Low-Range Drink Driving (Low-Range PCA)

About low-range PCA in NSW

Driving with a low-range prescribed concentration of alcohol (PCA) is an offence under section 110(3) of the Road Transport Act 2013 (NSW). The offence is committed when a person drives, or attempts to drive, a motor vehicle on a road with a blood or breath alcohol concentration of 0.05 or more, but less than 0.08.

Low-range PCA is the least serious of the PCA offences in NSW. Unlike mid- and high-range PCA, it is not a “major offence” in the sense of triggering imprisonment exposure — the maximum penalty on a first offence does not include any prison term, and a clean first low-range matter does not trigger a Mandatory Interlock Order. Despite that, a conviction still carries an automatic licence disqualification, a fine of up to $2,200, and the lasting effect of a criminal record.

Maximum penalty for low-range PCA in NSW

The penalties for low-range PCA under section 110(3) are set out in the Road Transport Act 2013 and the NSW Local Court Bench Book — Road Transport Legislation. They are:

First offence

• Maximum fine: 20 penalty units ($2,200)
• Maximum imprisonment: Nil
• Automatic licence disqualification: 6 months (the default)
• Minimum disqualification: 3 months (the lowest the court can reduce it to)
• Mandatory Interlock Order (MIO): Not applicable to a first low-range PCA

Second / subsequent offence

• Maximum fine: 30 penalty units ($3,300)
• Maximum imprisonment: Nil
• Automatic licence disqualification: 12 months
• Minimum disqualification: 6 months
• Mandatory Interlock Order: Applies only where the prior offence was another alcohol-related major offence — in that case, 1 month minimum / 3 months maximum disqualification, followed by a 12-month interlock program

A “second offence” is calculated based on alcohol-related major offences in the previous 5 years — not whether there is any prior PCA history at all.

Can you get a section 10 for low-range PCA in NSW?

Yes — and it is more achievable on a low-range PCA than on mid- or high-range. A low-range reading sits at the lower end of objective seriousness, no imprisonment is available, and the courts have repeatedly accepted that a non-conviction disposition may be appropriate in the right case.

A section 10(1)(a) dismissal or Conditional Release Order without conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999 avoids both a criminal record and the automatic disqualification — the court does not impose a disqualification where no conviction is recorded.

Factors that make a non-conviction outcome more likely on a low-range PCA include:

• A reading at the lower end of the range (closer to 0.05 than 0.08)
• A short distance driven at a low-risk time, no collision, no aggressive or erratic driving
• Detection by random breath test rather than driving complaint or pursuit
• No prior traffic record and no relevant criminal history
• An early guilty plea
• Completion of (or enrolment in) a Traffic Offender Intervention Program (TOIP)
• Genuine insight and remorse — typically demonstrated through a letter of apology and, where appropriate, a psychologist’s report
• A conviction would cause substantial collateral consequences disproportionate to the offending (employment, professional registration, visa or immigration impact)
• Strong character references

Even with the above, a section 10 is discretionary and is never automatic. The strategy needs to be carefully prepared and presented at first mention.

Penalty notice (infringement notice) option

Low-range PCA is one of the few PCA offences for which Penalty Notice Disposal is available. Under the Road Transport Act 2013 and the supporting regulation, police have discretion to issue an infringement notice — an on-the-spot fine — instead of a Court Attendance Notice.

If a penalty notice is issued and paid:

• The fine is paid without attending court
• A 3-month licence suspension applies
• No conviction is recorded against the person’s criminal record

A penalty notice is only available for a first low-range PCA — second and subsequent low-range offences must proceed by Court Attendance Notice. Most low-range PCAs in practice are still charged to court rather than infringed; whether an infringement is issued is at police discretion at the roadside or station.

A person who receives a penalty notice may also court elect — that is, decline the infringement and have the matter heard in the Local Court. A court election is the only way to argue for a section 10 non-conviction outcome, because paying an infringement notice locks in the 3-month suspension. Court election should be considered carefully and only with legal advice — if the court records a conviction, the automatic 6-month disqualification kicks in instead of the 3-month suspension.

Sentencing factors the court will consider

When sentencing for low-range PCA, the magistrate considers:

• The reading — where it falls between 0.05 and 0.08
• The nature and seriousness of the driving (distance, time of day, traffic conditions, manner of driving)
• Whether a collision occurred and any injury or property damage
• How the offence was detected — random breath test vs erratic driving / pursuit
• The accused’s traffic history and any criminal history
• Whether an early guilty plea was entered
• Completion of a Traffic Offender Intervention Program
• The accused’s need for a licence (for employment, family, medical, carer responsibilities)
• Character references and other subjective material
• Steps taken to address alcohol use (counselling, abstinence, support programs)

Section 206B — backdating disqualification

Section 206B of the Road Transport Act 2013 applies where a licence has been suspended under the Act or its regulations for an alleged offence. The court is required to take that period of suspension into account when fixing any disqualification on conviction — in practical terms, the disqualification can be backdated to start from the date of suspension.

