In NSW drink driving is a criminal offence. This means that if you are found guilty of a drink driving offence it will go on your criminal record.
People are often surprised and concerned to hear this. Their next question is usually whether there’s anything they can do to avoid this.
If you’ve been charged with drink driving, the only way to completely avoid the offence going onto your criminal record is to be found ‘not guilty’, i.e. for the magistrate to decide that you did not commit the offence at all or for the police to agree to withdraw the charge.
Unfortunately, if you are found guilty (or plead guilty) the offence will be recorded on the criminal record. Once this happens, the real question is how long it will be disclosed if you do a criminal record check.
How long the drink driving offence will show up on criminal record search depends on the penalty imposed by the magistrate.
Section 10 Or Non-conviction
People often speak about getting a ‘section 10’ or ‘non-conviction’. This is where the magistrate finds the person guilty but doesn’t ‘record a conviction’. The phrasing of this is quite confusing and many people who get a non-conviction for drink driving think the case is wiped from their record entirely. This is not the case. The offence still goes onto the person’s criminal record but becomes spent immediately (or if a good behaviour bond is also imposed it becomes spent at the end of the bond period).
Once the offence is ‘spent’ it is usually not disclosed on a criminal record check. I’ll speak about that more below.
If on the other hand, a person is convicted then the offence goes on their record and the conviction only becomes ‘spent’ after the person completes a 10-year crime-free period.
Once a conviction becomes ‘spent’ it will usually not be disclosed on a criminal record check anymore. This means, for example, if a prospective employer asks for a criminal record check your spent conviction shouldn’t show up on it. You also won’t usually be required to disclose a spent conviction if asked about your criminal history.
There are some exceptions though. Spent convictions will still be disclosed in some circumstances, including:
- When applying for employment or appointment in certain occupations, including as a judge, magistrate, justice of the peace, police officer, member of staff of Corrective Services NSW, the Office of Sheriff, Department of Communities and Justice, teacher or teachers aide.
- When applying for a Working With Children Check or clearance under the NDIS workers check.
- For proceeding before a court, e.g. if you are being sentenced for a new offence or if you are a witness in a case.
If having a conviction on your record is a particular concern, it’s important to raise this with your lawyer before your case goes to court. They can advise you whether there could be an option to avoid a conviction, and criminal record, in your case.
If you have been caught drink driving and need the advice of a lawyer, please contact us at Ainsley Law. Our team of lawyers can guide you through your options.
Please call us today at (02) 8294 5697 or leave an enquiry.
