Drink driving – Driving Law

Should I Plead Guilty to a Drink Driving Charge?

Steven Brough — Mon, 20 Jul 2026 10:53:00 +0000

This is one of the first questions people ask us, and the honest answer is: it depends entirely on the facts of your case, and the decision is yours to make. No one can properly answer it for you without reading your charge and the evidence. This page explains what each path involves so you can make an informed decision.

The decision is yours

You have the right to plead guilty or not guilty. A lawyer’s job is to explain your options and the likely consequences of each — not to make the choice for you or pressure you either way. Whatever you decide, you’re entitled to advice first.

What an early guilty plea can mean

If you accept that you committed the offence, pleading guilty — and doing so early — is something the court takes into account at sentence. An early plea is generally treated as a sign of taking responsibility, and courts routinely give it weight when deciding the penalty. It also means your matter is usually finished sooner, rather than being adjourned for a hearing.

Pleading guilty doesn’t mean simply accepting whatever penalty is proposed. There’s still a great deal to be done: presenting your circumstances, your traffic history, any steps you’ve taken (such as a traffic offender program), and arguing for the penalty and disqualification to sit at the appropriate end of the range. That work is where representation makes a practical difference.

When a not guilty plea may be appropriate

Sometimes there are genuine reasons to plead not guilty. These are fact-specific and are not available in most cases — but they do arise, and you shouldn’t dismiss them without advice. They can include:

Whether you were actually driving or in charge of the vehicle.
Identification — whether the police have correctly identified you as the driver.
Whether the breath or blood testing and the surrounding procedure were carried out correctly is a very complex area — whether anything in it affects your case can only properly be assessed by a lawyer reading your QP9 and the evidence.

Whether any of these applies to you can only be assessed by someone reading the QP9 (the police summary) and the evidence. Here’s what a QP9 is and why it matters. Every case turns on its own facts.

What happens on each path

If you plead guilty: your matter can often be dealt with on the first date, or shortly after once your material is prepared. You’re sentenced, and you leave knowing your disqualification and any fine. Here’s what happens at your first court date.
If you plead not guilty: the matter is adjourned, the prosecution provides its brief of evidence, and the case proceeds towards a hearing where the evidence is tested. This takes longer and involves more steps.

How to decide

The right plea depends on what actually happened, what the evidence shows, and your own circumstances. Before you decide, it’s worth having someone read your QP9 and give you a straight assessment of both options. That’s a conversation, not a commitment.

One thing to consider at the same time: if you are eligible for a work licence — available for low or mid range drink driving, or driving with a relevant drug present — the application must be made before you are sentenced. That means the plea decision and the work licence question need to be considered together, not one after the other. If you’re not sure which application applies to you, see work licence vs special hardship order.

Talk it through first

Call us on 1300 952 255, 7am–7pm, seven days. We’ll read your charge, explain both paths honestly, and let you make the decision that’s right for you. We run drink driving matters on a fixed fee of $2,750. See our drink driving page for more.

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 page.

Drink Driving Charges for Tradies in Queensland

Steven Brough — Thu, 23 Apr 2026 12:16:00 +0000

You’re a tradie. You rely on your licence every single day — to get to job sites, pick up materials from Bunnings or the supplier, tow a trailer, drive a work ute between jobs. Then one morning you get pulled over on the way to a job and blow over the limit from the night before. Suddenly your entire livelihood is on the line.

This is one of the most common situations we see at our firm. Tradespeople across Queensland — sparkies, chippies, plumbers, concreters, painters, fencing contractors, landscapers — make up a significant portion of our drink driving clients. The reason is simple: tradies often rely heavily on driving for work, and the consequences of losing a licence hit harder and faster than almost any other job.

You held a current Queensland open licence at the time of the offence. Your BAC reading was below 0.150 (that is, low range or mid range only). You were not driving for work at the time you were caught. You have not had a drink driving conviction, licence suspension, or disqualification in the last five years. You have not previously been granted a work licence in the last five years.

You cannot get a work licence if:

Your reading was 0.150 or above (high range / DUI). You held a provisional or learner licence. You were driving a vehicle subject to the zero alcohol limit for work (heavy vehicle, taxi). You refused or failed to provide a breath or blood sample. You have a prior drink driving conviction or suspension within the last five years.

The Tradie-Specific Work Licence Trap

There is an important eligibility rule that catches many tradies off guard: you cannot apply for a work licence if you were driving for work at the time you were charged.

However, there are exceptions. If driving is not the primary component of your job — for example, you are a labourer who drives to a work site, or a fencing contractor who picks up materials to use on site — you may still be eligible. The distinction is between someone whose job is driving (delivery driver, courier, truck driver) versus someone who drives to and for their job (electrician, plumber, carpenter). Most tradies fall into the second category and can still apply.

