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WHAT IS A DRINK DRIVING OFFENCE
In Queensland it is an offence to drive a vehicle with a blood alcohol content greater than the specified legal limit. Blood alcohol concentration is referred to as a percentage. The relevant legal limit depends upon the type of driver licence held, and in some cases, the type of vehicle being driven.
Provisional and Learner Licences - A holder of a provisional or learner's licence is prohibited from having any alcohol in their system whilst in control of a motor vehicle. In other words, a strict 0.00% limit applies. However, a holder of a provisional licence who is of age 25 or over is permitted to have a blood alcohol content of less than 0.05%.
Open Licence - An open licence holder is permitted to have a blood alcohol content of less than 0.05%. This means a blood alcohol content of less than 50mg of alcohol per 100ml of blood.
Special Cases - A strict 0.00% also applies to the drivers of trucks, buses, articulated vehicles, vehicles carrying dangerous goods, pilot vehicles, and taxis.
The offence of drink driving is made up of a number of elements. Generally, to be convicted of an offence of drink driving the following elements are required to be proved by the police:
Driving, attempting to drive, or being in charge of a motor vehicle:
To be guilty of drink driving you must be driving, attempting to drive, or "in charge" of a vehicle. Being "in charge" of a vehicle is a wide legal concept, and catches situations where the offender is not actually driving, or even about to, but simply in a position where he/she can physically exercise control over the vehicle. Examples include sitting in the vehicle while it is idling, or even sitting in a stationary vehicle which is not running with the keys in your possession. People have even been found guilty of "drink driving" in the past whilst actually asleep behind the wheel of a parked car, because they are still said to be "in charge" of the vehicle whilst in that position.
A motor vehicle (or tram, train or vessel):
A motor vehicle is defined broadly to include a tram, train or vessel. A motor vehicle includes any trailer attached to a motor vehicle, as well as a motor bike.
The consumption of liquor or a drug:
You must have consumed alcohol or a drug. This consumption may be verified by observable signs that your mental or physical faculties are affected by the consumption of liquor or a drug; or a validly obtained breath or blood analysis certificate showing a reading of a blood alcohol concentration over the relevant limit, or the presence of other drugs.
TWO LEVELS OF OFFENCE
Drink driving offences are generally viewed as either minor offences, or major offences. The distinction is important in relation to what penalties and other consequences flow from a conviction.
A minor offence is one where the alcohol level of the driver is less than 0.15%. In such cases the driver is said to have an "alcohol concentration" exceeding the legal limit. If the driver's blood alcohol level is 0.15% or over, or if the driver refuses to provided a sample, or is affected by other drugs, the driver is said to be "under the influence", and commits a major offence.
FAILURE TO PROVIDE A SPECIMEN
It is also an offence to disobey an express direction from a police officer to provide a breath specimen. The seriousness of a charge of failing to provide is dependant upon when and where the offence occurs. Essentially, there are two separate offences. While both offences are similar in nature (that is, they involve a failure to provide), the maximum penalties which flow from a conviction are significantly different for each. Both types of offences will be explained in more detail in the next section, which explores the powers of police in enforcing the state's drink driving laws.
POLICE POWERS REGARDING DRINK DRIVING
THE MECHANICS OF A CHARGE OF DRINK DRIVING
The vast majority of drink driving charges commence when the police stop a vehicle and its driver for the purpose of a road-side breath test.
Upon stopping a vehicle, the police will commonly ask the driver certain questions, and then require that he or she blow into a hand-held breathalyser unit. Importantly, the result of a road-side breath test is not final, but more a guide used to ascertain whether or not a person may have been drink driving. If your road-side breath test returns a positive result, the police will usually remove you to a "booze-bus" or a police station where there is appropriate equipment to conduct an analysis of a specimen of your breath.
In the event that the result of analysis of your breath indicates that you have a blood/alcohol level in excess of the legal limit, you will be charged with a drink driving offence. To be charged you will usually be arrested and required to enter into a bail undertaking. At this time you may also be given a written direction not to drive a motor vehicle for a period of twenty-four (24) hours. A breach of that direction will constitute a separate offence in its own right.
