Defences – Driving Law https://drivinglaw.contentmanagement.se Just another WordPress site Mon, 12 Oct 2026 09:58:54 +0000 en-US hourly 1 https://wordpress.org/?v=7.0.1 https://drivinglaw.contentmanagement.se/wp-content/uploads/2026/08/cropped-favicon-32x32-1-32x32.png Defences – Driving Law https://drivinglaw.contentmanagement.se 32 32 Drinking After Driving but Before a Breath Test https://drivinglaw.contentmanagement.se/blog/drinking-after-driving-but-before-a-breath-test/ https://drivinglaw.contentmanagement.se/blog/drinking-after-driving-but-before-a-breath-test/#respond Sun, 17 Dec 2023 06:35:00 +0000 https://drivinglaw.contentmanagement.se/?p=10370

Drink Driving offences are offences of strict liability – effectively, if a person was suspected of driving/being in charge of or attempting to put a vehicle into motion and that person had a BAC greater than their allowed limit (See our full article on Drink Driving). Then that person is guilty of a Drink Driving offence. The Police have 3 hours from the time the defendant was suspected of driving to give them a breath or blood test.

There is, rarely a scenario which occurs where a person comes to the attention of police, they return home and consume a considerable amount of alcohol. This might looks something like this:

Cara is driving along Discovery Drive in Helensvale and clips a light post and continues home. A witness calls the police, giving a description of the vehicle and licence plate. Cara arrives home, nerves are shot and she drinks ¾ of a bottle of wine in an hour before the police arrive. Cara tells the police that she had not consumed any alcohol before she drove and that she had drunk wine after the fact.

When this occurs, there is a possibility that a defendant could raise what is called a “Dorfler Argument” which arises from the case of Davies v Dorfler; Ex parte Davies [1988] 2 Qd R 490 (this case was further followed by Leach v Commissioner of Police [2009] QDC 66. In other words what happens if you drink after driving but before the police breath test you.

How can the defence be raised?

The defence can be raised if it can be proven that a defendant had consumed liquor after their driving and/or the prosecution cannot prove that the defendant had been under the influence of liquor at the time of driving.

It is important to note that this is not as simple as stating that you had not consumed liquor before driving and then you returned home and had a drink.

It is going to rely on a number of factors, including whether there was any visible evidence of alcohol consumption at home, your Blood Alcohol Reading measured against amount of alcohol drank and how much time has passed.

For example:
Cara has clipped the light post on Discovery Drive at 6:00pm and travelled straight home, arriving at 6:05pm. She pours herself a glass of wine and drinks it. She repeats this until ¾ of the bottle has been consumed over 1 hour. The police arrive and administer a breath test which has a positive indication for alcohol. Cara is then taken to the Coomera Police Station where on a subsequent breath test she has a BAC of .134%.
In this example, it may be possible to raise the Dorfler Argument as a valid defence. 0.134% when measured against alcohol drank, time elapsed and other variables, it may be calculated what her BAC would have been at the time of the accident and would not have had a reading that gives rise to an offence.
If however, Cara’s reading came back as .200%, then there is some indication that Cara may have been intoxicated at the time of driving, which would negative the defence.

How would it work?

The existence of the defence does not guarantee it’s success. The prosecution will often rely on any witnesses who could provide any testimony as to a defendant’s indicia, meaning did they display signs of being intoxicated. The police can also seek a Forensic Countback be conducted. A forensic countback is a report generated by an appropriately qualified person, such as a scientist, forensic medical officer or toxicologist.
The report will calculate the estimated BAC at the time of the commission of the offence. The report is much more detailed calculation of estimated BAC and takes into account the following:
  1. Age;
  2. Height;
  3. Weight;
  4. Gender;
  5. Amount and type of alcohol consumed;
  6. The period of time which you allege you consumed alcohol; and
  7. Your ultimate reading.
The report, while not 100% accurate, will usually be convincing in the eyes of the court. That is to say, if the report is not favourable it will remove the Dorfler Argument as an available defence. It may however, support the case theory that you put forward.
The Forensic Countback may return that a person had a prescribed concentration of alcohol in their blood, however it may determine that the estimated reading at the time of the offence was within a lower threshold. This might look like a .200%BAC at time of reading, being closer to .140%BAC at the time of driving. This has the effect of lowering mandatory penalties and potentially opening up options for an application for a restricted licence.

Do I have to take the defence to trial?

While the defence will ultimately be tested at Trial, a skilled practitioner will likely enter the case conferencing process to either seek to have the prosecution withdraw the charge or if possible, lower the reading to a lower offence threshold.
Case Conferencing the matter, as it relies on negotiating with police prior to any forensic report being prepared will also necessarily factor in a believability element. Effectively, did the defendant tell police that they had drank after getting home, whether there is any visible evidence of that fact etc etc.

Example:

Peter was driving home after work where he had consumed a light beer at approximately 5:45pm. During travel he side swipes a Tesla car, gets out and inspects the damage. He ultimately leaves the scene and continues a few minutes until he arrives home at 6:05pm. There was a witness to the incident and the police were called, and arrive at Peters house at 8:00pm. Peter had a stressful day and was now panicking about having hit a car. Peter got home and started drinking ready to drink bourbon, he drank 8 cans until the police arrived at 8:00pm. Peter admitted to driving and hitting the other car and told police he’d had one drink at 5:45pm and got home at 6:05pm when he started drinking.

