Alcohol Interlock Program – When does it Apply?

The Alcohol Interlock Program is a mandatory program aimed at improving road safety and reducing drink driving in NSW. The Program applies to drivers who have been convicted of high range, repeat and other serious drink driving offences on or after February 1, 2015. The program is designed to help drink drivers separate drinking and driving.

Interlocks are electronic breath testing devices that are linked to the ignition system of cars, motorcycles and heavy vehicles. Drivers must give a breath test, which the interlock analyses for the presence of alcohol before the vehicle will start. If alcohol is detected, the vehicle will not start. Breath tests can also be required at random while you drive. The interlock records all test results as well as any attempts to tamper with the device. NSW program participants must have a zero blood alcohol concentration while driving, meaning they cannot have any alcohol in their system.

If you have been convicted of a high range, repeat or other serious drink driving offence, a court will order you to complete:

  • A licence disqualification periods, and
  • A minimum period of participation in the interlock program

The time periods will increase with the severity of the drink driving offence. The minimum period is 12 months.

The court may grant an exemption from participating in the interlock program, but only in limited circumstances, for example if you do not access to a vehicle, or you have a medical condition.

There are a number of responsibilities when being in the program. Failure to comply can result in consequences such as fines, extensions to interlock licence period, licence suspension or cancellation.

These responsibilities include:

  1. Only drive with a zero blood alcohol concentration
  2. Only drive a vehicle which is fitted with an interlock
  3. Ensure that an interlock is installed in at least one vehicle
  4. Only drive the vehicle if you have personally provided the breath sample required by the interlock
  5. Attend all medical consultations required under the program
  6. Ensure that your interlock is serviced when required under the program
  7. Do not drive any motor vehicle if you know that the interlock is not working properly, or has been circumvented or interfered with
  8. Do not drive a vehicle which is loaded with dangerous goods that must be placard under the Dangerous Goods (Road and Rail Transport) Regulation 2014.

Participation in the program begins when the RMS has issued you with an interlock licence. You need to – complete your disqualification period, visit your doctor and get a medical consultation certificate, and have the device installed in your vehicle.

If you think you might be eligible for the Alcohol Interlock Program, its important to speak to an experienced lawyer as the process can be complicated.

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Caught by Police Sniffer Dogs with Ecstacy Pills at Dance Parties: Know the Law

Sydney’s Parklife, Fat as Butter and V Festival, the Future Music Festival, and the Mardi Gras! These are just some of the famous festivals around Sydney. Unfortunately, these festivals have become infamous for drug use by recreational users of ecstasy.

Ecstasy is a street term for a range of commonly used party drugs. It is a ‘prohibited drug’ under schedule 1 of the definition section of the Drug Misuse and Trafficking Act 1987. A prohibited drug includes heroin, cannabis, methylamphetamine (ice) and cocaine.

How can you get caught?

Major festivals have become a target of police search operations utilizing sniffer dogs. You might also be the subject of the operation at a train station or pubs around Sydney CBD area.

The police must form a reasonable suspicion that you have possession of prohibited drugs to search you. This is likely to happen where a drug detection dog stops next to you, or undercover police see you walking away from them. The police power to search you arises from the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), s21(1)(d) & s36(1)(e).

How serious is the offence?

Possessing a prohibited drug is an offence under the section 10(1) of the Act.  The offence will almost certainly be charged with a criminal prosecution even in relation to small or personal amounts of prohibited drugs.

The charge may result in a conviction with a maximum penalty of a fine of 20 penalty units ($2200) and/or a 2 years’ imprisonment. the conviction may be recorded on your criminal record which may have a devastating impact on your employment in the future.

At a trial

The most contentious issue in a trial would be that a prosecutor must prove beyond reasonable doubt you knew that you possessed a drug.

Further, even If you plead guilty to the offence, your conviction might not be recorded against you. The Court should consider several factors to exercise its discretion.

Advice

How the trial proceeds will depend on the circumstances of an individual case. To raise the best defence or to reduce a penalty to a minimum, it is vital that you have an experienced criminal defence lawyer should you be charged with possession or supply of prohibited drugs or any other drug-related matters.

Greenfield lawyers are specialists in criminal law defence including drug-related matters. Do not hesitate to contact our office on 02 9708 6832 and make an appointment to see one of our expert criminal defence lawyers.

