Do you know what is the legal definition of intoxication in NSW? If your answer is no, this article is for you.
When you’re behind the wheel, you’re responsible for the safety of yourself, your passengers, and everyone else on the road. But intoxication severely impairs your judgment and reaction times. This makes it much more likely that you’ll cause an accident, regardless of your intent to stay safe and sober.
In New South Wales, there are strict penalties for driving while intoxicated, including fines, licence suspension, and even jail time. But the worst consequence of DUI is that it can lead to death or severe injury. Only a minority of Australians may know the legal definition of intoxication. Thus, we have drafted this article for better understanding of the term.
What Is the Legal Definition of Intoxication in NSW?
Section 5 of the Liquor Act 2007 (NSW) answers the question “what is the legal definition of intoxication in NSW?” It states that a person may be intoxicated if:
- There are noticeable effects on a person’s speech, balance, coordination or behaviour, and
- It is reasonable in the circumstances to believe that the affected speech, balance, coordination, or behaviour results from the consumption of liquor.
Liquor & Gaming NSW also provides ‘Intoxication guidelines’ to help you determine whether a person is under the influence or not. You can download the guidelines through this link.
Moreover, research from the University of Wollongong defines intoxication in Australian criminal cases. The paper states that the court may consider the meaning of intoxication in its ordinary meaning. The Macquarie Dictionary defined intoxication as:
- Inebriation or drunkenness
- Poisoning
- Overpowering action or effect upon the mind.
Moreover, the article also cites the Shorter Oxford Dictionary that defines intoxication as:
- The action of poisoning; the state of being poisoned.
- The action of inebriating or making someone, insensible, or disordered in intellect with a drug or alcoholic liquor.
- The condition of being stupefied or disordered.
- The action or power of exhilarating or highly exciting the mind.
- The elation or excitement beyond the bounds of sobriety.
What Are the Noticeable Signs of Intoxication?
If you want to determine if a person is under the influence, knowing what is the legal definition of intoxication in NSW is not enough. There are also noticeable signs of intoxication which include:
- Slurring words, rambling or unintelligible conversation, incoherent or muddled speech, loss of train of thought, not understanding normal conversation etc.
- Unsteady on feet, swaying uncontrollably, staggering, difficulty walking straight, cannot stand or falling, stumbling, or bumping into or knocking over furniture or people.
- Behaviour can be rude, aggressive, offensive, bad-tempered, physically violent, loud, disorderly, vomiting, inappropriate sexual advances etc.
Types of Intoxication
Intoxication can be of two types: Voluntary and involuntary intoxication.
Voluntary Intoxication
Voluntary intoxication occurs when a person chooses to consume alcohol or take drugs of their own free will. In NSW, voluntary intoxication is not a defence to a criminal charge, but rather a factor that the court can take into account when determining intent. The court may consider the accused’s level of intoxication when assessing whether they formed the requisite intent to commit a criminal offence.
However, the accused’s intoxication is not relevant to assessing any other aspect of the matter. This means that while the court might acknowledge the accused’s intoxicated state, it will still apply the reasonable person test to determine if the requisite intent for the criminal offence was present. In other words, it must instead consider what a reasonably sober person would have done in the accused’s situation as they (drunkenly) perceived it.
Involuntary Intoxication
On the other hand, involuntary intoxication can occur when someone forces or tricks a person into taking drugs or alcohol. This could occur when a person faces threats if they do not consume alcohol or drugs. Courts must consider an accused individual’s level of intoxication when assessing the reasonableness of their belief in the necessity of their actions. In NSW, involuntary intoxication can be a defence to a criminal charge if the accused can prove that they were so intoxicated that they could not form the necessary mens rea (mental element) for the crime.
However, this defence is only available in certain circumstances, and the accused must prove that they were not responsible for their actions due to the intoxication. This type of intoxication is considered more sympathetically under the law, as the individual did not willingly consume the intoxicating substance. Nonetheless, it remains a challenging defence to establish and typically requires substantial evidence.
Driving While Intoxicated
Driving while intoxicated in NSW refers to operating a motor vehicle under the influence of alcohol or drugs. Moreover, the Crimes Act 1900 provides that when a reasonable person is guilty of the crimes of “dangerous driving occasioning death” or “dangerous driving occasioning grievous bodily harm” and is “under the influence of intoxicating liquor or of a drug,” intoxication may be a factor in the offence of dangerous driving.
