Following recent events over the weekend involving a prominent local, there has been much discussion and speculation surrounding civic office and drink driving offences.  There has also been inaccurate reporting regarding offences and penalties.  So here is what you need to know about the law:

Low Range Prescribed Concentration of Alcohol

A Low Range Prescribed Concentration of Alcohol offence (PCA) results from a roadside breath test and subsequent breath analysis.  The low range requires the analysis to show an alcohol concentration of 0.05 or more but less than 0.08 grams, in 210 litres of breath of 100 millilitres of blood.

The offence will see the issue of a court attendance notice to be listed before the local court nearest to where the offence is alleged to have occurred. Your licence will not be suspended by police on the spot for a low range PCA (but it be will for a Middle or High Range offence).

A low range PCA carries an automatic disqualification period of 6 months, but the Court can reduce the period to not less than 3 months.  There is also a fine of up to $1100 for a first offence. For a second offence the automatic disqualification period is 12 months, which can be reduced to 6 months.

Although it may be referred to as a drink driving offence, PCA offences are different to the offence of driving under the influence of alcohol. For a PCA offence the certificate of the breath analysis is evidence of the offence, which is easier to prove than driving under the influence, which may be open to challenge.

What Can the Court Do?

In all cases the Court does have discretion to deal with matters without a conviction.  If this occurs no disqualification period will apply.  S.10 of the Crimes (Sentencing Procedure) Act provides that Court may find a person guilty of an offence but without proceeding to a conviction, may dismiss the charge or order that they enter into a good behaviour bond.

In deciding whether to take such action the Court must consider the person's age, character, health and any prior record.  The Court must also consider the nature of the offence, any extenuating circumstances and any other matter "the court thinks proper".

For a Low Range PCA, a person who has been driving for a lengthy period of time, with no recent traffic offences and who is of otherwise good character would be a candidate for having their charge dismissed under s.10.

Eligibility to be a Councillor

Councillors must not be disqualified from holding civic office if they seek to be elected and remain as Councillors in Local Government.

The relevant part of s.275 of the Local Government Act provides that:

A person is disqualified from holding civic office:

(e) if he or she is while holding that office, or has been within 7 years before nomination for election, election or appointment to the office, convicted in New South Wales of an offence that is punishable by imprisonment for 5 years or more, or convicted in another State or Territory, or under a law of the Commonwealth, of an offence that, if committed in New South Wales, would be an offence so punishable,

The offence of driving with Low Range Prescribed Concentration of Alcohol does not carry a sentence of imprisonment, and as such, it would not disqualify a person convicted of such an offence from seeking election or remaining as a Councillor.

Summary

We'll leave the debate about recent events to local media and social media, and hopefully such commentary will accurately reflect the law on these issues. 

Angus Edwards | Principal | Kenny Spring Solicitors

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