Section 32 Mental Health Orders – when can it apply?

Section 32 of the Mental Health (Forensic Provisions) Act is commonly used to divert those who suffer from mental health issues away from the criminal justice system and instead into treatment and getting the help they need. They are intended for the purpose of rehabilitation and reducing reoffending of people with a mental health condition.

Mental health conditions can include a variety of different issues including anxiety, depression, substance abuse disorder, bipolar disorder, schizophrenia and personality disorders. The Act gives a broad definition of what is considered a mental health condition, that is, a mental health problem that can be treated by a psychologist or through counselling.

A section 32 may apply where a person who has a mental health condition at the time of the alleged offence occurring, or can be shown to suffer from an ongoing issue during the court proceedings.

To apply for a section 32, a report from a mental health professional such a psychologist is needed. A lawyer can assist arrange this by providing them with relevant information for preparing the report.

To be granted a section 32 order, the magistrate will need to make a decision that the section 32 order is more appropriate than the criminal justice system.

If you are granted a section 32 you will be required to abide by conditions made by the magistrate, which are tailored to your circumstances and last up to six months.

These conditions may include:

  • Abstaining from drugs and/or alcohol and consent to testing
  • Participate in counselling sessions
  • Prescribed Medication
  • Have the condition and associated medication reviewed regularly
  • Remaining in the care of a responsible person, and/or residing at a specific address

If you don’t abide by the conditions made by the Magistrate, the section 32 could be revoked and you will have to face the original charges in court

The magistrate may dismiss the charged altogether if you agree to participate in the treatment plan. Alternatively they may adjourn court proceedings until treatment is complete, or if in custody, bail may be granted to participate in treatment.

The benefit of a section 32 over a section 10 dismissal is that you are not found guilty or convicted, whereas with a section 10 there is still a finding of guilt.

If you think you might be eligible for a section 32 Mental Health Order, its important to speak to an experienced criminal lawyer as the process can be complicated.

For further information and legal advice, Call Us now on 02 9708 6832 and book an initial consultation with one of our criminal lawyers.

Victims Rights in Domestic Violence Offences – When Can the Police withdraw Charges?

Domestic violence has become a serious and widespread issue in Australia. Because of this, having  Domestic Violence charges or an AVO withdrawn is not easy and very few are withdrawn by NSW Police.

Once it is alleged that an act of domestic violence has been committed, and a complaint is made to the Police, it is Police procedure to lay charge/s upon the accused person/s.

While Police can withdraw charges, it rarely occurs as they are determined for alleged domestic violence offenders to be held accountable for their actions. This means that almost all charges are proceeded with. Generally Police will not withdraw a domestic violence charge merely because the alleged victim does not want the offender to be charged.

For Police to consider withdrawing a charge an application should be made in writing to the Police Local Area Command.

If a victim wishes to withdraw their complaint, NSW police have a policy that requires them to proceed with the charges. Charges may be laid against offenders even if the victim is reluctant to give evidence. The decision to prosecute rest with the Police in accordance to their internal policies.

There are laws that restrict the prosecution’s ability to force family members to give evidence. Under section 18 of the Evidence Act (NSW) 1995, a witness may object to giving evidence, if:

  • They are a witness for the prosecution, and
  • The accused person is their spouse, de facto partner, child or parent, and
  • There is likely to be harm caused to their relationship with the defendant.

This section however, does not apply to all situations and the court can force a person to give evidence.

If a victim in a domestic violence case does not appear at court a number of things may occur, including:

  • The charges are dismissed
  • The case is adjourned and a warrant for the arrest of the victim is issued
  • The case is adjourned to see if the police can get the victim to court

For further information and legal advice, Call Us now on 02 9708 6832 and book an initial consultation with one of our criminal lawyers.

 

 

How to Avoid a Criminal Conviction – Section 10

If you are found to be guilty of any criminal or traffic offence, a court generally imposes a penalty on you and you will consequently have a criminal record if the court records a conviction. This criminal record can have a negative impact on your employment and travel overseas as you are frequently obliged to disclose your convictions to many entities.

However, criminal courts in NSW have a discretion to dismiss a charge without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999.

