Traffic Law

Traffic Lawyers

Baker Love Lawyers can represent you in traffic matters throughout the Newcastle, Hunter and NSW.

Traffic matters are usually dealt with in the Local Court.

Its important that you obtain legal advice as there are serious penalties for traffic matters which can have a significant impact on you. Repeated traffic offences can result in prison sentences being imposed by a Court.

If you want to avoid a conviction or a period of disqualification, you need to obtain legal advice and representation as soon as possible. Your matter may be able to be dealt with by the Court under section 10 of the Crimes (Sentencing and Procedure) Act. If that section applies, the Court does not record a conviction.

For easy reference, we have included a table of penalties that apply to various traffic offences at the end of this page.

Driving Under the Influence of Alcohol

Most drink driving charges are prosecuted by NSW Police by measuring the concentration of alcohol in a person’s system by police obtaining a reading obtained using a breathalyser.

Drink driving penalties within NSW are prescribed by legislation. If a Court convicts you for drink driving, the Court must impose a period of disqualification.

If you want to avoid a conviction or a period of disqualification, you need to obtain legal advice and representation as soon as possible. Your matter may be able to be dealt with by the Court under section 10 of the Crimes (Sentencing and Procedure) Act. If that section applies, the Court does not record a conviction.

We are often asked whether you can refuse a breath analysis. No, you can’t refuse. It is an offence to do so and doing so could result in a new charge of refusing the breath analysis. If you undergo a breath test that returns a positive reading, you will be asked to provide a sufficient sample for a full breath analysis. If you refuse or fail to provide a sufficient sample, without a reasonable excuse, you will be charged with a further offence.

It is not a reasonable excuse to refuse a breath analysis if you claim you want to seek legal advice before the analysis is undertaken.

We can help you consider whether you have a defence to a drink driving charge.

The majority of people who are charged with a drink driving offence plead guilty as that plea may lead to a better overall outcome. However, there are a number of circumstances in which it is possible to plead not guilty and defend the charge. Some of those examples are:

  • Honest & Reasonable Mistake

If you can prove that you honestly and reasonably thought you were under the limit at the time of driving your motor vehicle, this could form a defence. For example, if you consume food at a social gathering that contains alcohol and you were not aware of the food’s alcoholic content, this would be an honest and reasonable mistake. This is a difficult defence to prove and legal advice is recommended before going down this path.

  • Challenge the Reading

If you can prove there was a problem or issue with the equipment the police used to take your blood alcohol reading, and this resulted in a reading that was not correct, this could form a defence. To defend the charge you will need to prove that the breath analysis reading used to charge you was not an accurate representation of your blood concentration at the time of driving the motor vehicle.

  • The Two Hour Rule

The police are not allowed to conduct any kind of breath analysis on you if more than two hours has passed since you last drove a motor vehicle. For example, if you were involved in an accident and the police who arrived on the scene attended to other injured people first, instead of driving you to the station for a breath analysis, it is possible that two hours might have passed before you were required to do a breath analysis.

  • The Home Safe Rule 

It is illegal for police to conduct any kind of breath test on you if you have entered your usual place of residence. This can be tricky as there is no legal definition of what constitutes a person’s residence for example, whether it includes your driveway. Legal advice is important if you think this might apply to you.

  • Police Not Complying with Procedure

There are specific legal procedures that police must follow when they arrest and charge someone with a drink driving charge. These procedures are governed by NSW law. If it can be proved that the police failed to adhere to these procedures, this could form a defence.

If you think one of these defences might apply to you, call us for a consultation.

Driving Under the Influence of Drugs

It is an offence under the Road Transport Act 2013 to drive a motor vehicle whilst under the influence of an illicit drug.

Any driver, motor cycle rider or supervising driver on a New South Wales road or road related area may be subject to a roadside test for the presence of illicit drugs. If the initial test is positive, you will be required to go with a Police Officer to provide a second sample.

If the secondary test provides a positive result, you will be prohibited from driving for a 24 hour period and the second sample will be sent to the Division of Analytical Laboratories (DAL) for further analysis.

If the presence of an illicit drug is confirmed by DAL, you will receive a Court Attendance Notice charging you with driving under the influence of an illicit drug. The sample is retained for 6 months in case you contest the matter in Court.

If you refuse to be tested by a Police when requested, you may be fined up to $3,300.00 in addition to a having your license disqualified for a minimum of six months.

Whilst the roadside analysis only tests for a limited range of drugs, existing Police powers also provide for Police to charge individuals with the offence of driving under the influence of any alcohol or drug.

We are often asked how long do drugs stay in your system. We can’t answer that question! That depends on a wide range of factors but it is important to understand that drugs can be detected in your saliva for a significant time after drug use, even if you feel you are OK to drive.

If you think that you may have illegal drugs in your system, the best decision is not to drive!

If you are charged with an offence, call us for a consultation.

Drinking and Boating

Driving under the influence defences also apply to driving a boat. Random breath testing can be conducted on the skipper of a boat while it is underway (including drifting). An observer in a ski boat and any person being towed must also be under the prescribed alcohol limits.

Permissible concentration of alcohol limits are:

  1. 0.00 for recreational skippers aged under 18 years (youth range);
  2. Less than 0.05 for recreational skippers over 18 years; and
  3. Less than 0.02 for commercial skippers (special range).

Random breath testing does not apply when a vessel is moored, berthed or at anchor. However, a designated driver should remain under the legal limit when out on the water in case they need to move the boat.

The penalties for alcohol related boating offences are serious and include losing your licence, fines of up to $5,500 and/or two years imprisonment. Your boating licence may be immediately suspended and you may be issued with a Court Attendance Notice.

If you are charged with an offence, call us for a consultation.

Dangerous Driving Causing Death of Grievous Bodily Harm

There are a number of serious offences involving the death or grievous bodily harm of an individual when caused by a driver of a motor vehicle.

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

  1. under the influence of intoxicating liquor or of a drug, or
  2. at a speed dangerous to another person or persons, or
  3. in a manner dangerous to another person or persons.

The same elements need to be proven if the dangerous driving occasions grievous bodily harm.

A person convicted of an offence of dangerous driving occasioning death faces a maximum penalty of imprisonment for 10 years. If a person is convicted of this offence in circumstances of aggravation, the maximum penalty of imprisonment increases to 14 years.

A person convicted of the offence of dangerous driving occasioning grievous bodily harm offence faces a maximum penalty of imprisonment for 7 years. If a person is convicted of this offence in circumstances of aggravation, the maximum penalty of imprisonment increases to 11 years.

An offence will be aggravated if any of the circumstances below occurred at the time of the impact occasioning death or grievous bodily harm:

    1. The driver was under the influence of alcohol, or
    2. the driver was driving the vehicle at a speed more than 45 kilometers per hour, over the speed limit, or
    3. the driver was driving the vehicle to escape pursuit by a police officer, or
    4. the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug.
Guideline judgment

The Court has undertaken a guideline judgment in R v Whyte (2002) 55 NSWLR 252 which provides that a goal sentence will usually be appropriate unless the driver has a low level of moral culpability, as in the case of momentary inattention or misjudgment.

Where the driver’s moral culpability is high, a full-time goal sentence of may be expected of not less than three years (in the case of death) and two years (in the case of grievous bodily harm).

The Penalties

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