What a Work Licence Application Requires

A work licence application is not a simple form. You must provide the court with:

A sworn affidavit from yourself covering your personal circumstances, your work duties and the driving they require, your financial situation, and why losing your licence will cause extreme hardship by depriving you of your means of earning a living.

An application form (Form F3181) filed with the court and served on the police prosecution unit before your court date.

The affidavits must be in the correct format, contain all the necessary information, and be properly witnessed. One of the main reasons work licence applications are refused by magistrates is that the affidavits are incomplete or badly prepared. This is an area where having a lawyer prepare them properly is critical.

If the court grants a work licence, the magistrate may also increase the disqualification period — potentially up to double what it would have been without the work licence. Skilled legal submissions can significantly reduce this uplift.

Self-Employed Tradies

If you are a sole trader or run your own business, you still need to demonstrate to the court that losing your licence will cause extreme hardship. You will need to show your business structure, income, expenses, and explain in detail what driving is required for your work. Sole traders do not need an employer affidavit but the personal affidavit needs to be especially thorough.

Alcohol Interlocks — What Happens When You Get Your Licence Back

Once your disqualification period ends, you may need to have an alcohol interlock device fitted to your vehicle before you can drive again. An interlock is a breathalyser wired into your ignition — you must blow into it and return a zero reading before the vehicle will start.

Your reading was mid range (0.100 to 0.149) or high range (0.150 and above). This is your second or subsequent drink driving conviction within 5 years.

The interlock requirement is a Queensland Transport licensing condition, not a court order. The court has no discretion to exempt you from it.

What Interlocks Mean for Tradies

For tradies, the interlock creates practical complications. The device must be fitted to any vehicle you drive. If you drive a work ute or company vehicle, the interlock needs to go in that vehicle. If you share a work vehicle with colleagues, this becomes a logistical issue you need to discuss with your employer.

The interlock also requires regular servicing appointments. You need to take the vehicle to an approved interlock provider at set intervals during the 12-month period.

Yes. In Queensland, a period of disqualification is mandatory for all drink driving convictions. Even a first-time low range offence carries a minimum 1-month disqualification. However, if you are eligible, a work licence may allow you to keep driving for work purposes during that period.

I'm a subcontractor — can I still get a work licence?

Yes. Work licences are available to both employed and self-employed people. As a subcontractor, you will need to provide a thorough affidavit explaining your business, the driving required, and the financial impact of losing your licence. You do not need an employer affidavit, but your own affidavit needs to be especially detailed.

I drive a company vehicle — what happens with the interlock?

If you are required to have an interlock fitted, it must be installed in any vehicle you drive. You will need to discuss this with your employer. The interlock is a Queensland Transport licensing condition and cannot be avoided for employment reasons.

Can I get a work licence for a high range reading?

No. If your BAC was 0.150 or above, you cannot apply for a work licence in Queensland. This is one of the most devastating consequences for tradies — a high range reading means you will be off the road entirely for your full disqualification period with no ability to drive for work.

I got caught on the way to a job site at 6am — was I driving for work?

This depends on the specific circumstances. Driving to a job site is generally considered commuting, not driving for work in the legal sense. The restriction on work licence eligibility applies to people whose job is primarily driving — like truck drivers or couriers — not tradespeople who happen to be travelling to a work site. Your lawyer can advise on your specific situation.

How much does a drink driving lawyer cost?

At Driving Law, we charge a fixed fee quoted upfront. For a first-time drink driving guilty plea the fee is $2,750. A work licence application (which includes the guilty plea) is $2,990. See our full pricing page for details.

Talk to Us

If you are a tradie charged with drink driving in Queensland, the most important thing you can do is get advice before your court date. We handle drink driving matters in every court in South East Queensland — from Southport to Hervey Bay, Brisbane to Ipswich, Caboolture to Maroochydore, and every court in between.

Since 2010 we have helped thousands of Queenslanders through drink driving charges. We handle everything — we’ll prepare your work licence affidavits, represent you in court, and make the submissions that give you the best chance of keeping your livelihood.

Call us on 1300 952 255 — 7am to 7pm, 7 days a week. Or request a free callback and we will get back to you at a time that suits. You can also book a free 15-minute phone conference directly.

This article is general information only and not legal advice. It is written subject to our disclaimer. Liability limited by a scheme approved under professional standards legislation.

For advice about your own situation, speak with our drink driving lawyers — call 1300 952 255, 7am–7pm, 7 days.

Navigating Drink Driving Charges in Queensland’s Children’s Court

Steven Brough — Wed, 17 Jul 2024 07:27:00 +0000

drink driving Understanding charges in the Children’s Court in Queensland can be daunting for parents and children alike. This guide will shed light on the legal framework, steps to take after a charge, and how to best support your child through this challenging time.

