Is drink driving in NSW always a criminal offence?

Drink driving offences in NSW are created under the Road Transport Act 2013, which sets out alcohol or other drug related driving offences as statutory criminal offences, with maximum penalties including fines expressed as penalty units and, for some offences, imprisonment.[S1][S3][S4]

Can I go to prison for a drink driving offence in NSW?

Yes. For serious drink driving offences such as driving or attempting to drive while under the influence of alcohol or any other drug, the Act provides maximum penalties of up to 18 months’ imprisonment for a first offence and 2 years’ imprisonment for a second or subsequent offence, alongside substantial fines.[S4]

Will I lose my licence if I am convicted of drink driving?

Conviction for an alcohol or other drug related driving offence commonly results in licence disqualification under the penalties and sanctions framework in the Road Transport Act 2013 and related amending legislation, though the length and conditions depend on the specific offence, prior record and statutory rules.[S1][S2][S5]

Do I have to go to the Local Court for a drink driving charge?

Most drink driving matters in NSW are commenced by court attendance notice and heard in the Local Court, which has jurisdiction to determine offences under Part 5.1 of the Road Transport Act 2013 and to impose the statutory penalties, including fines, disqualification and, where applicable, imprisonment.[S1][S4]

Why should I see a criminal solicitor after a drink driving charge?

Because the Road Transport Act 2013 contains a detailed regime of alcohol and other drug related driving offences, with differing maximum penalties and licence consequences depending on driver category and prior record, an experienced criminal solicitor can explain the charge, advise on plea, and help you present your case within that statutory framework.[S1][S3][S5]

What happens after a drink driving charge in NSW: court process, penalties and your next steps

If you’ve been charged with drink driving in NSW, you will usually face court and potentially lose your licence. This guide explains the process, penalties and how a criminal solicitor can help protect your position.

If you are charged with drink driving in New South Wales, you are facing an alcohol or other drug related driving offence under the Road Transport Act 2013 (NSW).[S1] What happens in the weeks and months after the charge will determine whether you keep your licence, receive a conviction, or even face a term of imprisonment in serious cases.[S2]

The legal basis for drink driving charges in NSW

Drink driving offences in NSW sit within Part 5.1 – Alcohol and other drug use of the Road Transport Act 2013.[S1] This Part defines alcohol or other drug related driving offence as one that involves the presence of alcohol in a person’s breath or blood, or the presence of a drug in oral fluid, blood or urine, and is prescribed by the statutory rules.[S1]

Key offences include:

Presence of prescribed concentration of alcohol in a person's breath or blood (PCA), in varying ranges such as novice, special and others, with maximum penalties expressed in penalty units and, for repeat offences, possible imprisonment.[S3]
Use or attempted use of a vehicle under the influence of alcohol or any other drug, which carries higher maximum penalties than lower-range PCA offences and is treated as a serious safety risk.[S4]

The Act is explicit that these offences apply both to driving and to occupying the driver’s seat and attempting to put the vehicle in motion.[S4]

What happens immediately after you are charged

After police allege that you have driven with an unlawful alcohol concentration or while under the influence, you will ordinarily receive a court attendance notice for an offence under Part 5.1 of the Road Transport Act 2013.[S1][S4] The notice sets out the charge, the date and time you must appear in the Local Court, and a brief description of the alleged conduct.[S4]

For many alcohol offences, police may also issue an immediate licence suspension, meaning you are not permitted to drive from that point until the matter is determined or the suspension is otherwise lifted.[S1] The suspension regime is part of the broader system of penalties and sanctions contemplated by the Road Transport Act and associated amending legislation.[S5]

The Local Court process: from first appearance to sentence

First court date

Most drink driving matters in NSW are dealt with in the Local Court, which has jurisdiction to determine offences under the Road Transport Act 2013 and to impose the statutory penalties.[S1] On your first appearance, the court will ask whether you plead guilty or not guilty to the charge set out in the court attendance notice.[S4]

If you plead guilty, the matter may proceed directly to sentence or be adjourned to allow you or your solicitor to prepare material such as character references, a traffic history analysis and evidence of rehabilitation steps.[S4]

If you plead not guilty, the court will usually make directions for the service of the police brief and list the matter for a defended hearing on a later date.[S4] At that hearing, the prosecution must prove each element of the offence beyond reasonable doubt, including that you were driving or attempting to drive and that the relevant alcohol concentration or level of influence existed at the time.[S4]

How the offence is proved

For under the influence charges, the Act makes clear that the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of a drug or a combination of drugs described in the court attendance notice.[S4] The legislation specifically notes that the court attendance notice may allege more than one drug, and this does not invalidate the notice for uncertainty or duplicity.[S4]

For PCA offences, concentration of alcohol in breath or blood is measured in accordance with procedures recognised by the Road Transport Act, including measurement provisions cross‑referenced in the Road Transport Legislation (Repeal and Amendment) Act.[S5]