Police observed numerous cans of bourbon and they take him to the station for a breath test. His ultimate test returned a reading over in excess of .177%. Peter’s lawyer was able to negotiate with police, based on what they had witnessed, the time that had elapsed and simple calculations based off known rates of elimination to demonstrate that at the time of driving, he was likely not over a BAC of .05%.

Why doesn’t everyone do this?

The simple answer is that this is a very uncommon and difficult defence to raise. The overwhelming majority of drink driving charges arise from a police intercept or after someone has immediately gotten home. Defences to a drink driving charge are on the whole quite rare in Queensland.
The defence will rely on the right circumstances and may required favourable calculations from any forensic countback that may be conducted.

Conclusion

This article is not and should not be taken as a complete explanation or legal advice regarding a forensic countback or a defence to drink driving. This article serves to give an overview on a misunderstood and uncommon defence to a very common charge.

If you are in a circumstance where you were consumed alcohol after you stopped driving and were subsequently breath tested, this is information you should bring up with your lawyer who can advise on all the facts, if there is an available defence.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Click here to select a time for us to have a free 15 minute telephone conference with you
  4. Email steven@claritylaw.com.au
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  6. Click the help button to the right and leave us a message

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drink driving.

You won’t be chased or hounded to engage us. Remember its critical you get advice before going to court, a drink driving charge no matter the reading will have an impact on you, your family and your employment or business.

Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Drink driving lawyers page.

]]> https://drivinglaw.contentmanagement.se/blog/drinking-after-driving-but-before-a-breath-test/feed/ 0 Defence of Sudden or Extraordinary Emergency https://drivinglaw.contentmanagement.se/blog/defence-of-sudden-or-extraordinary-emergency/ https://drivinglaw.contentmanagement.se/blog/defence-of-sudden-or-extraordinary-emergency/#respond Thu, 12 Oct 2023 10:37:00 +0000 https://drivinglaw.contentmanagement.se/?p=6423

What happens if you believe you are forced to do an illegal act in Queensland due to a sudden emergency arising ? Is there a defence to this extraordinary emergency and what would happen in court if you are charged?

What is the defence of sudden or emergency driving?

Section 25 of the Criminal Code (QLD) provides that;
  • Extraordinary emergencies
  • Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
The elements of the defence are as follows ;
  • The first element requires consideration as to whether there was circumstances of sudden or extreme emergency. The word emergency carries its ordinary meaning.
  • The second element requires consideration as to whether the defendant’s act or omission was done or made under the circumstances of sudden or extreme emergency. The requirement that the act or omission was “done or made under” such circumstances requires that the defendant acted as the defendant did because of the stress of those circumstances upon the defendant. If the circumstances in the first element were not known to the defendant or if the defendant behaved as the defendant did for reasons unrelated to those circumstances, then it will not have been an act or omission done or made under those circumstances.
  • The third element requires a look at the circumstances of sudden or extreme emergency under which the defendant may have acted. The court must look at were those circumstances such that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise? To exclude this element the prosecution must prove beyond reasonable doubt that the defendant’s reaction in the circumstances was outside what you could reasonably expect of an ordinary person with ordinary powers of self-control.
A person in a sudden or extraordinary emergency may make what appears in calm hindsight to be a wrong choice but you must look at the situation as it presented itself in the emergency of the moment. The defendant is not expected to be wiser or better than an ordinary reasonable person in the same circumstances; and you will appreciate that a person in an emergency cannot always weigh up and deliberate about what action is best to take. Such a person must act quickly and do the best the person can.
If the prosecution cannot exclude any of the other elements either, the defence will apply to excuse the defendant from criminal responsibility and therefore the defendant will be found not guilty.

When could the defence apply?