An Introduction to Drink Driving Charges

Being charged with drink driving is a serious matter, especially for minors. In Queensland, the Children’s Court handles cases involving individuals under 18. It’s crucial to understand the implications of these charges and the potential impact on your child’s future.

Drink driving charges can lead to significant consequences, including licence disqualification and fines. For parents, this situation can be stressful and overwhelming. However, with the right information and support, you can help guide your child through the legal process and work towards a positive outcome.

This guide aims to provide a comprehensive overview of the legal framework surrounding drink driving charges for minors, the steps to take after a charge, and how to avoid licence disqualification.

Legal Framework for Drink Driving Charges

Understanding the Laws

In Queensland, the laws related to drink driving are stringent, especially for minors. The legal blood alcohol concentration (BAC) limit for drivers under 18 is zero. This means that any detectable amount of alcohol in a minor’s system while driving will result in a charge of drink driving.

Penalties for Minors

The penalties for drink driving vary based on

The severity of the offence
Whether the individual has prior convictions
The BAC reading
Whether any person was injured
Whether any property was damaged

Common penalties include fines, community service, and licence disqualification.

The Children's Court

The Children’s Court in Queensland deals with cases involving minors. Under the Youth Justice Act, minors found guilty of drink driving offences face similar penalties to adults, including licence disqualification. However, the court recognizes the need to treat minors differently and offers alternative measures to help rehabilitate them.

Steps to Take After a Drink Driving Charge

Immediate Actions

If your child has been charged with drink driving, it’s essential to act quickly. The first step is to seek legal advice from a qualified lawyer experienced in handling cases involving minors. They can provide guidance on the best course of action and help protect your child’s rights.

Legal Representation

Having a lawyer represent your child in court is crucial. A skilled lawyer can negotiate with the prosecution, present evidence in your child’s favour, and work towards a reduced sentence or alternative measures such as restorative justice.

Support Options

In addition to legal representation, it’s important to provide emotional support for your child. Facing a drink driving charge can be a distressing experience, and having a supportive family can make a significant difference. Encourage open communication and seek professional counselling if needed.

Understanding Licence Disqualifications

Mandatory and Discretionary Disqualifications

In Queensland, certain offences attract mandatory licence disqualifications, while others allow for judicial discretion. For example, high-range drink driving results in a mandatory disqualification, while careless driving may not.

Youth Justice Act and Disqualifications

Under the Youth Justice Act, minors found guilty of offences that would result in disqualification if committed by an adult must also face disqualification. However, there are ways to potentially avoid this outcome.

Ways to Avoid Licence Disqualification

Police Caution

If the police caution a minor for an offence that could lead to disqualification, no disqualification will be imposed. This measure is often applied for first-time offenders or less severe cases.

Restorative Justice

Restorative justice is an alternative approach that focuses on repairing the harm caused by the offence. It involves a meeting between the offender and the victims to discuss the impact of the crime and agree on steps to make amends. If a minor is referred to restorative justice, they can avoid licence disqualification.

Magistrate Referral

A magistrate can refer a minor to restorative justice even if the police did not. This can help avoid licence disqualification and focus on rehabilitation.

The Role of Restorative Justice

A Transformative Approach

Restorative justice offers a way to address the consequences of the offence while promoting rehabilitation. It helps minors understand the impact of their actions and encourages them to take responsibility.

Benefits of Restorative Justice

Restorative justice can lead to better outcomes for minors by focusing on healing and making amends. It also reduces the likelihood of reoffending and helps integrate the offender back into the community.

Case Example

Consider a case where a minor charged with dangerous driving and drink driving faced a potential nine-month licence disqualification. With skilled legal representation, the magistrate referred the case to restorative justice, avoiding disqualification and allowing the minor to retain their job.

How Clarity Law Can Help

Expert Legal Advice

At Clarity Law, we are experts in handling cases involving minors and traffic offences. Our team has extensive knowledge of the Youth Justice Act and can provide expert legal advice tailored to your child’s situation.

Successful Outcomes

We have a track record of achieving positive outcomes for our clients. Our intimate knowledge of the legislation and cases around children’s court disqualifications enables us to effectively advocate for alternative measures like restorative justice. Its important to note that many young people need to drive for work or school.

The children’s court cannot issue a work licence so there will be at least a 3 month licence disqualification unless the court is persuaded to order restorative justice or other alternative sentencing regime.

Personalized Support

We understand the unique challenges faced by minors charged with drink driving offences. Our compassionate approach ensures that your child receives the support they need throughout the legal process.

Conclusion

Navigating drink driving charges in the Children’s Court in Queensland can be challenging, but with the right information and support, you can help your child achieve a positive outcome. Understanding the legal framework, taking immediate action, and exploring alternatives like restorative justice are key steps in this process.