 

What is a ‘Section 10’ Order?

A ‘Section 10’ order refers to a court order made under section 10 of the Crimes (Sentencing Procedure) Act 1999. These orders allow a Court to find you guilty of an offence, but to still discharge you without recording a conviction. This means there is no criminal record, loss of driver’s license or other penalty.

 

Types of Section 10 Orders

Under s 10, the court can make three types of orders as follow:

  • Outright Dismissal

This involves the court completely dismissing the offence without any conditions imposed

  • Dismissal with a good behavior bond

Although the court can dismiss your charge, a good behavior bond for a maximum of 2 years may be imposed on you. If you breach any of the conditions of the bond, the court can impose a different sentence because the original matter will return to Court for re-sentencing upon your breach.

  • Dismissal with an intervention program

The Court can discharge you on condition that you finish an intervention/rehabilitation program and comply with plans arising from it, like the Traffic Offenders Intervention Program.

 

How can I get a Section 10 Order?

Courts do not readily grant section 10 orders, and require a lot of convincing before granting them. Courts consider the following issues when evaluating whether to grant these orders:

  • Age;
  • Character;
  • Criminal history;
  • Health and mental condition;
  • The nature of the offence i.e. how trivial/serious it is;
  • Any extenuating circumstances surrounding the offence; and
  • Anything else the Magistrate/Judge deems relevant.

 

The main benefit of section 10 is that no conviction will be on your criminal record. Despite this benefit, Section 10 orders are not easy to obtain, and it is possible that you might need to comply with additional restrictions like the good behavior bond even if you get a s 10 order. However, s 10 orders still remain useful since it gives you a chance of keeping your criminal and traffic records clean. Therefore, it is imperative for you to hire an experienced lawyer in order to convince the court to grant a Section 10 order.

HOW TO PICK A TOP CRIMINAL DEFENCE LAWYER

If you have been charged with a criminal or traffic offence and your livelihood, reputation and liberty are at risk, its ABSOLUTELY ESSENTIAL that you look for the following TOP 2 TRAITS in a criminal lawyer before hiring them:-
Success Win Rate – Many lawyers will tell you each case is dependent on its own specific facts etc, however a lawyer who cannot tell you their average win rate is a lawyer who probably does not conduct a lot of defended trials and is inexperienced.
Strategy & Negotiation – This really separates the top criminal lawyers from the mediocre ones. Most criminal lawyers will be able to advise you about the law relating to your case (eg maximum penalty, likely sentence, defences available etc).
This ‘informational’ advice is cheap as chips as with all information these days it can be found with some research on google.
The mark of a top criminal lawyer is what defence strategies they will devise in your case to get the Police Prosecution to withdraw the charges against you (eg if there is lack evidence for a prima facie case or the witness/complainant will be difficult or a no show at court) OR win the case at a defended trial OR if you are pleading guilty, what legal negotiations they will implement to amend the Police Facts to reflect your version of what happened, and/or reduce the current charges to a less serious charge.
Do not make the mistake of hiring  a ‘jack of all trades, master of none” inexperienced lawyer who does not specialise in the area of criminal law.   It will be a costly and soul destroying exercise.
Experience Counts for Everything.

Domestic Apprehended Violence Orders

Domestic violence has become a serious and widespread issue in Australia. It takes place when someone who has a close personal relationship makes another feel afraid, unsafe or powerless. Domestic violence can be physical, but also can be psychological and emotional.

In NSW, the NSW Crimes (Domestic and Personal Violence) Act 2007 is the principal legislation in relation to Apprehended Domestic Violence Orders(‘ADVOs’) in the domestic violence context, and to domestic violence specified offences.

ADVO offences

ADVO offences include various forms of personal violence, including physical, sexual, psychological, and emotional abuse. It also includes behaviour that is controlling, dominating, threatening, intimidating and stalking.

In this context, intimidation means the following conduct:

  • Harassment or molestation of another person;
  • Approaching someone using any method that causes a person to fear for their safety, including through the use of technological devices such as cellphones; or
  • Conduct causing apprehension of injury to a person or damage of their property.

Stalking means the following conduct:

  • Watching someone or following them; or
  • Frequently being near their location (e.g. home, business, workplace, social/leisure spots frequented by the protected person).

