The offence of D.U.I (s12 of the Road Transport (Safety and Traffic Management) Act 1999 (‘the Act’) – set out below) is as the name suggests, driving under the influence of alcohol or drug. However, unlike the offence of driving with the Prescribed Concentration of Alcohol – there is no scientific or breath analysis reading required. This offence is generally proven by the observations of police/witnesses and the surrounding circumstances, such as:
- The person’s breath smelt of intoxicating liquor
- Blood shot eyes
- Slurred or incoherent speech
- Unsteady on their feet
- Dishevelled clothing
- Car accident
Police will generally rely upon this section where a breath test or breath analysis is not permitted; which includes attempting to breath test a person at their home or after the expiration of 2 hours from the time of the event – as per s17 of the Act (set out below).
Under the influence:
For this offence to be established a person need not be found drunk driving or that the person was incapable of exercising control over the vehicle – the gravamen of the offence is whether the person was “under the influence”. Hence what is important, is not necessarily the amount of alcohol consumed but the effect of the alcohol consumed. The offence is very much one of degree as to whether a person can be categorised or described as being “under the influence”. (See Molloy v McDonald (1939) 56 WN (NSW) 159 and Lewiston v Brown (unreported, NSWSC, 7 May 1993 Findlay J).
Relevant definitions within the offence include:
Drugs:
As to what constitutes a ‘drug’ for the purposes to this offence is as defined within the Dictionary to the Act:
“drug” means:
(a) alcohol, and
(b) a prohibited drug within the meaning of the this definition, and
(c) any other substance prescribed as a drug for the purposes of this definition.
As to other substances prescribed as a drug – see r127 of the Road Transport (Safety and Traffic Management) Regulation 1999 (NSW) which is set out below.
Drive:
Drive is defined under the act as to:
(a) be in control of the steering, movement or propulsion of a vehicle, and
(b) in relation to a trailer, draw or tow the trailer, and
(c) ride a vehicle.
Vehicle:
A vehicle is defined under the act as:
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any other vehicle prescribed by the regulations.
Note that the offence refers to driving a ‘vehicle’ as opposed to a ‘motor vehicle’.
Penalty:
The penalties for this offence are:
1st offence: 20 penalty units ($2200) or 9 months imprisonment. The disqualification period for this offence is, if no previous major offence an automatic period of 12 months with a minimum of 6 months disqualification[1].
2nd offence: 30 penalty units ($3300) or 12 months imprisonment. If the person is convicted and they have a conviction for a previous major offence within the last 5 years, the automatic period of disqualification is 3 years with a minimum of 12 months disqualification[2].
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999 – SECT 12
12 Use or attempted use of a vehicle under the influence of alcohol or any other drug
(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) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.
Maximum penalty:
(a) in the case of a first offence to which paragraph (a) or (b) relates-20 penalty units or imprisonment for 9 months, or both, or
(b) in the case of a second or subsequent offence to which paragraph (a) or (b) relates-30 penalty units or imprisonment for 12 months, or both, or
(c) in the case of an offence to which paragraph (c) relates-20 penalty units.
(2) If a person is charged with an offence under subsection (1):
(a) the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of:
(i) a drug described in the information, or
(ii) a combination of drugs any one or more of which was or were described in the information.
Note: Division 3 of Part 3 of the Road Transport (General) Act 1999 provides for the disqualification of persons from holding driver licences for certain offences (including offences under this section).
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999 – SECT 17
17 When breath test or breath analysis not permitted A police officer cannot require a person to undergo a breath test or to submit to a breath analysis:
(a) if that person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of his or her treatment has been notified of the intention to make the requisition and the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person, or
(b) if it appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to that person’s medical condition to undergo a breath test or submit to a breath analysis, or
(c) at any time after the expiration of 2 hours from the occurrence of the event by reason of which the officer was entitled under section 13 (1) to require that person to undergo a breath test, or
(d) at that person’s home.
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) REGULATION 1999 – REG 127
127 Substances prescribed as drugs for the purposes of the definition of “drug” in Dictionary to Act
For the purposes of paragraph (c) of the definition of “drug” in the Dictionary to the Act, the following are prescribed as drugs:
(a) substances listed in Schedule 4, and
(b) substances that are salts, isomers, esters or ethers of any of the substances so listed or that are salts of those isomers, esters or ethers.
ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) REGULATION 1999 – SCHEDULE 4
SCHEDULE 4 – Substances prescribed as drugs
(Clause 127)
ALPRAZOLAM
AMYLOBARBITONE
AZATADINE
BARBITURIC ACID DERIVATIVES not otherwise specified in this Schedule BENZODIAZEPINE DERIVATIVES not otherwise specified in this Schedule BROMAZEPAM
BROMPHENIRAMINE
BUCLIZINE
BUPRENORPHINE
BUTOBARBITONE
CHLORAL HYDRATE
CHLORDIAZEPOXIDE
CHLORMETHIAZOLE
CHLORPHENIRAMINE
CHLORPHENTERMINE
CLEMASTINE
CLOBAZAM
CLONAZEPAM
CLORAZEPATE
CODEINE
CYCLIZINE
CYCLOBARBITONE
CYPROHEPTADINE
DEXCHLORPHENIRAMINE
DEXTROPROPOXYPHENE
DIAZEPAM
DIETHYLPROPION
DIHYDROCODEINE
DIMENHYDRINATE
DIMETHINDINE
DIPHENHYDRAMINE
DIPHENYLPRYALINE
DOXYLAMINE
EPHEDRINE (excluding pseudoephedrine)
ETHYLMORPHINE
FENFLURAMINE
FLUNITRAZEPAM
FLURAZEPAM
GLUTETHIMIDE
HYDROXYZINE
LORAZEPAM
MAZINDOL
MEBHYDROLIN
MECLOZINE
MEDAZEPAM
MEPROBAMATE
MEPYRAMINE
METHDILAZINE
METHYLPHENOBARBITONE
MIDAZOLAM
NALBUPHINE
NITRAZEPAM
OXAZEPAM
PENTAZOCINE
PENTOBARBITONE
PHENIRAMINE
PHENOBARBITONE
PHENTERMINE
PHENYLTOLOXAMINE
PIZOTIFEN
PRAZEPAM
PROMETHAZINE
PROPYLHEXEDRINE
QUINALBARBITONE
SECBUTOBARBITONE
TEMAZEPAM
THENYLDIAMINE
TRIAZOLAM
TRIMEPRAZINE
TRIPROLIDINE
[1] As per s188 of the Road Transport (General) Act 2005 (NSW)
[2] Ibid.
