From 20th of May 2019, NSW police will have the power to issue an on the spot licence suspension and penalty notice if you are caught drink or drug driving above the legal limit.
Prior to these changes, if you were facing any drink driving or drug driving charge it must be dealt with by a court. Police could only issue immediate licence suspensions to drivers facing mid range or high range PCA offences and certain charges for driving under the influence of drugs. This meant that drivers facing Low Range, Special Range or Novice Range PCA offences could continue to drive until their court date.
Under the new legislation police can now issue an on the spot licence suspension to anyone driving over their legal limit – including those facing Low Range, Special Range and Novice Range PCA offences; as well as those driving with a prescribed illicit drug in oral their fluid/blood/urine. Additionally, these drivers may now be issued with a penalty notice instead of having to attend court.
What happens if I receive a suspension?
If you are issued with an on the spot suspension under these laws, your licence will be suspended immediately for a period of 3 months. Whilst you can elect to have the matter determined by a court, you will remain suspended from driving until the court date.
A court may finalise your matter without imposing a conviction, however, if the court imposes a conviction you risk receiving the automatic disqualification period. The disqualification period imposed by the court may be backdated to commence on the day your licence was suspended by the police; however, it can potentially be longer than 3 months.
How much is the penalty notice and will I get a criminal record?
A penalty notice can only be issued if you have not been convicted of, or issued with a penalty notice for a similar offence within the previous 5 years. The fine amount will be $561.
Payment of a penalty notice is neither a criminal conviction nor an admission of guilt, therefore you will not get a criminal conviction if you do not take it to court. However, if you elect to take your matter to court you may receive a criminal conviction.
Importantly, if you pay the fine and deal with it out of court, it will still be considered a previous offence when determining whether any new offence is a ‘second or subsequent offence’. That means that even though it is not a conviction, if you are caught again within a 5 year period of paying the fine, any new offence will be classed as a ‘second or subsequent offence’, for which you will face harsher penalties.
I need my licence for work. Can I appeal the licence suspension?
Yes. If you want to appeal against the suspension, this is different from court electing on the fine. You will have to file a separate licence suspension appeal application with the Local Court registry within 28 days.
License appeals can be difficult because the legislation sets out that a court cannot vary or set aside an immediate police suspension unless there are exceptional circumstances. Exceptional circumstances must be something that is not common or usual, and an appeal based solely on the need to drive for work is unlikely to be successful.
It is important to understand that lodging a suspension appeal does not place a hold on the police imposed suspension. In NSW there is no such thing as a ‘work licence’, so if you are issued with an immediate police suspension you cannot drive under any circumstances.