Lets look at the types of offences that the defence of emergency driving might apply to.
Disqualified driving
The leading case in Queensland giving guidance as to the application of section 25 of the Criminal Code for a disqualified driving charge is Moores v Pearce.
The facts of the case were
  • The appellant, Tod Moores, was taking care of a sick 3½-year-old child
  • The child’s temperature was elevated, leading to increased irritability
  • The appellant attempted to contact the child’s parent and monitored the child’s condition
  • The appellant’s partner, an enrolled endorsed nurse, arrived later and was too ill to drive
  • The decision to drive for medication was made, leading to interception by police as Mr Moores licence at the time was disqualified
The Magistrate found that the most reasonable options were to seek medical advice by phone or by calling an ambulance, but Mr Moores did not pursue these.
Mr Moore argued that the situation was not yet so dire that an ambulance should be called. He also argued public transport was not available and that he could not afford a taxi.
Mr Moore was found guilty of disqualified driving by the magistrate. He then appealed the decision saying he had a defence of extraordinary emergency.
The appeal court found he did have a defence and should be found not guilty. The appeal judge found that the prosecution led no evidence about what the result would have been at the time if Mr Moore had exercised any of the choices that the magistrate held were reasonably open for him. Importantly, there was no evidence that the advice given would have been be to the effect that it was unnecessary to obtain relevant medication for such a child, such as Panadol. In the absence of relevant contrary evidence, it is not beyond reasonable doubt that the ordinary person possessing ordinary power of self-control in the sudden emergency then being confronted could reasonably be expected to act as if there were no other realistic alternative choices to driving, even for a person disqualified from driving.
This case provides some insight on how the defence of emergency applies to disqualified driving charges in Queensland. In particular the summary in paragraph 16 of the decision that provides
…On appeal, it was held, first, that, relevantly, in order to negative the defence, the tribunal of fact must be satisfied beyond reasonable doubt that, in the circumstances that it found, “the ordinary person could reasonably be expected to act otherwise” (emphasis added): at [17]. This meant that, accordingly, if in such circumstances it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the defendant did, the defence would not have been excluded: also at [17]. Secondly, it was held that the ordinary person means an ordinary person “in the position of the defendant …
Once the defence is raised at a trial it would be up the Prosecution to prove beyond a reasonable doubt that the defence was excluded as was stated at paragraph 24 in Moores v Pearce;
…there is no onus on an defendant to raise a reasonable doubt where s 25 is prospectively engaged since, once an defendant person has satisfied the evidentiary onus, the onus of excluding the operation of the excuse beyond reasonable doubt is on the prosecution: at [23]. Usefully, that judgment contained a reference to a much cited text of R S O’Regan as proposing that s 25 provides a residual defence to protect the “morally innocent” where other defences do not apply…
Another disqualified driving charge was the matter of Berbic v Steger
The facts of the case were that;
  • the defendant had previously had his licence disqualified and could not legally drive
  • the partner of the defendant drove them both to an internet café at Sunnybank Hills in Queensland
  • at about 11.30 pm the partner obtained a meal at a fast food outlet, which she ate back at the internet café, and stayed there with the defendant
  • about an hour later, she became really sick. She felt nausea and started vomiting. She went to a toilet which was outside the café
  • the pain became worse and she was crying and screaming. She phoned her father to come and get her but he was unable to because he was himself not well, then she asked her sister who said she could not be there for an hour
  • she said she was in so much pain she just wanted to go home and she was pleading with the defendant to take her because she just wanted to get out of there. She continually asked him to do it, and he started to drive her home
  • on the way, she had really sharp pains in her stomach and asked him to take her instead to a hospital. Before she reached there, however, she felt as though she was going to throw up again, and asked the appellant to pull into a service station
  • the appellant did so, she got out and went to the toilet where she was sick again
  • the defendant was found by police in the drivers seat and arrested for disqualified driving
The cases provides that an ordinary person, that being an ordinary person in the position of the defendant could have acted as the defendant did. The word “could” is critical.
Dangerous Driving
Section 25 can be a defence to a dangerous driving charge. Cases where the defence of emergency have been successful in dangerous driving cases in Queensland include;

R v Sheldon

This is one of the more interesting cases where the defence of emergency might exist.
The facts were that;
  • the defendant and his two passengers were driving away from the IGA store at Mudgeeraba, where they had committed a break and enter
  • the defendant was driving a late model VW Golf (“the VW”), in which were three persons and a safe weighing some 20 kilograms which had been taken from the IGA store
  • as the defendant drove along Spencer Road he noticed an odour and asked one of the passenger in the rear seat whether the odour was emanating from the safe
  • after making the enquiry about the odour, the defendant felt something heavy hit his shoulder which then slipped onto his lap. He thought that the passenger in the rear had lifted the safe and rested it on the shoulder of the driver’s seat from where it fell onto him
  • the defendant then took his eyes off the road and used both arms in an attempt to push the safe back into the rear seat
  • the VW collided with the rear of a parked truck
  • both passengers in the VW were killed
The defendant was found guilty of dangerous driving causing death at the trial.
He appealed and the appeal judges found that the jury should have had an opportunity to consider whether the defendant was not guilty due to the defence of sudden emergency. A retrial was ordered.

R v Warner

The defendant, while driving late at night along Ipswich Road in Queensland, became aware that another vehicle had come up behind him, and was being driven very close to the rear of his vehicle, and continued to do so both when the defendant reduced his speed to well under the speed limit, and when he increased it to significantly above the speed limit.
He said that he became scared of the other driver’s intentions, and drove at high speed in an attempt to escape. At one point, the other vehicle actually bumped into the rear of his vehicle.
The defendant was found guilty of dangerous driving but appealed the decision. On appeal the court found that the defence of extraordinary emergency was valid. A new trial was ordered. His Honour said:
There is quite a significant body of evidence to the effect that a rather terrifying situation may have been created by the driver of the other vehicle and that the defendant may have been acting in response to it from fear and to avoid the risk of harm at the hands of the other driver.

What would a “sudden” emergency mean?

If there are no circumstances of sudden or extraordinary emergency, then the defence will not apply. The courts in Queensland still haven’t entirely decided how an extraordinary emergency which is not also “sudden” could occur.
The courts have generally assigned a meaning to “emergency” that extends beyond circumstances that are urgent or time imperative. However, the Court has also considered that the concept of a “sudden emergency” may be taken to refer to the manner in which the emergency arose, rather than speaking to the timing of the required response.

Summary

The elements of the defence of sudden or extraordinary emergency in Queensland are;
  1. there existed circumstances of sudden or extreme emergency; and
  2. the defendant’s act or omission was done or made under those circumstances; and
  3. those circumstances were such that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.