At Clarity Law, we are committed to providing expert legal representation and personalized support for minors facing drink driving charges. Contact us today to learn more about how we can help your child.

Next Steps

If your child is facing a drink driving charge, don’t wait. Reach out to Clarity Law for expert legal advice and support. We are here to help you every step of the way

Contact Us

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

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.

Penalties for Drink and Drug Driving Charges in Queensland

Steven Brough — Wed, 10 Jul 2024 05:57:00 +0000

From 1 December 2026: Queensland introduces a combined drink and drug driving offence with its own penalties. If your offence date is on or after 1 December 2026, call us on 1300 952 255 to check how the change affects your matter.

Drink-driving charges must be dealt with in the Magistrates Court. If you are charged with a drink-driving offence, you will get a Notice to Appear (which lists the charge and the date you must attend court). You also receive a certificate stating either the concentration of alcohol detected in your blood or saliva, or what drug(s) was found in your system. Lastly, you will receive a notice from police advising you that your drivers licence is suspended: either for 24 hours or until your matter is finalised at court.

Below, we discuss the consequences of being charged with, and being convicted of, a drink-driving, or drug-driving charge.

24-Hour or Immediate Drivers Licence Suspension

If you have been charged with a low-range, drink-driving charge (0.05 – 0.99% blood-alcohol concentration), your drivers licence will be suspended for 24 hours from the time you are charged. You will be given a Notice of Suspension from the police, which will tell you exactly when this period of suspension starts, and when this suspension ends.

If you are charged with either mid-range drink driving (0.1 – 0.149% blood-alcohol concentration) or high-range drink driving (0.15% blood-alcohol concentration or higher), your drivers licence is suspended immediately and the suspension remains in place until your matter is finalised in court. This period of suspension remains in place even if you adjourn your matter or plead not guilty to the charge and go to trial. Furthermore, this period of suspension only counts to the final licence disqualification if the magistrate determines that you ought to be disqualified from driving for a period longer than the minimum period set out in the legislation (and discussed below). In other words, the magistrate cannot subtract the period of licence suspension from the mandatory minimum.

However, if there is a risk that you will lose your employment (or your business, if you are self-employed), then you may apply for a temporary, restricted drivers licence while your matter is being heard in court. These temporary drivers licences are similar to a “work licence”, operate in a similar way, and have similar criteria that you must satisfy in order to get one. The main difference with these temporary drivers licences and a work licence is that (a) you must apply for them within 21 days from the date your drivers licence was suspended and (b) they expire once your matter has been finalised by the court.

In practical terms, these applications are best made if (a) you are going to plead not guilty to the drink-driving charge and go to trial, or (b) your matter will otherwise remain in court for a long period of time (because you want to negotiate with the police prosecutor, etc).

Pleading Guilty to Drink-Driving Charges

If you plead guilty to a drink-driving charge, the only task for the court is to impose penalties. In summary, drink-driving offences require the court to impose both the “standard” criminal penalties (fines, probation, imprisonment, etc) and a period of disqualification from driving. Queensland’s traffic legislation sets out a series of mandatory maximum criminal punishments and a set of mandatory periods of disqualification from driving. The criteria for what sort of punishment and disqualification from driving are twofold: firstly, the nature of the offence (low-range, mid-range, or high-range drink driving) and secondly, whether or not you have committed certain offences in the previous 5 years. For convenience, the following table sets out the constellation of maximum punishments and range of licence disqualifications as prescribed by law:

Driving under the Influence of Liquor or Drugs

Any Previous Convictions in the Last 5 years?

Maximum Penalty

No previous convictions

Fine of $4,334.00 or 9 months’ imprisonment.

6 months – permanent disqualification.

One previous conviction for either high-range drink driving or dangerous operation of a motor vehicle.

Fine of $9,288.00 or 18 months’ imprisonment.

1 year – permanent disqualification.

More than one previous convictions for either high-range drink driving, or an indictable offence involving a motor vehicle, or dangerous operation of a motor vehicle

Mandatory imprisonment (however imposed).

2 years – permanent disqualification.

One previous conviction for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $4,644.00 or 1 year’s imprisonment.

9 months – permanent disqualification.

More than one previous conviction for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $9,288.00 or 18 months’ imprisonment.

1 year – permanent disqualification.

Mid-Range Drink Driving

Any Previous Convictions in the Last 5 years?

Maximum Penalty

Range of Licence Disqualification

No previous convictions

Fine of $3,096.00 or 6 months’ imprisonment.

3 months – 12 months.

One previous conviction for either high-range drink driving, or an indictable offence involving a motor vehicle, or dangerous operation of a motor vehicle

Fine of $4,644.00 or 1 year’s imprisonment.

