempt” offences available for PCA offences?

Answer 12

Yes. Section 110 of the Road Transport Act contains attempt provisions.

For an attempt offence to be made out, you need to prove that they have formed the intention (mens rea) to put the car in motion.

Question 13

What did the case of DPP v Bone find?

Answer 13

That there is a Defence of Honest and Reasonable Mistake of Fact available for PCA offences, however that can be rebutted by the prosecution proving that the driver would or should be “subjectively aware” because of experienced difficulties that they might be over the lower range limit.

Question 14

What is a motor vehicle?

Answer 14

.. means a vehicle that is built to be propelled by a motor that forms part of that vehicle.

Question 15

What did the caselaw of Thorpe v Shepherd find?

Answer 15

The case of Thorpe v Shepherd is in relation to Wilfully alter concentration (found at Schedule 3, Clause 18). Thorpe v Shepherd found that the prosecution has to prove that the person intended to alter the concentration, not merely that they intended to consume some amount of alcohol after the triggering event.

Question 16

Where would I find the offence of driving under the influence (DUI) of alcohol or any other drug?

Answer 16

Section 112 of the Road Transport Act

112 (1) A person must not, while under the influence of alcohol or any other drug:

(a) drive a vehicle, or
(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or
(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in or on a motor vehicle next to a learner driver who is driving the vehicle.

Question 17

What are the 4 Drugs tested for in relation to a PIDS offence. Cite Legislation.

Answer 17

The Legislation for a offence of driving under the influence of a prescribed illicit drug (PID) is found at Section 111(1). The four drugs are:

• THC
• Speed
• Cocaine
• Ecstasy

Question 18

Cite legislation where I would find that a BAS certificate is taken to be Prima Facie evidence?

Answer 18

Clause 35 (2) is the relevant legislation that states that a signed BAS certificate is admissible and provides prima facie evidence to prove the offence.

Question 19

Clause 31 (3) of Schedule 3 - deeming provisions

Answer 19

(3) In any such proceedings, the concentration of alcohol so determined is taken to be the concentration of alcohol in the person’s breath or blood at the time of the occurrence of the relevant event referred to in clause 3 (1) (a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant’s breath or blood at the time concerned was

Question 20

Cite the legislation where I would find police powers for Alcohol and Drug Testing on Roads.

Answer 20

Schedule 3 of the Road Transport Act

Question 21

What is Schedule 3 generally?

Answer 21

Schedule 3 of the Road Transport Act provides much of the legislation including definitions and powers for Alcohol and Drug Testing on Roads.

Question 22

What are the PCA ranges?

Answer 22

There are 5 ranges for PCA offences.
Novice
Special
Low
Mid
High

Question 23

What does Clause 40 of Schedule 3 Provide for? (Sub 2 – submitted to a BAS)

Answer 23

40 Double jeopardy in relation to alcohol and other drug offences
(1) A person is not liable to be convicted of both an offence against section 112 (1) and a related alcohol or drug offence if the offences arose directly or indirectly out of the same circumstances.
(2) A person who:
(a) is required by a police officer to submit to a breath test by reason of the occurrence of an event referred to in clause 3 (1) (a), (b) or (c) and, as a consequence, to submit to a breath analysis or to provide a sample of the person’s blood under Division 2 of Part 2, and
(b) submits to the breath analysis in accordance with the directions of a police officer, or to the taking of a blood sample in accordance with the directions of an authorised sample taker,
cannot be charged with any of the following offences against section 112 (1):
(c) the offence of driving a motor vehicle, at the time of that event, while the person was under the influence of alcohol,
(d) the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of alcohol.
(3) A person who has had a sample of blood taken in accordance with clause 11 because of an accident is not to be charged with an offence against section 112 (1) if it is alleged as a component of the offence that the person was under the influence of alcohol and the offence relates to the same accident.
(3A) A person:
(a) who submits to the taking of a blood sample under clause 5A, or
(b) who is prosecuted for failing or refusing to submit to the taking of a blood sample under clause 5A but who is able to establish the defence under clause 17 (4) in relation to the prosecution,
is not liable to be convicted of an offence against clause 16 (1) (b) in relation to the person’s inability to submit to a breath analysis that gave rise to the requirement to provide a blood sample.
(3B) A person is not liable to be convicted of both an offence against clause 16 (1) (b) and an offence against clause 17 (1) (a1) if the offences arose directly or indirectly out of the same circumstances.
(4) In this clause:
related alcohol or drug offence means an offence against any of the following provisions:
(a) section 110,
(b) section 111,
(c) clause 16,
(d) clause 17,
(e) clause 18.

* Keep reading this to get my head around it*

Question 24

Describe the defence of Honest and Reasonable Mistake of Fact?