POWER TO DIRECT A PERSON TO PROVIDE A SPECIMEN OF BREATH
Essentially, there are two separate forms of the charge of failing to comply. The first and less serious version of the charge involves a failure to comply with a police direction to undertake a roadside breath test (that is, on a hand-held breathalyser). That offence carries a maximum penalty of a $3,000.00 fine, or six (6) months imprisonment. However, the penalties imposed are usually fines of a few hundred dollars. More serious is the charge of failing to provide a specimen of breath for analysis by the bench-top breathalyser unit. Conviction for that charge is seen as a major offence, which renders you liable to all of the penalties which attach to the offence of driving under the influence of liquor. Those penalties include driver licence disqualification of at least six (6) months, major fines and terms of imprisonment.
A person may defend the charge of "failing to comply" by immediately producing a doctor's certificate to the police officer who made the requirement, which states that the person is incapable of providing a specimen of breath, or that providing such a specimen might adversely affect the person's health. A person may also defend a failing to provide charge at a later time, by proving before a court that the above medical circumstances existed. Usually, a successful defence in court will necessitate medical evidence that the person was physically incapable of blowing sufficiently to carry out the test.
POWER TO DIRECT A PERSON TO PROVIDE A SPECIMEN OF BLOOD OR URINE
Where a person is visibly effected by liquor or a drug, but returns a negative or inexplicable result to a breath test, or produces a medical certificate stating that they are not fit to undergo a breath test, a police officer may arrest, detain and/or move that person so as to obtain a specimen of blood or urine for a laboratory test. A person may be removed to a police station, hospital, vehicle, vessel or other reasonable place for the purpose of providing such a specimen. If a person resists being arrested, detained or moved, the police may use reasonable force.
A specimen of blood or urine will usually be taken at a hospital or at a police station. Such specimens must be taken by a doctor, either nominated by a police officer or who is familiar with the person's apparent state of health at the time. A person required to provide a specimen of blood or urine must do so as and when directed by the doctor in question.
POWER TO STOP PRIVATE VEHICLES
A police officer may direct a person in control of a private vehicle to stop the vehicle so as to check whether the person is drink driving. You must comply with a police direction to stop unless you have a reasonable excuse. If you fail to comply because you believed that coming to an immediate stop would endanger yourself or someone else, or can prove that you proceeded to stop at the first reasonable opportunity, a reasonable excuse exists.
The maximum penalty for non-compliance with a police direction to stop is $4,500.00.
POWER TO REQUIRE VEHICLES TO BE MOVED
A police officer may direct a person in control of a vehicle to move the vehicle to a reasonable place. Again, a person must comply with a police direction to move their vehicle but for a reasonable excuse.
The maximum penalty for non-compliance with a police direction to move a vehicle is $4,500.00 for a private vehicle, or $9,000.00 for a heavy vehicle.
POWER TO INSPECT AND ENTER VEHICLES
A police officer may enter and inspect a vehicle which is stationary on a road, has been stopped or moved pursuant to a police direction, or has been used to commit a traffic offence. In such circumstances, a police officer may require help and use reasonable force to enter the vehicle. Upon entry, the officer has the power to search the vehicle and/or seize, copy, inspect, measure or photograph anything in the vehicle. A police officer may not exercise the above powers with respect to a personal possession, or a document which is unrelated to compliance with traffic and transport laws.
POWER TO PROHIBIT PERSONS FROM DRIVING
A police officer who has stopped a vehicle, and who reasonably believes that the person in control of that vehicle would commit a traffic offence by continuing to drive, may direct the person not to drive the vehicle. The direction not to drive must be given by notice in the approved form.
It is illegal for a person to contravene or attempt to contravene such a direction, except for a reasonable excuse. The maximum penalty for non-compliance with a police direction not to drive is $4,500.00 for a private vehicle, or $9,000.00 for a heavy vehicle.