Examples of domestic violence are controlling a family member’s finances, depriving them of their liberty, damaging their property, and physically abusing them by slapping, kicking, or punching.

It should be also noted that contravening an ADVO itself is also a personal violence offence. Thus, if a person breaches any of the prohibitions of an ADVO, he or she can be guilty of an offence that can attract a maximum of 2 years imprisonment, a $5,500 fine, or both.

What relationships are covered?

ADVOs are only made when the protected person is or used to be in a ‘domestic relationship’ with the defendant. These include the following relationships:

  • Marriage
  • De facto relationships
  • Intimate personal relationships (regardless of whether a sexual relationship is involved)
  • Relationships between persons living in the same household
  • Relationships between residents of residential facilities
  • Relationships where the protected person depends on the ongoing paid/unpaid care of the defendant
  • Relationships between relatives; and
  • For Aboriginal persons or Torres Strait Islanders, extended family/kinship relationships.

 When can the court grant ADVOs?

Upon application, a court can make an ADVO if it is satisfied that the person who is/was in a domestic relationship with the defendant has reasonable grounds to fear, and actually fears:

  • That the defendant will commit a ‘personal violence offence’ against the protected person; or
  • That the defendant will intimidate or stalk the protected person.

In some situations, being actually afraid of these events is not necessary. This will apply when the protected person is under 16 years of age, or if the court believes that the protected person has already been or will likely become a victim of a ‘personal violence offence’.

Although the court needs to make some considerations before granting an ADVO, the overriding concern it will have is for the safety and protection of the protected person, and any child directly affected by the defendant’s offending conduct.

The court can also impose additional prohibitions on the defendant that it thinks necessary or desirable to safeguard the protected person. For example, this could include prohibitions on:

  • Approaching the protected person
  • Approaching the protected person within 12 hours of consuming drugs or alcohol
  • Possessing firearms
  • Accessing the protected person’s workplace, residence etc.
  • Interfering with the protected person’s property.

Automatic Final and Interim ADVOs

In special situations, a court will automatically make a final ADVO. This must occur when the defendant pleads guilty or is found guilty of the following offences:

  • Stalking or intimidating; or
  • A domestic violence offence.

Even if the defendant hasn’t been found guilty yet, an interim ADVO can still be automatically made if the defendant has been charged with a ‘serious offence’. ‘Serious offences’ include:

  • Stalking or intimidating
  • Attempted murder
  • Domestic violence offences.

It should be noted that orders relating to domestic violence in any Australian states or territories which are issued from 25th of November 2017 will be automatically recognized and enforceable throughout the nation.

The offence of Breach AVO can be found in section 14 of the Crimes (Domestic and Personal Violence) Act 2007 NSW.

Section 14 states that “ A person who knowingly contravenes a prohibition or restriction specified in an Apprehended Violence Order against the person is guilty of an offence”

A breach of an Apprehend Violence Order commonly known as AVO is a criminal offence. A person who has an AVO against him/her is not guilty of a criminal offence and the AVO will not appear on his or her criminal record.

Breaching an AVO carries a maximum penalty of two years imprisonment and/or a fine of $5,500. Commonly a charge of a breach of an AVO is not enough for a court to impose a maximum full term imprisonment. However, if an AVO is breached with an act of violence or if you have a history of domestic violence offences, the court will carefully consider whether a jail term should be served.

Typically when an AVO is issued against a person, a copy of the order is served on him or her. The order will outline the conditions (DO NOT DO) of the order. A person who has not been served with a copy of the order is not guilty of breaching an AVO.

To be convicted with a breach of an AVO the police must prove beyond a reasonable doubt that:

  • There was an active and valid AVO at the time of the alleged offence
  • You breached a restriction or prohibition contained in the AVO.

Penalties:

In NSW, a court may impose any of the following penalties for a breach of AVO charge:

  • Custodial sentence
  • Home Detention
  • Intensive Corrections Order
  • Suspended Sentence
  • Community Service Order
  • Good Behaviour Bond
  • Fine
  • Section 10 (Where a court impose a penalty that the court deem appropriate without recording a conviction, resulting in the defendant maintaining his clean criminal record if it is his first offence)

Call us 02 9708 6832 for legal advice