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Is Drink Driving a Criminal Offence in NSW?
Yes. Drink driving is a criminal offence in NSW. If you’re charged with driving with a prescribed concentration of alcohol (a PCA offence) and the matter goes to court, a conviction will go on your criminal record. That’s true even for a first offence and even at the lower ranges.
There’s an important qualification. A court can find the offence proven and still choose not to record a conviction, using what’s known as a section 10. That’s the difference between walking away with a criminal record and walking away without one, so it’s usually the first thing worth understanding.
The five drink driving ranges
NSW sets out drink driving offences in section 110 of the Road Transport Act 2013. The charge you face depends on your blood alcohol concentration, and section 108 defines each range:
- Novice range: more than zero but below 0.02, for learner and provisional drivers who must have no alcohol at all
- Special range: 0.02 to below 0.05, which also applies to L and P drivers and some other drivers
- Low range: 0.05 to below 0.08
- Middle range: 0.08 to below 0.15
- High range: 0.15 and above
Every one of these is a criminal offence. The higher the range, the more serious the penalties, and the more likely a conviction and a longer licence disqualification.
What the penalties are
For a first offence in the novice, special or low range, the maximum fine is 20 penalty units. A penalty unit in NSW is $110, so that’s up to $2,200. These ranges don’t carry a prison term.
Middle range is more serious. A first offence carries a maximum of $2,200 (20 penalty units) or 9 months imprisonment, or both.
High range is the most serious PCA offence. A first offence carries a maximum of $3,300 (30 penalty units) or 18 months imprisonment, or both. For a second or later offence, the maximums rise again, up to $5,500 or 2 years imprisonment for high range.
These are maximum penalties, not the usual result. Courts deal with most matters well below the maximum, and the outcome depends on your range, your record, and how the case is presented. A licence disqualification almost always applies where a conviction is recorded, and the length varies with the range. Our drink driving page sets out how each range is usually dealt with.
Does it go on your criminal record?
If the court convicts you, yes. A conviction for a drink driving offence is a criminal conviction, and it can show up on a national police check. That can affect current or future work, especially jobs that involve driving or a working with children check, and it can affect travel to some countries.
If the court deals with the matter under a section 10, no conviction is recorded. The offence is still proven, but there’s no criminal record from it. For many first offenders, avoiding the conviction matters more than the fine.
Will this leave you with a criminal record?
How a conviction can be avoided
Section 10 of the Crimes (Sentencing Procedure) Act 1999 lets a court find you guilty and then either dismiss the charge or place you on a conditional release order without recording a conviction. The court looks at your character, the seriousness of the offence, and any circumstances that explain what happened.
A section 10 is never automatic. It’s more realistic for lower ranges and first offences, and less likely for high range or repeat offences. What you do before court can make a real difference: getting legal advice early, completing a traffic offender program, and preparing character references. A lawyer who knows how the local Magistrate approaches these matters is usually worth the cost.
Where your case is heard
Drink driving matters start in the Local Court. You’ll get a court attendance notice with a date for your first mention. If you’re pleading guilty, the court can sentence you that day or adjourn to let you prepare. If you’re defending the charge, the matter is set down for a hearing. Blackridge Law appears in Local Courts across Sydney regularly, and knowing the local practice helps.
Frequently asked questions
Will I lose my licence for a first drink driving offence?
Usually, if a conviction is recorded. Disqualification periods depend on the range and whether it’s a first or repeat offence. If the court deals with the matter under section 10, there may be no disqualification, because there’s no conviction. Get advice on your specific range before court.
Is low range drink driving still a criminal offence?
Yes. Low range (0.05 to below 0.08) is an offence under section 110. A first low range offence can be dealt with by a police penalty notice in some cases, which means a fine and an immediate licence suspension rather than court. But if it goes to court and a conviction is recorded, it’s a criminal conviction. You can also elect to have a penalty notice heard in court if you want to ask for a section 10.
Does drink driving show up on a police check?
A recorded conviction can. A section 10, where no conviction is recorded, generally does not create a conviction on your record. How long a conviction stays visible depends on the spent convictions scheme, which is a separate question worth asking your lawyer about.
Get advice before your court date
The gap between a conviction and no conviction often comes down to preparation. If you’ve been charged with a drink driving or other traffic offence, call Blackridge Law on 02 9159 9010 for a free consultation. We’ll tell you honestly where you stand and what we can do.
This article is general information and not legal advice. For advice about your situation, contact Blackridge Law.