Zero Tolerance for Commonsense Driving

As of 20 May 2019 all drink and drug driving offenders will immediately lose their licence and receive a hefty on-the-spot fine.

Announced on 6 May 2019, NSW Roads Minister Andrew Constance has described it as a ‘zero-tolerance’ approach to drink and drug driving.

The real change is in the low range drink driving offences, that is, drivers who register a blood alcohol concentration between 0.050 and 0.079, and anyone caught driving with drugs in their system following a laboratory test.

Previously, if you were caught in the low-range you would be given a court date where a Magistrate would decide if you would be allowed to keep your licence. The penalty used to be a fine and a six-month disqualification, and while this was higher you would be given an opportunity to ask for leniency before your licence was taken off you for 6 months.

You will now automatically have your licence disqualified for 3 months and be hit with a $561.00 fine if you’re caught in the low range or have drugs in your system.

What Message? 

While the Roads Minister thinks this is the best way to send a strong message and deter people from drink and drug driving, the Law Society of NSW, the key professional body for Lawyers across the State, have a different take on it.

The President of the Law Society, Elizabeth Espinosa, thinks it will increase offence rates and risk re-offending. This is because going to Court can be a profoundly terrifying experience. When it comes to drink-driving, especially drug-driving, Magistrates will not shy away from humbling offenders in front of everyone else in the Courtroom. It can be a strong dose of reality.  Even where an offender gets a lenient sentence, the sheer cost of getting a Lawyer and the humiliation of being lambasted in Court is enough of an incentive for most to never even touch a drink and drive again.

This change in the law is likely to send the wrong message. It also is a change that seems to hurt us living in Manning Valley and Regional NSW far less than those living in a large city or suburbs. In a strange irony, the Minister went as far to suggest that this change is especially needed in Regional NSW. Yet, we cannot help but think that we might now see a surge in other offences, like driving while disqualified.

Losing Your Licence
A Disaster

The problem is that an automatic, on-the-spot disqualification hurts Regional NSW the most. For many of us living here in the Manning Valley where there is non-existent public transport other than the local school bus or a taxi, losing your licence on-the-spot today could mean losing your job and livelihood tomorrow. Before this change, you would have a few weeks, in some cases even several, to break the news, adjust your life and work around it. This could have been the difference between losing your job or not.

Now, it is important to qualify all of this with the following: drunk-driving, and especially drug-driving, is a selfish and dangerous thing to do. We can all agree that if your drunk and get behind the wheel, you deserve to have your licence taken away immediately.

But the change in the law might not actually affect someone who is drunk or affected by drugs, and herein lies the problem. To qualify for a low-range drink-driving offence, you need to have a blood-alcohol content of 0.050 to 0.079, and to qualify as drug-driving you just need to have drugs show up in your system after a lab test. However, if you registered at 0.050, you probably aren’t even close to drunk and if you’re the type who winds down at the end of the day with a schooner or three you might not even feel it at 0.050. If you’re found with a drug like marijuana in your system, the results likely wouldn’t be able to tell whether you had a joint two hours ago or two weeks ago.

Tiredness A Culprit

Being tired and fatigued and being at the wheel can also be as bad or worse, as being affected by alcohol and drugs when you’re driving. However, this issue has not been addressed with any penalty or disqualification of licence and can be just as dangerous. I’m sure we’ve all seen the ads on television with the Tradie’s Ute rolling over and over down the road. It’s a complicated issue and obviously cries out for more education prior to and during the time you hold your licence rather than when you’ve lost it. By this I mean the Traffic Offenders Program that everybody who is before the court for such an offence is required, or should do, if they are seeking leniency. It seems to me that this is shutting the door after the horses bolted.

Now, you might be thinking, how can you tell if you’re at 0.049 or 0.050? The answer is that its not possible to tell without using a calibrated breathalyser and it’s not as if there is a calibrated breathalyser in every pub or motor vehicle. Not only that but on any given day you might get to that 0.050 quicker than others. This is because there are so many factors involved in blood flow, such as the obvious like height, weight and gender, but also the less obvious things like what you ate for breakfast this morning, hereditary genes and how much moving around you did during the day. All these things and many more can affect the rate that alcohol is absorbed into the blood stream. 