Answer 24

• Also known as the “Proudman and Dayman” defence.
• PCA offences are strict liability offences, meaning that you don’t need the mens rea element of the offence, however the defence of “Honest & Reasonable Mistake of Fact” is available.
• It is a mistake of fact not a mistake or incorrect assumption of law.

“If the facts as believed by the Defendant were true, the Accused would have committed no offence and not some other offence than the one charged”.

Question 25

What is Novice range PCA? Who does it apply to? Cite Legislation.

Answer 25

Novice Range is 0.00 - 0.020 grams of alcohol in 210 litres of breath or 100 mls blood. You would find the offence under Section 110(1). Applies to a person who is the holder of a learner/provisional or interlock driver’s licence. Also applies to driver not licensed to drive in NSW because licence refused/cancelled/suspended/disqualified/expired >6 months or never obtained.

Question 26

Can there be alternative verdicts found for PCA offences? Cite Legislation.

Answer 26

Section 110(6) of the Road Transport Act provides that there can be alternative verdicts for lesser offences. If the court is not satisfied that an offence is proven for a PCA charge (for example mid range) but is satisfied that the person has committed an offence against any other subsection (of a less serious nature) (for example can’t prove mid range but can prove low range), the court may acquit the person of the offence with which the person is charged and find the person guilty of an offence against the other subsection. The person is liable to be punished accordingly.

Question 27

Under what Section of the RT Act 2013, would you find the PCA offences?

Answer 27

Section 110 of the RT Act. Section 110(1) - Novice Section 110(2) - Special Section 110(3) - Mid Section 110(4) - Low Section 110(5) – High Section 110 (6 & 7) – Alternative Verdicts Section 110 (8) – Presence of Higher concentration of alcohol not a defence Section 110 (9) - Defence for offence relating to novice range: It is a defence to a prosecution for an offence against a Novice Range charge if the defendant proves to the court’s satisfaction that, at the time the defendant engaged in the conduct that is alleged to have contravened the subsection, the presence in the defendant’s breath or blood of the novice range prescribed concentration of alcohol was not caused (in whole or in part) by any of the following: (a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance), (b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.

Question 28

What is Low range PCA? Who does it apply to? Cite Legislation.

Answer 28

Low Range is 0.50 - 0.080 grams of alcohol in 210 litres of breath or 100 mls blood. You would find the offence under Section 110(3). Applies to any full licence holder.

Question 29

What is Special range PCA? Who does it apply to? Cite Legislation.

Answer 29

Special Range is 0.20 - 0.050 grams of alcohol in 210 litres of breath or 100 mls blood. You would find the offence under Section 110(2). Applies to a Special Category Driver. Must not drive/attempt to put the vehicle in motion or supervise. A special category driver is: A person who is the holder of a learner/provisional or interlock driver’s licence. Also applies to driver not licensed to drive in NSW because licence refused/cancelled/suspended/disqualified/expired >6 months or never obtained. Also applies to public passenger, heavy vehicles or carries dangerous goods or radioactive material.

Question 30

What is mid range PCA? Who does it apply to? Cite Legislation.

Answer 30

Mid Range is 0.80 - 0.150 grams of alcohol in 210 litres of breath or 100 mls blood. You would find the offence under Section 110(4). Applies to any full licence holder.

Question 31

Police can require a Sobriety Assessment – 4 preconditions what are they?

Answer 31

4 preconditions are: 1. Negative breath test 2. Reasonable belief that person is under the influence of drug other than alcohol. 3. Belief must be based upon manner of driving or behaviour, condition, appearance of person at the time of or after the relevant event 4. Must be carried out at or near place of breath test (roadside).

Question 32

What is High range PCA? Who does it apply to? Cite Legislation.

Answer 32

High range PCA is 0.150 (or above) grams of alcohol in 210 litres of breath or 100 mls blood. You would find the offence under Section 110(5). Applies to any full licence holder.

Question 34

What are the relevant time periods in which to perform a BAS/RBT? Cite legislation.

Answer 34

Schedule 3 Clause 2 (2) of the Road Transport Act provides the time limits for conducting breath test and blood test (2) The relevant time period for the purposes of a conducting a breath test or breath analysis is the period of 2 hours from the occurrence of the event by reason of which the officer was entitled to require the person to submit to a breath test.

Question 34

What does Clause 40 of Schedule 3 Provide for?

