Drink driving in NSW: the ranges, the breath test, and the licence.

The offence in short.

In NSW the charge people call drink driving is a prescribed concentration of alcohol offence, or PCA, under section 110 of the Road Transport Act 2013 (NSW). The prosecution does not have to prove bad driving. It only has to prove that you drove, or occupied the driver's seat and tried to start the car, while your blood or breath alcohol was in one of the prescribed ranges. The reading is the offence.

That is different from driving under the influence, the old DUI charge, which turns on your actual impairment rather than a number. Most matters now run as PCA offences because the reading is simpler to prove. What follows sets out the ranges, the penalties, and the parts of the process where good advice makes the most difference.

The figures below are the current maximums and the standard disqualification periods. A court rarely imposes the maximum. Penalty amounts are set in penalty units, and one NSW penalty unit is $110. Check your own reading and your own history against the NSW Government penalty table before you assume where you sit.

What are the drink driving ranges in NSW?

Section 110 sets five ranges. The range you fall in decides how serious the charge is.

Novice range is any reading above zero for a learner or provisional driver. Those drivers must have no alcohol at all. Special range is 0.02 to below 0.05, and it applies to special-category drivers, such as taxi, bus, hire-car and heavy-vehicle drivers, and drivers of vehicles carrying dangerous goods. Low range is 0.05 to below 0.08. Mid range is 0.08 to below 0.15. High range is 0.15 and above.

The reading that counts is the one taken at the police station on the breath analysis machine, not the roadside screening test. The roadside device only tells the officer whether to require you to come in for the real analysis. There is a two-hour rule as well. Police cannot require a breath analysis more than two hours after you last drove, which occasionally matters where there is a delay between the driving and the test.

Will I lose my licence for a first drink driving offence?

If you are convicted, almost always yes. Each range carries an automatic disqualification, which the court can cut down to a minimum period. For a first low range offence, the automatic disqualification is 6 months and the court can reduce it to 3. Low range can also be dealt with by a penalty notice, a fine of about $603 and a three-month suspension, without going to court at all, though you can choose to fight it in court instead.

For a first mid range offence the maximum penalty is 9 months imprisonment and a fine of 20 penalty units, which is $2,200. For a first high range offence the maximum is 18 months and a fine of 30 penalty units, which is $3,300. High range and mid range both bring disqualification, and both bring the interlock program described below. A second offence in any range doubles much of this. A second high range offence carries up to 2 years and a fine of 50 penalty units, which is $5,500.

Losing a licence is often the part of a drink-driving charge that hurts most, because it reaches work, family and everything in between. It also creates a second trap. Driving during a disqualification is a separate criminal offence in its own right, which we set out in our note on driving while disqualified in NSW. The safe rule is simple. Once you are off the road, stay off it until the period ends and your licence is restored.

Do you go to jail for mid range or high range drink driving?

Prison is a possible penalty, not the usual one. For a first offender of prior good character who pleads guilty, a full-time custodial sentence for a PCA charge is uncommon, even at high range. The realistic outcomes are a fine, a conviction, disqualification and an interlock. Where a case is worse, because of a very high reading, a poor record, or an accident, the court can move to a community-based sentence, such as an intensive correction order, which is served in the community with conditions rather than in gaol.

The things that move the result are the reading, the reason for driving, the driving itself, your record, and what you can show the court about your character and steps taken since. A guilty plea also attracts a sentencing discount, larger the earlier it is entered, which we explain in our note on the early guilty plea discount. Good preparation of the subjective case is often worth more than any argument about the reading.

Can you refuse a breath test in NSW?

No. There is no right to refuse, and wanting to ring a lawyer first is not an excuse. The law draws a line between two things. Refusing the roadside screening test is a lesser offence, with a maximum fine of 10 penalty units, about $1,100, and no automatic disqualification. Refusing or failing to provide the breath analysis at the station is a serious offence, and it is punished at the same level as high range PCA. That means a first offence carries up to 18 months imprisonment, a fine of up to $3,300, and an automatic 3-year disqualification.

The reason the station offence is treated so seriously is obvious. If refusing carried a lighter penalty than a high reading, every heavily affected driver would refuse. The law closes that gap. The only defence recognised for the station offence is a genuine medical inability to provide the sample, which has to be proved, not merely asserted. Refusing to answer police questions is a different thing again, and is often sensible; the recorded interview is explained in our guide on the ERISP interview. Refusing the breath analysis itself is not the same as staying silent, and it carries its own charge.

What happens if you swap seats before a random breath test?

This is the scenario driving much of this week's interest, so it is worth setting out plainly. Police can require a breath test from any person they reasonably believe was driving, or was occupying the driver's seat and attempting to start the vehicle. The power does not depend on catching you mid-drive. If officers see you move out of the driver's seat as they approach, that conduct itself can give them the reasonable belief they need, and they can still require the test.

Swapping seats does not defeat a drink-driving charge, and it can add to it. It is a separate offence to wilfully do anything to alter the amount of alcohol in your system, or to avoid providing a proper sample, so as to defeat the analysis. Beyond that, a seat swap can support charges for the driving that police can still prove by other evidence, and it feeds directly into sentencing, because trying to dodge the test reads as a lack of remorse and an attempt to escape responsibility. It rarely helps and it often hurts.

The wider point is about how police prove who was driving. A charge does not fall over simply because no officer saw you at the wheel. Admissions, CCTV, a warm engine, the position of the keys, and the accounts of passengers can all establish it. The police stop-and-test power is part of a broader set of roadside powers, which we cover in our note on when NSW police can stop and search you.