9 months – permanent disqualification.

One previous conviction for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $3,096.00 or 6 months’ imprisonment.

3 months – 18 months.

Two previous convictions for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $4,334.00 or 9 months’ imprisonment.

6 months – permanent disqualification.

One previous conviction for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving and one previous conviction for either high-range drink driving, or an indictable offence involving a motor vehicle, or dangerous operation of a motor vehicle.

Fine of $9,288.00 or 18 months’ imprisonment.

1 year – permanent disqualification.

Low-Range Drink Driving

Any Previous Convictions in the Last 5 years?

Maximum Penalty

Range of Licence Disqualification

No previous convictions

Fine of $3,096.00 or 6 months’ imprisonment.

1 month – 9 months

or

3 months – 9 months for learner, provisional or probationary drivers licences.

One previous conviction for either high-range drink driving, or an indictable offence involving a motor vehicle, or dangerous operation of a motor vehicle

Fine of $4,644.00 or 1 year’s imprisonment.

9 months – permanent disqualification.

One previous conviction for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $3,096.00 or 6 months’ imprisonment.

3 months – 18 months.

Two previous convictions for either mid-range drink drive, low-range drink drive, driving with a relevant drug, or zero-alcohol drink driving.

Fine of $4,334.00 or 9 months’ imprisonment.

6 months – permanent disqualification.

Fine of $9,288.00 or 18 months’ imprisonment.

1 year – permanent disqualification.

Driving with a Relevant Drug Present in the Saliva or Blood*

*Penalties are the same as low-range drink driving.

Zero-Alcohol Drink Driving (eg P Platers or unlicenced)*

*Penalties are the same as low-range drink driving but the minimum disqualification starts at 3 months

Please note that this table does not include driver licence disqualifications for other offences (such as dangerous operation of a motor vehicle, marine-related drink-driving offences, etc). It also does not include driver licence disqualification periods if you apply for a work licence (as these periods may double if a work licence is granted).

Please also note that the reference to fines or imprisonment can also include community-based orders such as probation and community service orders. These types of penalty sit between fines and imprisonment in the hierarchy of punishments.

When the court decides the period of disqualification from driving, it must take into account:

The blood-alcohol concentration or presence of a relevant drug; and
The danger to the public (real or potential) that the circumstances of each case presented.

These penalties (including disqualification from driving) are imposed as a the date of conviction (ie, from the date you either plead guilty or are found guilty). As already mentioned, any period of drivers licence suspension you served prior to conviction can only be taken into account if the court considers that you ought to receive a period of licence disqualification longer than the legislated minimum.

Conclusion

As you can see, the legislative scheme for dealing with drink-driving charges is complex and can be confusing. The penalties for drink-driving can also be severe. That is why it is important to get expert legal advice before facing court.

Contact Us

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

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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.

For advice about your own situation, speak with our drink driving lawyers — call 1300 952 255, 7am–7pm, 7 days.

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 page.

Imprisonment for Drink Driving in Queensland

Steven Brough — Fri, 24 May 2024 11:01:00 +0000

Navigating the legal landscape after a drink driving charge can be daunting, with the consequences in Queensland being particularly severe. As a law firm dedicated to providing expert legal advice and support, Clarity Law is here to offer a comprehensive guide on what you need to know about imprisonment for drink driving in Queensland. While imprisonment for drink driving is rare there are circumstances when the court might impose a prison sentence.

Understanding Drink Driving Laws in Queensland

In Queensland, drink driving offences are treated with utmost seriousness due to their potential impact on road safety. The penalties can range from fines and license disqualification to, in the most severe cases, imprisonment. Understanding these laws is crucial for anyone facing a drink driving charge.

Factors Influencing Penalties

Several factors influence the severity of penalties for drink driving offences, including:

BAC Level: Blood Alcohol Concentration (BAC) levels play a significant role. Higher BAC levels result in harsher penalties.
Repeat Offences: Prior drink driving convictions can lead to more severe penalties.
Circumstances of the Offence: Aggravating factors such as causing an accident or having passengers in the vehicle can increase penalties.

When Does Imprisonment Become a Possibility?

Imprisonment is considered a last resort for drink driving offences, but under certain conditions, it can become a reality. These include:

High BAC Levels

If a driver has a BAC level significantly above the legal limit, particularly those classified under high-range drink driving (0.15% BAC and above), the courts may impose imprisonment, though usually if it is not the first offence or an accident was involved.

Repeat Offenders

For individuals with prior drink driving convictions, the likelihood of facing imprisonment increases. The court may impose a custodial sentence to deter repeat offences and protect public safety.

The law in fact mandates imprisonment must be imposed if this is your third high range drink driving charge in 5 years.

