DUI (Driving Under the Influence) in NSW

Charged with Driving Under the Influence (DUI) in NSW? This is one of the most serious drink driving offences in the state — unlike the standard PCA drink driving charges, DUI does not require proof of a specific blood alcohol level. Instead, it criminalises driving while under the influence of alcohol or drugs to such an extent that you are incapable of having proper control of the vehicle. The consequences are severe: up to 18 months imprisonment for a first offence, automatic licence disqualification, and a mandatory alcohol interlock program.

At Barsha Defence Lawyers, we regularly defend DUI charges across Greater Sydney. We appear at Parramatta, Blacktown, Penrith, Windsor, and Downing Centre Local Courts, and we understand the evidence police rely on to establish this charge — including observations of erratic driving, roadside sobriety tests, and witness accounts. This guide explains the offence, the penalties, and your options.

What Is DUI?

DUI is an offence under section 112 of the Road Transport Act 2013 (NSW). A person is guilty if they drive, occupy the driver's seat and attempt to put a vehicle in motion, or supervise a learner driver, while under the influence of alcohol or any drug to such an extent as to be incapable of having proper control of the vehicle.

The critical element is incapacity for proper control. This is a subjective assessment based on observations of the driver's behaviour, manner of driving, physical condition, and ability to respond to instructions.

How Is DUI Different From PCA (Drink Driving)?

DUI and PCA are distinct offences with different elements:

What Evidence Do Police Rely On?

In a DUI prosecution, police typically rely on a combination of the following evidence:

• Observations of erratic, dangerous, or incompetent driving — swerving, running red lights, inability to maintain lane, collisions
• The manner and location in which the vehicle was stopped or found
• Physical observations of the driver — bloodshot eyes, slurred speech, inability to stand, smell of alcohol or drugs, vomit
• Performance on roadside sobriety tests — walk-and-turn test, one-leg stand, finger-to-nose, alphabet recitation
• The driver's demeanour and responses to police questions
• Witness accounts from passengers, other drivers, or bystanders
• Any available breath or blood test results (though not required)
• Body-worn camera footage showing the driver's condition and behaviour

Penalties for DUI in NSW

DUI carries the same serious penalties as High Range PCA drink driving:

Can You Avoid a Conviction?

A Section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999 — where the court finds you guilty but records no conviction and imposes no disqualification — is very difficult to achieve for DUI. Courts treat DUI as a serious offence akin to High Range PCA, and non-conviction outcomes are rare.

That said, skilled representation can make a significant difference to the length of the disqualification period imposed and whether imprisonment is ordered. For a first offence, avoiding imprisonment and achieving the minimum disqualification period are realistic goals with the right case preparation.

Defences to DUI

DUI charges are defensible in appropriate cases. Before deciding how to plead, always have the prosecution brief reviewed by a lawyer. Our approach to contesting charges is explained on our website.

You Were Not Incapable of Proper Control

The prosecution must prove beyond reasonable doubt that you were incapable of having proper control of the vehicle — not merely that you had consumed alcohol or were driving poorly. Evidence of competent responses to police instructions, coherent speech, successful completion of sobriety tests, or the absence of any dangerous driving can all support this defence.

Police Observations Were Unreliable or Exaggerated

Body-worn camera footage and independent witness accounts can sometimes contradict police assertions about your level of impairment. Where footage shows you walking steadily, speaking clearly, and responding appropriately, it may undermine the prosecution case even where police statements assert severe intoxication.

Medical Condition or Fatigue

Certain medical conditions — including neurological disorders, diabetes, or inner ear problems — can produce symptoms that mimic intoxication, including unsteadiness, slurred speech, and poor coordination. If police mistook a medical episode for intoxication, this can be a complete defence to the charge.

You Were Not Driving

If the prosecution cannot prove beyond reasonable doubt that you were the person driving or attempting to drive the vehicle, you are entitled to an acquittal. This most commonly arises where a vehicle is found stationary and the driver has left the scene.

What Courts Consider at Sentencing

If pleading guilty or found guilty, sentencing will depend on:

• The severity of the impairment and the danger posed to others
• The manner of driving and any consequences (accidents, injuries, property damage)
• Whether you cooperated with police or refused testing
• Your traffic and criminal history
• Your personal circumstances — employment, family, medical issues
• Whether you have engaged in rehabilitation such as alcohol counselling
• Your level of remorse and insight
• The quality of your character evidence

What Barsha Defence Lawyers Will Do

When you retain us on a DUI matter:

• Obtain the full police brief including body-worn camera footage, witness statements, sobriety test observations, and ERISP interview
• Review the evidence for factual disputes, medical explanations, or exaggerated police observations
• Advise honestly on prospects at hearing and at sentencing
• Build the strongest sentencing case — character references, employment letters, alcohol counselling, medical reports
• Coordinate with licence appeal applications where appropriate
• Appear at Parramatta, Blacktown, Penrith, Windsor, Downing Centre and other NSW Local Courts — see courts we attend

Frequently Asked Questions

What if I refused the breath test?

Refusing a breath test is itself a separate offence carrying the same penalties as High Range PCA. If you were also charged with DUI, both charges will be dealt with together. Refusal does not prevent a DUI charge — police can rely entirely on observations of your driving and behaviour.

Can I be charged with both DUI and PCA?

Yes. It is common to be charged with both offences arising from the same incident — for example, where a breath test reading was obtained and police also formed the view that you were incapable of proper control. Both charges cannot result in separate convictions for the same conduct, but prosecutors will often proceed on the more serious charge.

What is a roadside sobriety test?

Roadside sobriety tests are physical coordination and cognitive tests administered by police to assess impairment. Common tests include walking in a straight line, standing on one leg, touching your finger to your nose, and reciting the alphabet. These tests are not scientifically validated and performance can be affected by anxiety, medical conditions, footwear, road surface, and other factors. Poor performance is not conclusive proof of intoxication.

Can I challenge body-worn camera footage?

You cannot challenge its admissibility simply because it exists, but footage can work in your favour if it contradicts police statements about your level of impairment. Footage showing steady walking, coherent responses, and successful completion of sobriety tests can undermine the prosecution case.

Will I go to jail for DUI?

For a first offence without aggravating features (no accident, no injury, no children in the car), imprisonment is unlikely but possible. For repeat offenders or cases involving dangerous driving or harm to others, full-time custody becomes a realistic sentencing outcome. Strong legal representation significantly improves your chances of avoiding imprisonment.

Related Traffic Offences

• Drink Driving (PCA)
• Drug Driving
• Dangerous Driving
• Negligent Driving
• Licence Appeals

The information on this page is general and does not constitute legal advice. Every DUI matter is different. Contact Barsha Defence Lawyers for advice tailored to your situation. Liability limited by a scheme approved under Professional Standards Legislation.