If the prosecution cannot exclude beyond reasonable doubt the possibility that these three elements were all present at the time of the alleged offence then the defence will and the defendant will be found not guilty of the offence.

One of the people who drafted the legislation described section 25 as;
  • This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.’

Why should I engage Clarity Law?

Quite frankly we care about getting the right outcome for our clients and helping them through one of the most difficult times in their lives.
In the face of a traffic charge, selecting the right legal representation is paramount, and Clarity Law offers a unique blend of proficiency and empathy that sets us apart. Our firm is dedicated to providing clarity in the often complex world of traffic law. We believe that every client deserves a clear understanding of their rights and the legal process they’re navigating.
Our experienced team of lawyers approaches each case with a commitment to open communication, ensuring you’re informed every step of the way. With a proven track record of securing favourable outcomes, we have the expertise to navigate even the most intricate legal challenges.
At Clarity Law, we strive not only to be your staunch advocates but also to provide a supportive, understanding environment during this trying time. Choosing Clarity Law means choosing a team that will tirelessly work to protect your rights and pursue the best possible outcome for your case.
You can read more about our founder, Steven Brough’s, journey to starting Clarity Law by clicking here.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;
  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Click here to select a time for us to have a free 15 minute telephone conference with you
  4. Email steven@claritylaw.com.au
  5. Send us a message on Facebook Messenger
  6. Click the help button at the bottom right and leave us a message

We are a no pressure Queensland law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.
Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Traffic law services page.
]]> https://drivinglaw.contentmanagement.se/blog/defence-of-sudden-or-extraordinary-emergency/feed/ 0 Can You be Charged With Drink Driving When You Did Not Actually Drive? https://drivinglaw.contentmanagement.se/blog/can-you-be-charged-with-drink-driving-when-you-did-not-actually-drive/ https://drivinglaw.contentmanagement.se/blog/can-you-be-charged-with-drink-driving-when-you-did-not-actually-drive/#respond Thu, 31 Aug 2023 06:44:00 +0000 https://drivinglaw.contentmanagement.se/?p=5934
People are obviously familiar with how a someone could be found guilty of drink driving when they are pulled over by the police over the limit. However it is also possible to be found guilty of drink driving even though at the time the police arrived you were not actually driving. This is the offence of drink driving in charge of a motor vehicle.

The law

Let’s look at the law when it comes to drink driving. The states that a person can be charged with drink driving if they are over the limit and:

The key components of the new laws include:

  • drives a motor vehicle; or
  • attempts to put in motion a motor vehicle; or
  • is in charge of a motor vehicle;

So what does in charge actually mean?

The law does not define exactly what being in charge means. Common sense then applies, could the person in the circumstances be thought of as being in charge of the vehicle? Some of the more common definitions from dictionaries include:
  • being the person who has control of or is responsible for someone or something
  • In a position of leadership or supervision
  • having control of or responsibility for (something)
If you are say making a call outside of a car you own and that you drove to a location are you in charge? Well if an ambulance came up behind the car and the car needed to be moved, who moves the car, likely the person who owns the car or drove it there. They therefore are likely to be in charge of the vehicle.

Is there a defence?

Section 79(6) states that a person who:
  1. is not in the driver’s seat of the vehicle; or
  2. is not in the vehicle; and
  3. had manifested an intention of refraining from driving that motor vehicle; and
  4. was not so intoxicated as to be incapable of understanding or forming the intention of refraining from driving that motor vehicle; and
  5. the motor vehicle was parked in such a way as not to constitute a source of danger to other persons or other traffic; and
  6. the person had not in the last 12 months been convicted of a drink driving offence.
is not guilty of the offence of drink driving whilst in charge.

What are some examples?