This is less commonly engaged in low-range PCA matters than in mid- or high-range, because section 224 of the Act gives police roadside immediate-suspension power for mid- and high-range PCA but not for a typical low-range reading. Where a low-range driver has been suspended pending hearing (eg under separate licence-action provisions), section 206B is the mechanism for crediting that suspension against the final disqualification.

Defences and arguments for low-range PCA

Genuine defences are limited because the offence is largely objective — the reading is what it is — but arguments that may be available include:

• The “two-hour rule” — clause 2(2) of Schedule 3 of the Road Transport Act 2013 provides that a breath analysis must not be conducted more than 2 hours after the relevant driving event; a sample taken outside that window is liable to be excluded
• The “home safely” rule — clause 2(2) of Schedule 3 also provides that police cannot conduct a breath analysis on a person who is at their home; a sample obtained in breach of this is liable to be excluded
• Reading challenge — challenging the breath analysis procedure, calibration of the device, or chain of custody. A 0.05 reading is at the very threshold of the offence and instrument tolerance can be material
• Honest and reasonable mistake of fact about the alcohol concentration — eg the accused genuinely believed sufficient time had passed for the alcohol to clear
• Identity — the accused was not the driver
• The vehicle was not on a “road” or “road-related area” as defined in the Act
• Necessity / duress in narrow circumstances

If a procedural defence (eg breach of the two-hour rule or home safely rule) succeeds and the certificate of analysis is excluded, the prosecution generally cannot prove the reading and the charge fails.

Low-range PCA FAQs

What does PCA stand for?

Prescribed Concentration of Alcohol — the legal definition of blood or breath alcohol concentration in the Road Transport Act 2013.

Will I lose my licence on the spot for a low-range PCA?

Generally no. Section 224 of the Road Transport Act 2013 gives police roadside immediate-suspension power for mid-range and high-range PCA, but not for a typical low-range reading. Police will normally issue either a Court Attendance Notice or a penalty notice, and any licence loss will be the result of either a paid penalty notice (3-month suspension) or a court-imposed disqualification on conviction.

How long is the disqualification for a first low-range PCA in NSW?

The automatic disqualification is 6 months, which the court can reduce to 3 months minimum if persuaded the circumstances warrant it. If the court instead grants a section 10 or non-conviction CRO, no disqualification is imposed. If the matter proceeds by paid penalty notice, the suspension is 3 months.

Do I have to do a Traffic Offender Program?

Not legally — but completing the Traffic Offender Intervention Program (TOIP) before sentencing is one of the most influential things a person facing a low-range PCA can do. It demonstrates insight, addresses the underlying behaviour, and is routinely referred to by the bench when deciding between a section 10 and a conviction, and when fixing any disqualification period.

Can I get an infringement notice instead of going to court?

Sometimes. Police have discretion under the Road Transport Act 2013 to issue a penalty notice for a first low-range PCA in lieu of a Court Attendance Notice. If a penalty notice is issued and paid, a 3-month suspension applies and no conviction is recorded. The trade-off is that paying the notice locks in the suspension — to be eligible for a section 10 non-conviction outcome the matter must be court-elected. Whether to pay or court-elect is a strategic decision and should be made with legal advice.

Is low-range PCA a criminal offence?

Low-range PCA is a summary offence dealt with in the Local Court under section 268 of the Criminal Procedure Act 1986. A conviction is recorded on a person’s criminal record — which is one of the principal reasons a section 10 non-conviction outcome is so often the goal. A paid penalty notice is not a conviction and is not recorded on a criminal record.

Can I be jailed for a low-range PCA?

No. The maximum penalty for low-range PCA under section 110(3) of the Road Transport Act 2013 does not include imprisonment — for either a first or a second offence. The realistic worst case at court is a fine, conviction, and disqualification.

Charged with low-range PCA? Contact us today

Low-range PCA is the least serious of the PCA offences — but it still carries an automatic 6-month disqualification, a fine, and a criminal record on conviction. The right strategy (section 10 court election, TOIP, well-prepared subjective material) can mean the difference between losing your licence and walking out with no conviction. Karnib & Co. acts for low-range PCA matters across NSW from our Liverpool and Wollongong offices.

Contact us for a free initial consultation. We are available 24/7 for urgent matters and licence appeals.