Aggravating Circumstances

Certain scenarios can aggravate the severity of the offence, leading to imprisonment. These include:

Causing an Accident: Drink driving leading to an accident, especially one resulting in injury or death, significantly increases the chances of imprisonment.
Driving with Passengers: Having passengers, particularly minors, in the vehicle at the time of the offence can lead to harsher penalties.

The Legal Process: What to Expect

Facing a drink driving charge can be overwhelming, but understanding the legal process can provide some clarity and preparation.

Initial Arrest and Charge

Upon being charged with drink driving, you will be required to appear in court. The specifics of this process vary depending on the severity of the offence and whether it is a first-time or repeat offence.

If you are charged with mid range or high range the police will also immediately suspend your drivers licence.

Court Appearance

During your court appearance, the magistrate will consider various factors, including:

BAC Level: The higher your BAC, the more severe the penalty.
Previous Convictions: Prior offences will weigh heavily against you.
Circumstances: Aggravating factors such as accidents or endangering passengers will be taken into account.

Legal Representation

Having expert legal representation is crucial. At Clarity Law, our experienced traffic lawyers will guide you through the process, ensuring your rights are protected and presenting the best possible case on your behalf.

Mitigating Factors: Reducing the Risk of Imprisonment

There are several ways to potentially reduce the severity of the penalty, including avoiding imprisonment:

Early Guilty Plea

Entering an early guilty plea can sometimes result in a reduced sentence. It demonstrates remorse and a willingness to accept responsibility for your actions. Always seek legal advice before pleading guilty.

Character References

Providing character references from employers, community leaders, or other respected individuals can help portray you in a positive light, potentially influencing the court’s decision.

Rehabilitation Programs

Participation in alcohol education or rehabilitation programs can demonstrate a commitment to addressing the underlying issues leading to drink driving. This can be a significant mitigating factor in sentencing.

Attending a traffic offenders program like QTOP is also strongly encouraged.

Will I go to prison for Drink Driving?

The main factors in determining if someone will be imprisoned for drink driving is the BAC reading, if an accident occurred or someone was hurt and the traffic history of the driver.

First or even second time offenders without a crash or very high reading generally wouldn’t be imprisoned.

The other factor is even if the court does sentence someone to imprisonment it doesn’t mean they will serve time in prison. The court can decide to release the person immediately or suspend the whole of the imprisonment for the drink driving charge.

Professional Legal Advice

Engaging a knowledgeable traffic lawyer from Clarity Law can make a substantial difference in the outcome of your case. Our team will work tirelessly to present mitigating factors and argue for a lesser penalty on your behalf.

Conclusion: Navigating the Complexities of Drink Driving Charges

Drink driving charges, particularly those that can lead to imprisonment, are serious. However, with the right knowledge and legal support, you can navigate this challenging situation more effectively.

At Clarity Law, our mission is to provide expert legal guidance and representation to those facing drink driving charges in Queensland. Our extensive experience in traffic law ensures that you receive the best possible advice and support, tailored to your specific circumstances.

If you or someone you know is facing a drink driving charge, don’t navigate it alone. Reach out to Clarity Law today for a confidential consultation and let our expert team guide you through the complexities of the legal process.

Contact Us

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

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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.

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.

Repeat Drink Driving Offences in Queensland

Steven Brough — Thu, 23 May 2024 07:32:00 +0000

Introduction

Drink driving remains a serious offence in Queensland, with strict laws in place to deter drivers from getting behind the wheel under the influence of alcohol. However, when it comes to repeat drink driving offences, the penalties escalate significantly, reflecting the heightened risk and potential harm to the community. This guide aims to shed light on the consequences of repeat drink driving offences in Queensland and why securing legal advice is crucial for anyone facing such charges.

What Constitutes a Repeat Drink Driving Offence?

A repeat drink driving offence occurs when an individual is charged with drink driving more than once within a specified period. In Queensland, this period is typically five years. Repeat offenders face harsher penalties compared to first-time offenders, as the law assumes that they have not learned from their previous mistakes and continue to pose a risk on the roads.

Consequences of Repeat Drink Driving Offences

Increased Fines

Repeat drink driving offenders can expect to face substantial fines. The exact amount depends on several factors, including the level of blood alcohol concentration (BAC) at the time of the offence and the number of prior offences. For instance, a second offence might attract a fine in the range of $1,500 to $2,000, while subsequent offences could see fines exceeding $2,500.

Longer Licence Disqualifications

One of the most immediate and impactful penalties for repeat drink driving is licence disqualification. The duration of disqualification increases with each subsequent offence as the minimum disqualification imposed by law increases. Further offences could lead to indefinite disqualification, significantly affecting one’s mobility and employment prospects.

Mandatory Imprisonment

Queensland law stipulates a mandatory prison term for people who have 3 high range drink driving charges within 5 years.