In Eggmolesse v Bruce the Court of Appeal found that a mechanic, who was intoxicated, that had walked to assist his sister who had broken down had not manifested an intention to drive when he reached through the window to the car and turned the engine on after repairing it and then turned it off almost immediately.
The facts were that Mr Eggmolesse’s sister phoned him and asked him to bring some petrol to the vacant lot as the car in which she was a passenger had stopped. He did not intend to drive any vehicle that day. He walked to the Commodore carrying the petrol, rather than driving there from his home, because he did not have a licence and he was drunk.
When he arrived, she was at the car and its bonnet was open. He was a mechanic. He put some petrol into the car and went to the driver’s side. He leant in the window intending to see if the car would start but there was no key in the ignition. He could not turn over the engine, let alone start the car, because the key was missing. He returned to the front of the vehicle to close the bonnet when the police arrived. He was not so drunk that he did not know what he was doing. Before the police arrived, he had also worked on the Commodore’s disconnected battery.
He explained that he had replaced it with another battery which was on the ground in front of the Commodore. He had no intention of driving the Commodore and once he realised there was no key in the ignition, he left the driver’s side and shut the bonnet.
You can read the case here – Eggmolesse v Bruce
In Queensland Police Service v Murray the case revolves around the interpretation and application of section 79(6).
The defendant, Mr. Murray, was found by police asleep in his car with the engine running and under the influence of alcohol. The central issue was whether Mr. Murray could rely on the defence provided by section 79(6) to avoid conviction.
Key Facts of the Case:
  • Mr. Murray was found by police in his car, asleep, under the influence of liquor.
  • The car was parked outside a location in Hay Point.
  • Prior to entering the car, Mr. Murray had formed the intention not to drive while under the influence of liquor or drugs.
  • He reclined the back of the driver’s seat, lay down on it, and fell asleep.
  • At the time the defendant was so found by the police officers, the rear of the driver’s seat had been lowered backwards to its full extent so that the defendant was lying with his legs and buttocks on the front seat of the vehicle and the remainder of his body extending into what is normally the rear compartment of the vehicle.
  • At some point, he woke up and accessed the car keys to activate the ignition in order to lower the driver’s window.
  • After lowering the window, he went back to sleep on the reclined seat.
  • Police woke him up and charged him with an offense related to being in control of a motor vehicle under the influence of alcohol
Key Points from the Case:
  • The court interpreted the provisions of section 79(6) and considered whether the defendant’s actions met the requirements for the defence.
  • The defence required that the defendant intended to refrain from driving while under the influence and manifested that intention by occupying a compartment other than the driver’s compartment.
  • The court emphasized that the intention not to drive must exist at all relevant times, but brief periods of change in position (e.g., activating ignition) would not necessarily disqualify reliance on the defence.
  • The court analysed the term “occupy” in the context of the defence and concluded that brief movements within the driver’s compartment did not necessarily negate the defence if the overall intention was not to drive.
  • The court found that Mr. Murray had manifested the intention not to drive by his actions, and that his brief movements to activate the ignition did not negate his overall intention.
  • The court also considered whether Mr. Murray’s actions constituted a source of danger to others, concluding that they did not.
  • The court ruled that Mr. Murray had successfully established the defence under section 79(6) and was therefore not guilty of the offense.
In summary, the court ruled in favour of Mr. Murray, finding that his actions and intentions met the requirements of the defence provided by section 79(6), and he was not guilty of the offense he was charged with.
You can read the case here – Queensland Police Service v Murray [2021] QMC 5,
Let’s look at a case where the defence did not work, the case of Foster v Dahl.
  • The case involves Shirley Foster, who was convicted of being in charge of a motor vehicle while under the influence of liquor and/or a drug.
  • A passer-by, Mr. Gorring, found Ms. Foster in her car on the side of the road. She appeared unconscious or barely conscious, but she became coherent and conversed with him after he roused her.
  • The police and ambulance attended the scene. An empty bottle of vodka was found in the car, and she exhibited signs of intoxication.
  • Ms. Foster admitted to drinking and had been drinking vodka. A breath analysis was taken later that afternoon.
  • During the trial, Ms. Foster claimed that she had parked her car with the intention of overdosing on alcohol and pills to kill herself.
  • She was found guilty of the offence by the Magistrate.
  • Ms. Foster appealed her conviction under section 222 of the Justices Act. The appeal was by way of rehearing, where the appellate court had to make its own determination based on the trial record.
  • The appellant’s position was that she ceased to be in charge of the car when the keys were taken from her, around 3:20 p.m. The breath analysis was done at 5:30 p.m.
  • The appellant’s condition suggested intoxication, and her actions after the keys were removed indicated her continued control over the vehicle.
  • The court examined whether the appellant had occupied a compartment of the vehicle other than the driver’s seat with an intention to refrain from driving.
  • The court rejected the defence’s argument and found that the appellant had occupied the driver’s seat and had not manifested an intention to refrain from driving.
  • The court discussed issues related to the timing of the breath analysis test, the validity of the breath analysis certificate, and the evidence of intoxication.
  • The court concluded that the conviction was supported by the evidence, and the appellant’s appeal against conviction was dismissed.
In summary, Shirley Foster’s appeal against her conviction for being in charge of a vehicle while under the influence of alcohol or drugs was dismissed, and her sentence was upheld. The court found that the evidence supported the conviction and that the sentence was appropriate considering the circumstances.
You can read the full case here – Foster v Dahl [2009] QDC 45

Lets look at one final case. The case of Brooks v Spasovski is a significant one in Queensland law. In this case, the defendant, who had consumed alcohol and was substantially intoxicated, requested his family to rescue him and while waiting for them, he decided to wait in his car. He sat in the drivers seat and threw his keys towards the floor of the car but by error they ended up on his lap, he then fell asleep.

The Magistrate initially found him not guilty because they thought he had formed the intention not to drive.

However, this decision was overturned at the District Court. The court ruled that what mattered was that he was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person.
This case highlights the broad interpretation of being “in charge” of a vehicle under the influence, which can include simply being in the vehicle with the keys, even with no intention to drive.
You can read the decision here – Brooks v Spasovski [2004] QDC 471

Summary

  • The term in charge is not defined by the law so its general meaning will be used. Generally in charge is defined in dictionaries as being the person who has control of or is responsible for something.
  • You can be in charge of a motor vehicle but not actually physically in the vehicle.
  • A defence is available but you must, in addition to other requirements, show an intention of refraining from driving the motor vehicle.
  • This area of the law is complicated and each case will turn on its own facts.
Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Drink driving lawyers page.
 