Ask The Minister

The question you may wish to ask your local member is how do we know what our alcohol level or drug presence is before we drive? The police certainly will know but you will not. The answer then is not to take drugs or alcohol whatsoever well before you drive. So why don’t the politicians make it zero alcohol rather than a random calibration that none of us really know what we are without the ability to test ourselves without the expense of a calibrated breathalyser machine that needs to be updated every six months to be accurate?

If the Minister wanted to send a real message on drink-driving, maybe they would scrap the low-range all together and ban us from having one drop of alcohol. This would certainly be a ‘zero tolerance’ approach and send a clear message that our standards as a society need to change. Furthermore, they could be more discerning and appreciate that its really only a class of drugs, like ice, methamphetamines and cocaine that are causing big problems on the road. I wonder what the Alcohol Lobby’s attitude to this approach would be?

Instead, losing one’s licence may just now form part of the normal experience for many. The most common theme we hear when people get charged with low range drink-driving is that they honestly thought they were ok. We have all heard of the guide ‘Two drinks in the first hour, one drink an hour after that’ and we have all heard it be proven wrong time and time again. We estimate that many people will continue to lose their licence because of low range drink-driving and it will take them completely by surprise.

Changing Attitudes 

Again, it is not that we think it is a bad thing to not drink and drive. On the contrary, it’s a fair thing to work toward. This change, however, does not do enough to meaningfully change Society’s attitudes. Criminal Law, for better or worse, is traditionally a blunt instrument yet it doesn’t always have to be this way. Changing a Society for the better sometimes needs to be more like performing surgery rather than dishing out a spanking. Instead of using all the varieties of equipment at the disposal of a surgeon, the Minister has opted to operate on us with a bludgeon.

Before this change, it would be up to a discerning Magistrate to carefully balance the circumstances of the offence with the history of the driver. While not always a perfect system, at least it meant that Magistrates could consider a more nuanced sentence. 

This common sense approach is precisely what the Minister seems to be attacking though. He went as far to suggest that is concerning that Magistrates would actually dare to exercise their duty under the Crimes (Sentencing Procedure) Act to provide for a considered, thought out punishment which takes into account not just the objective seriousness of drink and drug-driving but also the subjective circumstances of the offence and the offender. If that punishment ended up being just the embarrassment and expense of going to Court, then a non-conviction was recorded.

In a press conference following the announcement of the changes, the Minister said:

“But what is also very concerning is that when low-range drink drivers appear before the court, around 56 percent of them have basically recorded a non conviction. That means no loss of licence, no fines attached – this now changes that”

There is a very good reason why our learned and experienced Magistrates across the State dealt with low-range drink driving this way and recorded non-convictions. The Minister seems more than happy to find a ‘work-around’ to discretion in sentencing, hoping that your average person couldn’t be bothered to put in an appeal and fork out the legal fees. If you live in Sydney where there is likely a bus stop on your front lawn and a train station down the road that connects you to every suburb in the Metropolitan area then its likely you probably won’t be bothered. But if you can’t fulfil your contract in Forster, Port Macquarie or Newcastle tomorrow you’re left with nothing to work with.

The Morning After

For arguments sake, let’s say you’ve had a big night and went to drive to pick up a hangover cure at 10am the next morning. If you got pulled over and blew 0.052, from 20 May 2019 you would lose your licence on the spot and have to call a cab. This does not consider if you had never had a drink-driving offence before or how good your record is. It also doesn’t consider that you’ve got three kids and if you lose your licence you can’t work and if you can’t work they won’t get fed. You would lose your licence on-the-spot and would have to see a Lawyer and book in an appeal. At the appeal the Magistrate would carefully balance all these things and determine that, while you’re still a dummy for not staying on the couch, they would show you leniency because you made an honest mistake. By that point, however, it might be too late for most.

While the particulars of how an appeal can be made have not been disclosed yet to the public, we anticipate that it would be similar to how it is now with other offences. On your fine you will be given two options: pay the fine or go to Court. You would then apply to the State Debt Recovery Office to have the matter heard in Court. The problem is that by the time you get before the Magistrate, it has been four to six weeks and you may already have lost your job. And if you’re unlucky enough be that one person who had a joint two weeks ago but still got done for Marijuana in your system, it’s a long time to suffer the penalties of an offence that isn’t even meant to target you.

The moral of all this story is not to drink and have drugs in your system and drive. The only sure way that you know you will pass this test is abstinence unless there is a way in which you can accurately, like the Police, know your blood level reading. And herein lies the rub – no one has offered to, or discussed this solution.

James Paton

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