Alcohol Ignition Interlock Program

Repeat offenders are usually required to participate in the Alcohol Ignition Interlock Program. This program mandates the installation of an interlock device in the offender’s vehicle, which requires the driver to provide a breath sample before the vehicle can start.

Impact on Employment and Personal Life

The consequences of repeat drink driving extend beyond legal penalties. Licence disqualification can lead to job loss, especially for those whose employment depends on driving. This is especially true for repeat drink drivers as the law states that you cannot apply for a work licence if you have had another drink driving charge within 5 years.

Why Good Legal Advice is Essential

Given the severe consequences of repeat drink driving offences, obtaining sound legal advice is critical. An experienced traffic lawyer can provide invaluable assistance in minimising the penalty. Repeat drink driving offences in Queensland carry severe consequences. Increased fines, longer licence disqualifications, mandatory imprisonment, and participation in the Alcohol Ignition Interlock Program are just some of the penalties that repeat offenders can face. However, with the right legal advice, it is possible to navigate these challenges effectively and achieve a more favourable outcome.

If I contacted you what would occur?

If you contact us, then Steven Brough the firm’s founder or our office manager Belinda Smyth will take the call or receive the email or contact form. They have over 50 years legal experience between them, we can provide immediate legal assistance and answer any questions you have. We will discuss your case, provide guidance and send a quote by email with additional relevant information about your charge, all at no cost.

If you want to engage us then it’s easy, there is a form you can complete online in less than 15 minutes. If you don’t want to engage us or want to engage another firm that’s fine, you won’t be hassled and at worst you will just have more information about your charge. Once engaged one of our lawyers will go through your matter and contact you to discuss what the best way forward is to achieve the best results. Every one of our lawyers are very experienced with many hundreds of courts appearances for drink driving charges each.

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.

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;

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

We have a range of articles on drink driving on our traffic law blog. Some of the most recent have included:

Queensland Drink Driving (2024)
Top 5 Drink Driving Myths
The Essential Guide to Obtaining a Work Licence
How Drink Driving Matters are Heard in Queensland
What happens after your drivers licence is disqualified?
Refusing a Breathalyser Test in Queensland
Can you commit a drink driving offence in your driveway?
Immediate suspension for drink driving
Special Hardship Orders v Work Licences
High Range DUI
Going through a drink driving charge in Brisbane Magistrate Court
DUI Charges
Ultimate Guide to High Range Drink Driving
Can you beat a DUI?
Navigating Drink Driving Charges in Queensland: Top 5 Do’s and Don’ts
Disqualification vs Suspension, what is the difference in Queensland?
The True Cost of a Drink Driving Conviction in Queensland
Will I get a criminal conviction for a drink driving charge?

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.

Finding a Drink Driving Lawyer in Bundaberg

Steven Brough — Tue, 21 May 2024 04:48:00 +0000

Facing a drink driving charge in Bundaberg can be a daunting experience, but having the right legal representation can make a significant difference in the outcome of your case. With numerous lawyers offering their services, finding the best one for your situation requires careful consideration and research. Here are some essential steps to help you find the right drink driving lawyer in Bundaberg to defend you against a drink driving charge:

At Clarity Law, we understand the serious consequences that a drink driving charge can have on your life, including potential fines, license disqualifications and more. With our team of experienced lawyers dedicated to traffic and DUI matters, we have successfully represented numerous clients throughout Queensland, achieving favourable outcomes and helping them navigate the legal process with confidence.

Our expertise in drink driving cases, combined with our in-depth knowledge of Queensland’s traffic laws and legal procedures, allows us to provide personalised and effective representation tailored to your unique circumstances. We prioritize communication, transparency, and client satisfaction, ensuring that you are fully informed and supported every step of the way.

Check out our blog with over 115 articles all about traffic laws in Queensland and our Guide to Drink Driving charges in Queensland in 2024.

With Clarity Law on your side, you can trust that your case will be handled with the utmost professionalism and diligence, with the goal of minimizing the impact of a drink driving charge on your life and future. Contact us today for a free consultation and let us help you achieve the best possible outcome for your case.

What do you charge?

We charge a flat upfront fee for our services, that means no hidden charges or unexpected bills.

We are upfront with our fees, if you look at other law firms few, if any, clearly list how much they are going to charge you. Clarity Law on the other hand are happy to list our prices as

Our prices include;

full preparation for court including checking for defences and devising strategy to minimise penalty
Contacting the prosecution unit to obtain your traffic history, charge documents and a copy of the prosecutor court brief (QP9) so we know what the prosecutor will tell the court occurred
drafting submissions for the court
arranging for you to attend a driving course (if appropriate)
all telephone calls, emails and meetings with you
detailed information to you on the likely penalty and information on what will happen at court and afterwards
appearing in the court with you for your guilty plea to the drink driving charge

We know there are a lot of DUi lawyers Bundaberg so we will work hard to prove we are your best option.