]]> https://drivinglaw.contentmanagement.se/blog/can-you-be-charged-with-drink-driving-when-you-did-not-actually-drive/feed/ 0 Can You Beat a Drink Driving Charge? https://drivinglaw.contentmanagement.se/blog/can-you-beat-a-drink-driving-charge/ https://drivinglaw.contentmanagement.se/blog/can-you-beat-a-drink-driving-charge/#respond Mon, 21 Nov 2022 11:31:00 +0000 https://drivinglaw.contentmanagement.se/?p=4919

Drink driving offences are some of the most common matters that Queensland courts see however this does not mean the consequences of losing the ability to drive is not serious. People’s lives can be ruined by long periods of disqualification especially if no work license is granted.

The questions then arises is there a defence to a drink driving charge, in other words can you beat a DUI?

When can the police undertake a breath or blood test?

The police can require a person to provide a sample of breath or blood if they reasonably suspect a person in the previous 3 hours had;
  1. Driven a vehicle; or
  2. Attempted to put in motion a vehicle; or
  3. Was in charge of a vehicle

What do the police need to prove?

The law states that to prove a drink driving charge the police must show that the driver;
  1. Is over the legal limit for that driver; and
  2. Drove a vehicle; or
  3. Attempted to put in motion a vehicle; or
  4. Was in charge of a vehicle
Whether someone is over the limit is usually determined by way of a breath or blood test. However for a charge of driving under the influence (high range drink driving) the police can alleged that the person was showing indicia of being intoxicated like
  • The manner of driving
  • A person physical condition and appearance
  • Behaviour and attitude
  • A person’s eyes and breathing
  • Speech
  • Coordination
  • Memory
  • Conduct at watch house or with police

What are some possible defences to a drink diving charge?

Not In charge of a vehicle
One possible defence would be that you were not if fact “in charge” of the vehicle at the time of the offence.
The law states that a person is not in charge of a vehicle if they had manifested an intention of refraining from driving that motor vehicle whilst the defendant was over the limit.
There are however some important exceptions to this defence. The defence will not apply or is unlikely to apply if;
  1. They were in the driver’s seat or compartment that contained the driver’s seat
  2. They were too intoxicated to try and form the intention not to drive
  3. The motor vehicle was parked in such a manner as to constitute a source of danger to other persons or traffic
  4. The person had been convicted of drink driving within the previous 12 months.
Generally these defenses occur when someone is sleeping off the effects of alcohol in the back seat, or was near the vehicle waiting to be picked up.
In Eggmolesse v Bruce the Court of Appeal found that a mechanic, who was intoxicated, that had walked to assist his sister who had broken down had not manifested an intention to drive when he reached through the window to the car and turned the engine on after repairing it and then turned it off almost immediately.
If the driver was in the drivers seat then this defence is almost certain to fail.

Had not driven in the last 3 Hours

The police cannot seek someone provide a breath sample or blood sample unless they reasonably believe they drove, attempted to drive or was in charge of a vehicle in the last 3 hours.

The laws then goes on to state that the request for a sample cannot be made unless it is made as soon as practicable and within three hours after the occurrence of the event whereby the police officer is authorised by that section to make such a requirement.
An example of this might be a car crash, the police are told about a car crash at 9:00pm but do not reach the crash site or do not locate the alleged driver until 12:05pm, in that example it may be a defence to show the police did not request the test within 3 hours and therefore the charge should be dismissed.
Drinking after driving
It might be defence to a drink driving charge if you can prove the alcohol in your system was ingested after you finished driving but before you drove.
The starting point will always be that the law states that the breath analysis certificate that shows the reading is conclusive evidence of the concentration of alcohol present in the blood or breath of the person in question at the time the sample of that person was analysed and at a material time in any proceedings if the analysis was made not more than 3 hours after such material time, and at all material times between those times.

Therefore the certificate is conclusive proof of the reading. It therefore might seem there is no defence if the certificate shows a reading over the limit even if the driver drank after driving. However the case of Davies v Dorfler; ex parte Davies the court recognised that it might be possible to form a defence if at the material time, that is the driving, the defendant was not over the limit.

However the “Dofler” defence has not found widespread support amongst all the courts. Some Judges disagree there is any defence at all if the certificate shows the driver was over the limit at the time sample was given, others believe it can only potentially apply if the driver had consumed no alcohol before driving and the only alcohol consumed was after they finished driving.

In my view the defence would only likely work if proof can be shown that the driver did not drink before driving and proof can be shown they did drink after driving. Proof is likely to mean statements of witnesses. The police can also seek medical advice to try and count back the drinks to see if the reading is consistent with the driver saying they only drank after finishing driving.

Read more on drinking after driving but before the breath test.

Not on road
In Queensland you do not have to have driven on a road to be arrested for drink driving. The legislation provides you can be charged with drink driving on a road or “elsewhere”. Obviously “elsewhere” applies to private property, carparks and driveways. This case shows how the court interprets the law – Jovanovic v Lucas [2009] QDC 138

Failure to provide

It is a defence to the charge to prove that, at the time the request was made to provide a sample of breath or saliva, the person was suffering from an illness that made them incapable of providing such a sample. It is also a defence to prove that, at the time of the request, the person’s health could have been affected by giving the sample. Proof is provided by a medical certificate that the person carries with them and can show the police officer at the time of the request. Otherwise, the person must prove that they had such a medical condition in court, after they have been charged. Remember, however, that the police can ask the person for a different type of sample.

