In this article we discuss the strategy and technical legal issues behind what is meant by a First Drink Driving Offence or a Second Drink Driving Offence NSW. For a FREE Telephone Consult with a professional Drink Driving Lawyers please Call 1300 941 900.
Recent DUI dispute in Court
A really interesting issue popped up this week when I was at North Sydney Local Court. The issue surrounded whether or not my client’s current drink driving charge should be considered a second drink driving offence NSW or a first drink driving offence as determined under section 9 of the Road Transport Act 2013.
Basically, the law says that if a person is “convicted” of 2 or more drink driving offences within a 5 year period then it is mandatory that Court must hand down more severe penalties and sentences.
The penalties and sentences for a second or subsequent drink driving offence will vary depending on the type of charge that has been laid But will most certainly increase if deemed to be a second or subsequent offence.
However, sometimes when a second drink driving offence NSW occurs just before the 5 year threshold has been reach then some technical legal considerations will definitely come into play. That is exactly what came about earlier in the week at North Sydney Local Court.
The main issue that came about was this – my client was convicted by a Court for middle range drink driving on 25 August 2009. The in the middle of June 2014 he was charged with another offence of middle range drink driving. His first Court appearance was at the end of July 2014.
At his first Court appearance at the end of July 2014 we successfully sought to adjourn my clients matter so that he could take part in and complete the Traffic Offenders Program. This program went for 6 weeks and my clients matter was subsequently listed for sentence in the middle of September 2014.
So basically what this meant was that my clients matter was listed for first Court appearance at the end of July 2014 which was still within the “applicable re-offending period” of 5 years since his last drink driving conviction was on 25 August 2009.
But because we were able to successfully adjourn his matter until the middle of September 2014 this meant that it would push his new and current drink driving offence outside of the 5 year period, well at least until he was sentenced and a conviction was handed down by the Court.
So the end result was that because my client had not been convicted on his new offence until after 25 August 2014 – which was 5 years since his first drink driving conviction – his most recent drink driving offence was considered to be outside of the 5 year period and treated as a first offence.
It was a strategic move and it yielded a great result for our client.
When the 5 years starts & ends?
So the reason why such technical legal considerations can come into play is because many people, police and even the Courts can become confused as to understanding when the 5 year period starts.
The issue that often confuses people in relation to the 5 year rule is when exactly the 5 years commences. Most people think that the 5 years actually commences from the date that they were arrested and charged with the initial drink driving offence. However, this is incorrect as the 5 year period commences from the date that the person has been “convicted” by a Court.
Generally speaking a person is convicted by a Court when they plead guilty or are found guilty of a criminal offence by a Court and the Court hands down its penalties and sentences for that offence which include the recording of a criminal conviction.
So the critical thing to know is that the 5 year period starts on the date of conviction of a persons first drink driving offences. But more importantly an offence of drink driving will be considered a second or subsequent offence if it is recorded as a criminal conviction within 5 years since the prior drink driving criminal conviction.
So in other words the important dates are the dates in which “conviction” is recorded and not the date that the arrest or charges were laid.
It is very important to note what section 9 of the Road Transport Act 2013 actually says and what the practical effect of this section is.
Determination of “first offence” and “second or subsequent offence”
Section 9 of the Road Transport Act 2013
If in doubt always revert back to the current and relevant legislation which can generally clear up any misconceptions or unclear issues. In relation to determining what when the first offence actually commences and how a second of subsequent offence can come about the we need to look at section 9 of the Road Transport Act 2013. It reads as follows:
(1) Application of section This section applies to the determination of whether an offence against a provision of this Act or the statutory rules is:
(a) a first offence, or
(b) a second or subsequent offence.
Note : The Act and the statutory rules provide in some cases for different penalties or disqualification periods, or for forfeitures, in connection with an offence depending on whether a particular offence is a first offence or a second or subsequent offence.
(2) Second or subsequent offence If a person is convicted of an offence (the “new offence” ) against a provision of this Act or the statutory rules, the new offence is a “second or subsequent offence” only if:
(a) the person, within the applicable re-offending period (if any) for the offence concerned, was convicted of another offence (the “previous offence” ) that was:
(i) an offence against the same provision, or
(ii) an offence against a former corresponding provision, or
(iii) an equivalent offence to the new offence, and
(b) the occasion when the new offence occurred was different from the occasion when the previous offence occurred.
(3) Except as provided by subsection (4), the “applicable re-offending period” for a particular offence for the purposes of subsection (2) (a) is:
(a) the period of 5 years, or
(b) such other period as may be specified by a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) as the applicable re-offending period for the offence for the purposes of this section.