Answer 34

Clause 40 of Schedule 3 relates to double jeopardy in relation to alcohol and other drug offences (1) A person is not liable to be CONVICTED of both a DUI drug offence and a related alcohol or drug offence if the offences arose directly or indirectly out of the same circumstances. (2) A person who: (a) is required by a police officer to submit to a breath test by reason of the occurrence of an event and, as a consequence, to submit to a breath analysis or to provide a sample of the person’s blood; (b) submits to the breath analysis in accordance with the directions of a police officer, or to the taking of a blood sample in accordance with the directions of an authorised sample taker, cannot be charged with any of the following DUI offences: (c) the offence of driving a motor vehicle, at the time of that event, while the person was under the influence of alcohol, (d) the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of alcohol. * * Once someone provides a sample of breath or blood, they can only be charged with PCA, PID or DUI drug - they cannot be charged with DUI alcohol. You can’t be convicted of both PCA and DUI drug for the same incident although you can be charged with both

Question 34

Is PCA a Strict Liability offence? What does this mean?

Answer 34

Yes. PCA offences are strict liability offences which means that mens rea and actus reus have to be present but there is a defence of honest & reasonable mistake of fact available for the mens rea.

Question 34

Cite Legislation where the offence of driving under the influence of a prescribed illicit drug.

Answer 34

Section 111 - Presence of certain drugs (other than alcohol) in oral fluid, blood or urine 111(1) A person must not, while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug: (a) drive a motor vehicle, or (b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or (c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

Question 34

What are the limits or what concentration of a prescribed illicit drug can a person have in their system whilst driving that, if detected orally or in their blood/urine during a test would be lawful?

Answer 34

Zero. Section 111 is a presence offence. Any presence of detected illicit drugs means a person cannot drive.

Question 34

What is the time limit for the taking of a sample of blood after an offence under the Schedule 3 Clause 2 (2) Breath test and blood test time limits

Answer 34

Schedule 3 Clause 2 (2)(a) Breath test and blood test time limits The relevant time period for a blood sample taken is 4 hours from the occurrence of the event that entitled the officer to require the person to submit to a breath test.

Question 34

What is the time limit for an oral fluid test sample to be administered? Cite legislation.

Answer 34

Schedule 3 Clause 2 (2)(b) The relevant time period for an oral fluid test given or an oral fluid sample taken is 2 hours from the occurrence of the event that entitled the officer to require the person to undergo an oral fluid test or provide a sample.

Question 34

What is the time limit for the taking of a sample of blood to be taken for a prescribed illicit drug offence? Cite Legislation.

Answer 34

Schedule 3 Clause 2 (2) (c) The relevant time period for a blood sample taken for the purpose of conducting an analysis to determine whether the blood contains any prescribed illicit drugs is 4 hours from the occurrence of the event that entitled the officer to require the person to submit to an oral fluid test.

Question 34

What is the time limit for the taking of a sample of blood and/or urine to be taken after a fatal accident? Cite Legislation.

Answer 34

Schedule 3 Clause 2 (2) (d) The relevant time period for blood or urine samples to be taken after fatal accidents is 4 hours from the occurrence of the accident concerned, or

Question 34

What is the time limit for the taking of a sample of blood and/or urine to be taken after a failed sobriety assessment? Cite Legislation.

Answer 34

Schedule 3 Clause 2 (2)(e) The relevant time period for a blood or urine sample to be taken after a sobriety assessment is 4 hours from the occurrence of the event that entitled a police officer to require the person to submit to the breath test that entitled a police officer to then require the person to submit to a sobriety assessment.

Question 34

In order to conduct a sobriety assessment police must form what view?

Answer 34

Police must form a reasonable belief that a person is under the influence of drug other than alcohol

Question 35

When Police require a person to undergo a sobriety assessment what are the 4 preconditions? Cite Legislation.

Answer 35

Schedule 3, Clause 13 * the person must have submitted to a breath test and the result of the test does not permit the person to be required to submit to a breath analysis (ie: negative); * Police officer has a reasonable belief that the person may be under the influence of a drug other than alcohol; * belief based upon the way in which the person drove (manner of driving) or by the behaviour, condition or appearance of the person at the time of or after the relevant event for which they were breath tested, and * the assessment is carried out by a police officer at or near the place where the person underwent the breath test.

Question 36

Where would I find the Deeming provision for PCA offences?

Answer 36

Clause 31(3) of Schedule 3. The Concentration of alcohol at the time of the relevant event is taken to be the concentration of alcohol (effective deeming) - deeming only available to prosecution, defence must call expert to displace the presumption.

Question 37

What is the important key word for Double Jeopardy (Clause 40(1) of Schedule 3).

Answer 37

The key word is “convicted”. There is a statutory bar to a person being CONVICTED of both DUI and one of the other alcohol or drug related offences, if the charges arise out of the same circumstances.

Question 38

In relation to Double Jeopardy what does Clause 40(2) provide?

Answer 38

Clause 40(2) provides a bar to charging a person with DUI alcohol if they have submitted to a breath analysis or blood sample.