It is also a possible defence to prove, to the court, that the request was not made lawfully or that there was a substantially good reason to not provide a specimen (other than trying to avoid the results of the test).
We have a whole article on failing to provide a specimen of breath.

Police procedure not followed

The police have to follow certain procedure when requesting a sample of breath or blood. This area of law is extremely complicated and not well understood by even the courts.
It would take legal advice to decide if a failure to follow the rules and whether that failure was enough to raise a defence. Even if the defence is raised the court can use the rule in Bunning v Cross to admit the evidence even if it was improperly obtained.
Incorrect reading
The certificate of analysis is conclusive proof as to the reading at the time of driving. If it can be shown the test was administered incorrectly or the testing machine was defective this might be a defence.
Mistake
You cannot claim a defence of mistake as to the amount of alcohol you consumed. You might however have a defence if you consumed the alcohol Involuntary. For example someone gave you a drink and said the drink had no alcohol in it, you had no reasons to doubt them and the drink turned out to have alcohol and you did not notice that before driving.
The issue would of course be the evidence that could be obtained.
Extraordinary emergency
The court recognises under the Criminal Code that you might have a defence to breaching the law in the cases of an extraordinary emergency. For example a person fleeing an assault who is found to be over the limit might have a defence.

Summary

Although there are a number of potential defences the reality is the courts are very reluctant to accept a defence as they fear if one person can show a defence then all drink drivers might claim that defense.
Rather than going to trial and raising a defence a better way might be to negotiate with the prosecutor to try and have the charge withdrawn. Negotiations or case conferencing might result in the charge being dropped and no trial being necessary.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;
  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Click here to select a time for us to call you back
  4. Email steven@claritylaw.com.au
We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drink driving.
You won’t be chased or hounded to engage us. Remember its critical you get advice before going to court, a drink driving charge no matter the reading will have an impact on you, your family and your employment or business.

Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Drink driving lawyers page.

]]> https://drivinglaw.contentmanagement.se/blog/can-you-beat-a-drink-driving-charge/feed/ 0 Defences to an Evading Police Charge https://drivinglaw.contentmanagement.se/blog/defences-to-an-evading-police-charge/ https://drivinglaw.contentmanagement.se/blog/defences-to-an-evading-police-charge/#respond Mon, 07 Sep 2015 07:42:00 +0000 https://drivinglaw.contentmanagement.se/?p=2598

Defences to a charge of evading police

The charge of evading police is an extremely serious charge with the Queensland Government enacting some of the toughest legislation in the country. The government have shown a continued desire to see people jailed for evading the police.
The question then becomes are there any defences to the charge of evading police?
First we will look at what evading police is, then the consequences and finally we will look at 5 potential defences.

What is evading police?

Section 754 of the Police Powers and Responsibilities Act 2000 (Qld) provides that to be charged with evading police (also called failure to stop) the driver of a motor vehicle must have failed stop the motor vehicle as soon as reasonably practicable after a police officer has directed them and a reasonable person would have stopped the motor vehicle in the circumstances.
Generally the offence would occur when a police officer in a police vehicle attempts to stop a driver who fails to do so within a reasonable time and thus evades police.

What is the punishment for evading police?

The law provides the penalty as:
  • Minimum penalty—50 penalty units or 50 days imprisonment
  • Maximum penalty — 200 penalty units (currently $34,540) or 3 years imprisonment
This meant that the court has to impose either a fine of 50 penalty units (currently $8,635) or a term of imprisonment of no less than 50 days.
The law also provides a minimum drivers licence disqualification of 2 years and unfortunately the court cannot grant a work licence or hardship licence.
Evading police is also classed as a type 1 hooning charge which can have quite severe consequences. For the first Type 1 offence, the vehicle can be impounded or immobilised for 90 days. For the second offence the vehicle can be impounded and may be confiscated at the end of any legal proceedings against you,

I’ve received an evasion notice because my car was involved in a police chase

If the police are unable to intercept the vehicle then they may choose to serve an evasion offence notice on the registered owner of the motor vehicle. If that occurs the owner of the motor vehicle has 14 business days to give a declaration to the police otherwise they will be deemed to be the driver of the vehicle involved in the evasion offence.
It is critical to respond to the evasion notice within the time limits and to get legal advice about that declaration.
We have a full article on what to do if you are served an evasion notice.

Are there any defences to the charge of evading police?

Some possible defences to an evasion charge might be that;
  1. the driver stopped the vehicle as soon as practical
  2. a reasonable person would not have stopped the vehicle in the circumstances
  3. the police officer was not in a police vehicle at the time of the direction to stop
  4. someone else was driving the vehicle
  5. the direction to stop was not given clearly and the driver did not realise they were directed to stop
Lets look at each of those defences in turn.

Defence 1: the driver stopped the vehicle as soon as practical

Whether the driver stopped the vehicle in time is obviously something that will be unique to each case and depends very much on the circumstances.

The courts have said that in relation to similar laws that;

“the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

  • The phrase “reasonably practicable” means something narrower than “physically possible”
  • What is “reasonably practicable” is to be judged on the basis of what was known at the relevant time; and
  • To determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk”
This defence will really come down to looking at all the facts and deciding at the time of the alleged offence did the driver stop as quickly but safely as possible given the road conditions at the time.