(4) An offence does not have an applicable re-offending period if a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) specifies that there is no such period for the offence for the purposes of this section.
(5) A previous offence is an “equivalent offence” to a new offence for the purposes of subsection (2) (a) (iii) if:
(a) where the new offence is an offence against section 54 (1)-the previous offence was an offence against section 53 (3) or 54 (3) or (4) or a corresponding former provision or a major offence, or
(b) where the new offence is an offence against section 54 (3)-the previous offence was an offence against section 53 (3) or 54 (1) or (4) or a corresponding former provision or a major offence, or
(c) where the new offence is an offence against section 54 (4)-the previous offence was an offence against section 53 (3) or 54 (1) or (3) or a corresponding former provision or a major offence, or
(d) where the new offence is an offence against a provision of Chapter 5 or Schedule 3-the previous offence was a major offence, or
(e) a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) declares the offence to be an equivalent offence to another offence for the purposes of this section.
(6) Without limiting subsection (5) (e), an offence against a law of another jurisdiction may be declared to be an equivalent offence for the purposes of this section.
(7) In determining whether an offence is a second or subsequent offence, the following matters are immaterial:
(a) the order in which the offences concerned are committed,
(b) whether or not the offences concerned were subject to the same penalties.
(8) First offence An offence against a provision of this Act or the statutory rules is a “first offence” if it is not a second or subsequent offence.
(9) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was convicted, the court may only impose a penalty for the offence as if it were a first offence.
So if we are to break these laws down into more simplified terms the main sections that we need to focus on is sub-section 2 and sub-section 3.
Section 9(3)(a):
Lets start backwards with section 9(3) which clearly points out what the “applicable re-offending period” is in relation to drink driving offences in New South Wales. As we can see sub-section 3(a) clearly says that it is 5 years. https://dev.cloudsites.pw/5-year-rule-for-second-drink-driving-offence-nsw/So this is our starting point to understand that if a person re-offends with a similar offence within a 5 year period then the “new offence” will be considered a second or subsequent offence and as we have previously mentioned will often be subjected to harsher penalties and sentences compared to a first offence.
Section 9(2):
Then if we look at the all important section 9(2) it basically says that if a person is “convicted” of an drink driving offence and that they have also been “convicted” of a prior drink driving offence (or major traffic offence) within the “applicable re-offending period” which we know to be 5 years, then this new offence will be considered a second or subsequent offence which automatically increases the penalties and sentences.
The critical thing to note here is that the 5 years period doesn’t start at the time of charge but instead at the time when the Court records a criminal conviction.
The recording of the criminal conviction is the crucial point in time to establish in determining whether the new offence is within the 5 year period. Forget the arrest date and the charge date, it comes down to the date of conviction and that is usually when the Court hands down its sentence on a drink driving matter.
What the Court can do if your matter is on the cusp of the 5 year period?
If the Court catches wind that you are seeking to adjourn your drink driving matter for the purpose pushing the Court proceedings out past the 5 year period then the Magistrate of the Court may very well decide to accept your plea of guilty at the first Court mention then convict you and adjourn your matter for a later sentencing date.
That way if the first DUI Court Appearance is within the 5 year period then the Court can ensure that it is dealt with as a second or subsequent offence if they decide to convict you on that first Court appearance. Some Magistrates will be savvy enough to pick up on this issue however if they are not then you should be able to rely on the laws and procedures that we have discussed above.
Obviously the timing of the conviction of the first offence and the timing of the new offence need to fall into the right place for a person to be able to exercise these laws to their advantage.
Professional Legal Drink Driving Advice
As you can see from the scenario and the laws that we have discussed through out this blog post there are a number of strategic and technical legal consideration that need to be understand when seeking to obtain the best result that one can in Court on a drink driving offence.
The reality is that the penalties and sentences for a second drink driving offence NSW can be double that of a first offence. So it can definitely pay to seek out professional legal advice on these types of drink driving offences in New South Wales.
It could mean the difference between getting your licence back a lot quicker or even staying out of jail.
Rest assure that there is help out there and should you have a drink driving offence in New South Wales then please feel free to contact our office to have a chat with our experienced Sydney drink driving lawyers.
We are very willing to have a first FREE telephone consultation with you and then if you wish to obtain our services to represent you in Court we are happy to discuss with you our very reasonable fixed fees that apply and what we can do in helping you get the best Court result possible.
Speak to our DUI Lawyers – Josh Boorman Ph: 1300 941 900
Our DUI Lawyers can be contacted at:
Sydney Drink Driving Lawyers | DUI Solicitors NSW
Email: jboorman@boormanlawyers.com.au