What is the mandatory alcohol interlock program?

The interlock program, under section 211 of the Road Transport Act 2013 (NSW), requires an offender to fit a device to any car they drive. The device tests the driver's breath and will not let the car start unless it reads zero. The program is mandatory for mid range and high range offences, for refusing a breath analysis, and for a second drink-driving offence in any range.

When the program applies, the court sets a shorter disqualification followed by an interlock period, which runs from 12 months to 48 months depending on the offence. You serve the disqualification first, with no driving at all, then you apply for an interlock licence and drive with the device fitted for the balance. A driver can ask the court for an exemption, but only on limited grounds, such as no access to a vehicle or a medical condition. Declining the program without an exemption means a much longer straight disqualification instead, which is usually the worse outcome.

Can you avoid a conviction for drink driving?

Sometimes, and it is the outcome most first offenders ask about. A court can find the charge proven but decline to record a conviction. It can dismiss the matter under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or make a conditional release order without conviction, which is a good-behaviour bond of up to two years. If the court takes that path, no conviction is recorded and the automatic disqualification does not apply, so you keep your licence. Our note on the section 10 non-conviction order sets out how it works and what a court looks for.

A non-conviction order is discretionary, not a right. It is more realistic for a first low, special or novice range matter with strong material about the person and the reasons, and much harder at high range. That last point has a formal source. In Application by the Attorney General under Section 37 (No 3 of 2002) [2004] NSWCCA 303, reported at (2004) 61 NSWLR 305, the Court of Criminal Appeal handed down a guideline judgment for high range PCA. It was designed in part to stop the over-use of non-conviction orders for high readings, and it describes what an ordinary high range case looks like, being a driver of prior good character, detected by random breath test, who pleads guilty. You can read the guideline on JADE. The message from it is that at high range the court starts from the position that a conviction and disqualification are the norm.

What this means if you are charged.

A drink-driving charge is not the end of the matter, and it is not always a straight plea of guilty. There are real defences in some cases. The reading can be challenged where the analysis was taken outside the two-hour window, where the driving was not on a road or road-related area, or where identity or who was driving is genuinely in issue. The reliability of the machine and the procedure followed can matter. These are narrow points, but they are real ones, and they are worth checking before anyone pleads.

Where the charge is proven, the work shifts to the result. The difference between a conviction with a long disqualification and a non-conviction order that saves the licence often comes down to preparation, the plea being entered at the right time, and the material put before the court. If you have been charged, or you have blown over and been told you will be, get advice early, before the first court date. To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

Frequently asked.

What are the drink driving ranges in NSW?

NSW sets five prescribed concentration of alcohol ranges under section 110 of the Road Transport Act 2013 (NSW). Novice range is any reading above zero for a learner or provisional driver. Special range is 0.02 to below 0.05 for special-category drivers, such as taxi and heavy-vehicle drivers. Low range is 0.05 to below 0.08. Mid range is 0.08 to below 0.15. High range is 0.15 and above. The higher the range, the more serious the offence and the longer the disqualification.

Will I lose my licence for a first drink driving offence in NSW?

Usually yes, if you are convicted. Each PCA range carries an automatic disqualification that the court can reduce to a minimum. For low range, the automatic period is 6 months and the minimum is 3. For mid and high range, disqualification is combined with a mandatory alcohol interlock period. The main way to keep your licence is a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999, which removes the automatic disqualification, but that is a matter for the court's discretion.

Do you go to jail for mid range or high range drink driving?

Prison is a possible penalty, not an automatic one. A first mid range offence carries a maximum of 9 months imprisonment. A first high range offence carries a maximum of 18 months, and a second carries up to 2 years. For a first offence with good character and a guilty plea, a full-time custodial sentence is uncommon. The realistic penalties are a fine, a conviction, disqualification, an interlock, and in more serious cases a community-based order such as an intensive correction order.

Can you refuse a breath test in NSW?

No. Refusing a roadside breath test is an offence carrying a fine of up to 10 penalty units. Refusing or failing to provide a breath analysis at a police station is far more serious and is punished at the same level as high range PCA: up to 18 months imprisonment and an automatic 3-year disqualification for a first offence. The only recognised defence is a genuine medical inability to provide the sample.

What is the mandatory alcohol interlock program in NSW?

The interlock program under section 211 of the Road Transport Act 2013 (NSW) requires an offender to install a device that stops the car starting unless it detects no alcohol. It is mandatory for mid range and high range offences and for refusing a breath analysis, as well as for a second drink-driving offence in any range. The court sets a shorter disqualification followed by an interlock period of 12 to 48 months. Declining the program means a much longer straight disqualification instead.

Can you avoid a conviction for drink driving in NSW?

Sometimes. A court can find the offence proven but decline to record a conviction, either by dismissing the matter under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or by making a conditional release order without conviction. If it does, no conviction is recorded and the automatic licence disqualification does not apply. Non-conviction orders are more common for lower-range first offences with strong subjective material, and much harder to obtain for high range, where a guideline judgment discourages them.

Primary sources: the offences and ranges are in section 110 of the Road Transport Act 2013 (NSW), with breath testing and analysis powers in Schedule 3 and the interlock program in section 211. Current penalties and disqualification periods are set out on the NSW Government drink and drug driving penalties page. The high range guideline is Application by the Attorney General under Section 37 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 on JADE. Sentencing guidance is in the Judicial Commission's road transport legislation benchbook.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 19 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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