Defence 2: a reasonable person would not have stopped the vehicle in the circumstances

It is sufficient evidence of the commission of the offence if the evidence is that the driver, in failing to stop, took action to avoid being intercepted by a police officer.

Defence 3: the police officer was not in a police vehicle at the time of the direction to stop

This pretty obvious. The police officer must be using a police vehicle at the time they tried to stop the other vehicle. A police vehicle is not defined but would likely mean any vehicle owned by the Queensland police service.

Defence 4: someone else was driving the vehicle

Again this is pretty obvious if someone else was the driver then this would be a defence. It is critical to note that where the police have not been able to identify the driver they will serve an evasion notice on the owner of the vehicle. This requires the owner within 14 days to provide a statutory declaration that names the driver or if they claim not to know who the driver then the declaration must cover all of the following:
  • where the owner was when the evasion offence occurred
  • the usual location of the vehicle when it is not being used
  • the name and address of each person (a potential driver) known by the owner to have access to drive the vehicle when evasion offence occurred
  • the way each potential driver has access to drive the vehicle Example—A potential driver possesses a key for the vehicle and has access to where the vehicle is kept
  • how frequently each potential driver normally uses the vehicle and for how long each potential driver normally uses the vehicle
  • whether each potential driver uses the vehicle in connection with a business or for private use
  • whether the vehicle was reported as stolen, or otherwise being used without consent, when the evasion offence happened
  • the nature of the inquiries made by the owner to find out who was driving the vehicle when the evasion offence happened
If they don’t provide this information the owner can be declared the driver and subject to prosecution.

We have a full article on what to do if you are served an evasion notice.

Defence 5: the direction to stop was not given clearly and the driver did not realise they were directed to stop

The law sets out how the police must give a direction to stop. The law states that to give a direction the following must occur:
  • the police officer is in or on a Queensland police service motor vehicle that is being used to attempt to intercept the motor vehicle the driver is driving; and
  • the driver of the police service motor vehicle brings that motor vehicle to a position in relation to the other motor vehicle where the driver or another police officer in or on the police service motor vehicle can give the driver of the other motor vehicle a direction to stop the other motor vehicle; and
  • the police officer signals to the driver of the other motor vehicle to stop the motor vehicle—
    • by giving a physical or audible signal; or
    • by displaying a warning light or warning lights and sounding an alarm.
A warning light is defined as:
  • flashing blue and red lights;
  • a flashing blue light;
  • another flashing light, including alternately flashing headlights and alternately flashing tail-lights.
It is immaterial that the driver had a mistaken belief that the motor vehicle from which the police officer was giving the direction was an emergency vehicle unless the driver proves, on the balance of probabilities, that a reasonable person in the circumstances would have believed the motor vehicle was an emergency vehicle.
An emergency vehicle is listed as any of the following:
  • the Queensland Ambulance Service
  • an ambulance service of another State
  • the Queensland Fire and Emergency Service
  • fire brigade or service of another State.
This is very complicated area of law and you will need legal advice to determine if you have any defences to an evasion charge.

Summary of evading police offence and potential defences

  1. Definition of Evading Police

    • Failure to stop a motor vehicle promptly after a police officer has directed them.
    • Occurs when a driver fails to stop within a reasonable time, evading police.

  2. Penalties for Evading Police

    • Minimum: 50 penalty units or 50 days imprisonment.
    • Minimum 2-year driver’s license disqualification; no work or hardship license available.
    • Classified as a Type 1 hooning charge with additional consequences for repeat offenses.

  3. Evasion Notice for Vehicle Owners

    • If police can’t intercept the vehicle, they may serve an evasion notice on the registered owner.
    • Owner must respond within 14 business days, providing a declaration about the driver’s identity.

  4. Potential Defences:

    • Defence 1: Driver Stopped Promptly

      • Depends on unique circumstances of each case.
      • Courts consider if the driver stopped as quickly and safely as possible given road conditions at the time.

    • Defence 2: Reasonable Person Wouldn’t Have Stopped

      • Sufficient evidence to prove charge if the driver took action to avoid interception by a police officer.

    • Defence 3: Officer Not in Police Vehicle

      • Police officer must be in or near a police vehicle at the time of the direction to stop.

    • Defence 4: Someone Else Was Driving

      • Clear defence if someone else was the driver.
      • If the driver can’t be identified, an evasion notice may be served on the owner.

    • Defence 5: Unclear Direction to Stop

      • Specifies how police must give a direction to stop.
      • Driver’s belief about the police vehicle being an emergency vehicle is immaterial, unless proven reasonable.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;
  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Click here to select a time for us to have a free 15 minute telephone conference with you
  4. Email steven@claritylaw.com.au
  5. Send us a message on Facebook Messenger
  6. Click the help button at the bottom right and leave us a message
We are a no pressure law firm, we are happy to provide free initial information to assist you with information on failure to stop charges and any defences. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission.
If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Need more information?

We have a range of articles on our traffic law blog. Some of the most recent have included:
Charged and unsure what this means for you? This article is general information, not legal advice. For advice on your exact situation, call 1300 952 255 — free, 7am–7pm, 7 days — or visit our Evading police lawyers page.
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