There are two principal defences available against a drink driving charge. These are:
ACCURACY OF THE CERTIFICATE
Once you provide a breath specimen to police, a certificate stating your blood alcohol reading is issued. This certificate can only be overcome by showing that the breathalyser was defective or not properly operated, and therefore produced an incorrect result. You have only fourteen (14) days after being charged in which to give notice of an intention to dispute the correctness of the certificate under the law. While it is a defence available to you, it is normally very difficult to prove that a breathalyser was defective or not properly operated.
NOT DRIVING THE VEHICLE, ETC
One of the elements required to be satisfied before you can be convicted of drink driving is that you were driving, attempting to drive, or in charge of a motor vehicle. If it can be shown that the person charged was not driving or otherwise in charge of the vehicle, a valid defence is raised. This could apply if a passenger is charged instead of the driver, or if the court accepts that the person said to be in charge of the vehicle had demonstrated an intention not to drive.
There are a number of other defences which may be raised in response to a charge of drink driving. These defences are only available in limited circumstances. For example, a charge of drink driving may be overcome where the defendant can prove that they were directed to drive by a police officer, or that a blood specimen drawn from them was improperly dealt with. Importantly, where a specimen of blood, breath or urine is drawn more than two (2) hours after the driving in question, any resulting certificate of analysis will not be considered in support of the charge (see above).
The penalties likely to be imposed for an offence of drink driving depend in part on whether the offence is classified as a major or minor offence.
There are three forms of major offences:
Penalties for major offences are likely to include fines from about $1,000 up to $3,000 and involve a minimum licence disqualification period of six (6) months. It is also possible for the magistrate to order a period of imprisonment, however such a penalty is not common for first time offenders.
Minor offences include all offences involving a blood alcohol content reading above the relevant limit but less than 0.15%. First offences generally attract licence disqualification periods from one (1) month to twelve (12) months, and fines can range anywhere from just a few hundred dollars up to $2,000. The magistrate can still impose jail sentences, but such a penalty is generally reserved for repeat offenders.
Previous Drink Driving Convictions
In assessing the appropriate penalty for both major and minor offences, the magistrate will have regard to previous convictions. Those with previous convictions for drink driving will receive heavier penalties and longer disqualification periods. If it is your third major drink driving offence within a five (5) year period, an automatic jail sentence applies. It is arguable that the term of imprisonment may be suspended in limited circumstances. It is highly recommended that you seek legal advice before dealing with a charge in this circumstance.
WORK DRIVERS LICENCE
If you have been convicted of a drink driving offence you will be disqualified from holding a driver's licence for a period of time. For many people the loss of a driver's licence means the loss of employment, which causes extreme hardship for the offender and their family. In recognition of this, in certain circumstances the court will grant a work licence (called a "restricted" licence) which allows you to continue to drive for the purposes of your employment only. As a trade-off however, the period of disqualification imposed for non-work related matters is often extended significantly.
The court will impose limits upon the granting of a work licence such as:
A work licence carries four (4) points. If you accrue four (4) or more points your licence will be automatically cancelled. If you commit a further drink driving offence while holding a work licence, the period of disqualification will be substantially more than if you held an open licence. It must also be noted that holders of work licences are prohibited from having any alcohol in their system whilst driving, ie. a strict 0.00% blood alcohol limit applies.
WHEN TO APPLY?
You must apply for a work licence at the time the conviction for drink driving is recorded against you and before the court makes an order disqualifying you from holding a driver licence.
If you want to plead guilty to a charge of drink driving and apply for a work licence, tell the magistrate at the first court appearance that you need your licence for work and you will be making an application for a work licence. You will then be given a date and time to come back to court for the application to be determined by the magistrate, usually two (2) to four (4) weeks later. You keep your licence and can continue to drive in the meantime.
Information Outline is available courtesy of AussieLegal's online legal
information and law firm referral service.
you want further information, we recommend contacting the law firm of Ryan
& Bosscher Lawyers who specialize in this area of law. They are located
at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,
or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.
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