Penalties and licence disqualification risks

Fines and imprisonment

The Road Transport Act 2013 sets maximum penalties for drink driving in terms of penalty units and, for more serious or repeat offences, imprisonment.[S3][S4] For example, novice range prescribed concentration of alcohol offences carry a maximum of 20 penalty units for a first offence and 30 penalty units for subsequent offences.[S3] Under the use or attempted use of a vehicle under the influence provision, the maximum penalty is 30 penalty units or 18 months’ imprisonment for a first offence, and 50 penalty units or 2 years’ imprisonment for a second or subsequent offence.[S4]

While these are maximums, they demonstrate that the legislature regards alcohol and drug driving as serious criminal behaviour, particularly where there is repeat offending or a high level of impairment.[S3][S4]

Licence disqualification and other sanctions

Conviction for an alcohol or other drug related driving offence will often lead to licence disqualification, either at mandatory minimum levels set out in statutory rules or at the discretion of the court applying the Road Transport Act framework.[S1] The Act and associated amending legislation are structured to allow courts to impose both primary penalties (such as fines or imprisonment) and ancillary sanctions like disqualification and, where applicable, participation in interlock or rehabilitation schemes.[S5]

For novice and other categories of prescribed concentration of alcohol, the maximum penalties in the Act sit alongside a broader penalties and sanctions regime introduced by the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 and later amendments, underscoring that a conviction will almost always have licensing consequences.[S2][S5]

How early advice from a criminal solicitor can help

The legislative landscape for drink and drug driving in NSW is detailed and has been regularly amended, including by the Road Transport Legislation Amendment (Drink and Drug Driving Offence) Act 2021 and other penalty‑focused amendments.[S2] Navigating this regime without guidance carries real risk, particularly where you have prior offences, hold a professional licence, or drive for work.

A criminal defence solicitor can:

Explain the specific charge under Part 5.1 that you are facing and the statutory maximum penalty and typical sentencing range.[S1][S3]
Assess whether there are issues with the measurement of alcohol concentration or proof that you were under the influence, by reference to the measurement provisions and evidentiary requirements contemplated by the legislation.[S5]
Advise on whether a guilty plea at an early stage is appropriate and help you prepare material to demonstrate remorse, rehabilitation and steps taken to address alcohol use.
Make submissions on licence disqualification, arguing for the minimum period permitted by law or, in appropriate cases, for the court to exercise any available discretion favourably within the statutory framework.[S1]

Because the Act recognises different categories of drivers (including novice drivers, provisional, learner and unrestricted licence holders) and prescribes differing maximum penalties and ranges, tailored advice is crucial.[S3]

Appeals and higher‑court oversight

Drink driving matters determined in the Local Court may be appealed to higher courts in certain circumstances, for example by way of an appeal against conviction or sentence to a superior State court with jurisdiction to review Local Court decisions.[S1] The Federal Court of Australia, whose jurisdiction is described in Commonwealth materials, is not the primary forum for state drink driving prosecutions or routine criminal appeals from NSW Local Courts.[S6] Its role is instead focused on matters arising under federal law and specific areas of jurisdiction.

Understanding the correct appellate pathway is important where a sentencing outcome exposes you to significant disqualification or a term of imprisonment. A criminal solicitor familiar with NSW appellate practice can advise on strict time limits and prospects of success, taking into account the statutory maximums and sentencing principles applied to alcohol and other drug related driving offences.[S1]

Practical next steps if you have been charged

If you have recently been charged with drink driving in NSW, the following sequence reflects how the law and process generally operate under the Road Transport Act 2013:

1. Read the court attendance notice carefully. It will identify whether you are charged with a PCA offence, an under the influence offence, or a related provision under Part 5.1.[S1][S4]

2. Check any licence suspension and comply strictly. Driving while suspended can lead to further charges and compound the penalties you face under the Act.[S1]

3. Seek prompt legal advice. Given the range of penalties, from fines and disqualification through to possible imprisonment for serious or repeat offences, early advice helps you understand realistic outcomes and prepare appropriately.[S3][S4]

4. Consider your plea in light of the evidence. The prosecution must establish the elements set out in the relevant section, and in some cases there may be scope to challenge the reliability of evidence or the characterisation of your conduct.[S4]

5. Prepare for sentencing if pleading guilty or found guilty. Gather references, consider any counselling or rehabilitation programs, and be ready to explain to the court how you will avoid re‑offending, within the penalty framework defined by the legislation.[S3][S5]

Drink driving law in NSW is set out in detailed statutory provisions that treat alcohol and drug driving as serious criminal behaviour, with structured penalties and sanctions designed to deter and punish unsafe driving.[S1][S3][S4] Understanding that framework—and engaging an experienced criminal solicitor early—can make a material difference to how your case proceeds and the impact it has on your licence, record and future.[S2]