Additionally, the Crimes Act provides that a certain blood alcohol content (BAC) can be an aggravating element, particularly in cases of “aggravated dangerous driving occasioning death” and “aggravated dangerous driving occasioning grievous bodily harm.”
Also, in R v. Jurisic (1998) 45 NSWLR 209, the court made a guideline decision for the sentence of reckless driving offences. It included ‘degree of intoxication or of substance abuse’ as one of the aggravating circumstances. The prosecution does not have to establish mens rea (a guilty mind or criminal purpose) in order to prosecute dangerous driving offences because they fall within the strict criminal liability category.
Thus, as discussed in the previous section on what is the legal definition of intoxication in NSW, a person who operates a vehicle while intoxicated may cause deadly accidents; and be severely penalised including getting a prison sentence.
For a more comprehensive read about driving while intoxicated, the discussion in this blog article might interest you.
The Sullivan v. R [2011] Case
Sullivan v. R [2011] NSWCCA 270 is a case from the New South Wales Court of Criminal Appeal that dealt with the issue of intoxication and criminal responsibility. It illustrates and answers the question, “what is the legal definition of intoxication in NSW?”
In this case, the appellant, Mr. Sullivan, was convicted of assault occasioning actual bodily harm. Mr. Sullivan had been drinking heavily on the night of the offence, and his blood alcohol concentration was 0.24%.
Mr. Sullivan appealed his conviction because he was intoxicated at the time of the offence and, therefore, could not form the necessary mens rea (mental element) for the crime.
The Court of Appeal dismissed Mr. Sullivan’s appeal. The Court held that intoxication is not a defence to criminal charges unless the accused can prove they were so intoxicated that they could not form the necessary mens rea.
In this case, the Court found that Mr. Sullivan was not so intoxicated that he was incapable of forming the mens rea for assault occasioning actual bodily harm. The Court noted that Mr. Sullivan could walk, talk, and drive a car on the night of the offence. The Court also noted that Mr. Sullivan was able to recall the events of the night in detail.
Implications of the Sullivan Case
The decision in Sullivan v. R [2011] NSWCCA 270 has several implications for people charged with crimes after drinking alcohol.
- The case confirms that intoxication is not a defence to criminal charges unless the accused can prove that they were so intoxicated that they were incapable of forming the necessary mens rea.
- The case highlights the importance of evidence in intoxication cases. The Court of Appeal, in this case, placed significant weight on the fact that Mr. Sullivan was able to walk, talk, drive a car, and recall the events of the night in detail. This suggests that courts will be reluctant to find that an accused person was so intoxicated that they were incapable of forming the necessary mens rea unless there is strong evidence to support this claim.
- The case is a reminder that people who drink alcohol before driving or engaging in other activities that carry a risk of harm to others are putting themselves at risk of criminal charges. If an accused person is convicted of a crime, the fact that they were intoxicated at the time of the offence is unlikely to be a mitigating factor.
Blood Alcohol Concentration (BAC) Limits in NSW
In NSW, the legal limit of intoxication, for full licence holders, is defined as having a blood alcohol concentration (BAC) of 0.05 or lower. This limit applies to drivers, and exceeding it can result in serious consequences, including fines, license suspension, and even jail time.
It is essential to understand the BAC limits in NSW and the implications of exceeding them. For instance, a higher BAC can be an aggravating factor in criminal offences such as dangerous driving occasioning death or grievous bodily harm.
The law is stringent in this regard to ensure public safety and reduce the risk of accidents caused by impaired driving. Therefore, anyone who consumes alcohol should be aware of these limits and the severe penalties for non-compliance.
Ask a Traffic and Criminal Offence Lawyer
If you want to know more about what is the legal definition of intoxication in NSW, you can ask a criminal defence lawyer to explain it to you. However, if you have a charge of driving under the influence (DUI) of alcohol or drugs, it is important to hire a traffic and criminal offence lawyer as soon as possible.
DUI is a serious crime with significant consequences, including fines, licence suspension, and even jail time. JB Solicitors can help you protect your rights and get the best possible outcome in your case. Let us guide you on how criminal law deals with intoxication laws.
Contact us today if you need legal help with criminal offences.
