Mandatory Interlock

Courts discretion to dispense with Mandatory Interlock

ROAD TRANSPORT ACT 2013 - SECT 212

Interlock exemption orders

212 Interlock exemption orders

(1) An interlock exemption order is an order that exempts an offender from the operation of section 211.

(2) Section 205 (Disqualification for certain major offences) applies to and in respect of an offender to whom an interlock exemption order applies.

Note--: If an interlock exemption order is made, the offender concerned will automatically be disqualified from holding a driver licence for the relevant period set out in section 205 and will not be subject to the requirement to participate in an interlock program.

(3) A court may make an interlock exemption order only if the offender proves to the court's satisfaction--

(a) that the offender does not have access to a vehicle in which to install an interlock device, or

Note--: For example, there is only one vehicle to which the offender has access in which an interlock device could be installed and it is used jointly with a family member or other person who has a medical condition preventing the person from providing a sufficient breath sample to operate the device and it is not reasonably practicable to modify the device.

(b) that the offender has a medical condition diagnosed by a registered medical practitioner that prevents the offender from providing a sufficient breath sample to operate an approved interlock device and it is not reasonably practicable for an interlock device to be modified to enable the offender to operate the device, or

(c) if the offender is convicted of an offence against section 110(4)(a), (b) or (c) or 111A(2) that is a first offence--

(i) that the making of a mandatory interlock order would cause severe hardship to the offender, and

(ii) that the making of an interlock exemption order is more appropriate in all the circumstances than the making of a mandatory interlock order.

(4) A person has 

"access" to a vehicle for the purposes of subsection (3)--

(a) if the person is the registered operator, owner or part owner of the vehicle or shares the use of the vehicle with the registered operator, owner or part owner of the vehicle, and

(b) it is reasonable in all the circumstances to install an interlock device in the vehicle.

(5) An interlock exemption order must not be made (except in relation to a conviction for an offence against section 110(4)(a), (b) or (c) or 111A(2) that is a first offence) merely because an offender--

(a) cannot afford the cost of installing or maintaining an approved interlock device, or

Note--: Financial assistance for use of approved interlock devices is available in certain cases--see section 48.

(b) will be prevented from driving a vehicle in the course of his or her employment if a mandatory interlock order is made, or

(c) has access to a vehicle but the registered operator of the vehicle refuses to consent to the installation of an interlock device in the vehicle.

Note--: For example, the offender's spouse is the registered operator of the only vehicle to which the offender has access and the spouse refuses consent to installation of an interlock device in it; the offender owns a chauffeur-driven limousine business and seeks exemption from installing an interlock device in cars used in the business.

(6) Transport for NSW may, by notice in writing given to an offender to whom an interlock exemption order applies, require the offender to undergo a drink driving education program nominated by Transport for NSW within a period specified by Transport for NSW.

Case Study

I had a client for a mid range drink drive matter.

My client was a crane operator and was required to drive mobile cranes to sites and operate them.

Whereas he could take the initial disqualification because he was going to be at the depot for months he couldn't survive the extended period on the interlock because in effect it would not allow him to drive the large number of mobile cranes that he was certified to operate.

With careful preparation and obtaining the necessary evidence a detailed oral submission was made before the Presiding Magistrate and my client successfully avoided the requirement to be placed on the interlock program.