Click here to see what we charge or see below for our current prices for a first time drink driving offence.

Work Licence (includes price of guilty plea)

$2,990

Drink Driving – Low range

$2,750

Drink Driving – Mid range

$2,750

Drink Driving – High range

$2,750

If I contacted you what would occur?

If you contact us then Steven Brough the firm’s founder or our office manager Belinda Smyth will take the call or receive the email. They have 45 years legal experience between them, we can provide immediate legal assistance and answer any questions you have. We will discuss your case, provide guidance and send a quote by email with additional relevant information about your drink driving charge, all at no cost.

If you want to engage us then it’s easy, there is a form you can complete and email back or complete online. If you don’t want to engage us or want to engage another firm that’s fine, you won’t be hassled and at worst you will just have more information about your charge. Once engaged one of our lawyers will go through your matter and contact you to discuss what the best way forward is to achieve the best results. Every one of our lawyers are very experienced with thousands of courts appearances between them and they know the Caloundra courts and the magistrates and prosecutors.

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;

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to call you back
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger

For drivers in the Bundaberg and Wide Bay region, our nearest office is in Hervey Bay — call 1300 952 255 and we’ll arrange representation for your court date.

For advice about your own situation, speak with our drink driving lawyers — call 1300 952 255, 7am–7pm, 7 days.

How Drink and Drug Driving Laws Affect Truck Drivers in Queensland

Steven Brough — Mon, 20 May 2024 07:42:00 +0000

Introduction

For truck drivers, a single misstep of being charged with a traffic offence can have far-reaching consequences, not only for their careers but also for their personal lives.

Among the most serious traffic offences are drink and drug driving. These offences carry severe penalties and can devastate a truck driver’s livelihood. This blog post delves into the implications of these laws, offering insights and practical advice for truck drivers charged with drink or drug driving in Queensland.

The Seriousness and Implications of Drink and Drug Driving in the Trucking Industry

Truck drivers hold a unique position on the roads, responsible for operating large vehicles that require heightened skill and concentration. Consequently, the laws governing their conduct, especially pertaining to drink and drug driving, are stringent.

The Queensland government has enacted some of the toughest legislation to deter and penalize drink and drug driving, reflecting the gravity of these offences. For truck drivers, understanding these laws is crucial to safeguarding their careers and ensuring road safety.

Specific Laws and Penalties for Drink and Drug Driving in Queensland

Drink Driving Laws

In Queensland, the legal blood alcohol concentration (BAC) limit for truck drivers is 0.00%. This zero-tolerance policy underscores the responsibility truck drivers bear. If a truck driver is found to have a BAC over this limit, they face significant penalties, including:

Fines

Immediate licence suspension

Disqualification by the courts

Drug Driving Laws

Drug driving laws are equally stringent. There are two primary offences related to drug driving:

Licence Disqualification and Employment Consequences

The immediate consequence of a drink or drug driving charge is often the disqualification of the driver’s licence. For truck drivers, whose livelihood depends on their ability to drive, this can be catastrophic. A disqualified licence means an inability to work, resulting in loss of income and potential job termination.

See below for more information on work licences.

Long-term Career Implications

Even after serving the suspension period, the long-term effects linger. A criminal record can make it challenging to secure future employment within the trucking industry, as employers often conduct background checks.

In Queensland a conviction for a drink or drug driving charge is not recorded on a person’s criminal history but can be recorded on their traffic history. Given most employers would want to see a drivers traffic history if they apply for a job this can be a serious impediment to gain employment.

The recording of a conviction is not mandatory, it is up to the Magistrate to decide whether to record a conviction or not. Section 12(1) of the Penalties and Sentences Act provides that the court may exercise a discretion to record a conviction or not.

In considering whether or not to record a conviction, the court must have regard to all circumstances of the case, including:

the nature of the offence; and
the offender’s character and age; and
the impact that recording a conviction will have on the offender’s economic or social wellbeing; or chances of finding employment.

The law is in place as it recognises that the recording of a conviction can have a huge impact on a person even years after the offence has been resolved in court.

How does the Magistrate decide whether to record a conviction?

Section 12 is not exhaustive which means the court must consider the factors in section 12 but can consider other things as well.

Generally the court will be looking at:-

The nature of the offence

This is fairly obvious the more serious an offence the more likely a conviction will be recorded. With drink driving the court will look at the BAC reading and whether any accident occurred.

The offender’s character and age;

Younger offenders are more likely not to have a conviction recorded for a drink driving charge. This does not mean older offenders will automatically have a conviction recorded as an offenders character is also taken into account. Character would usually be judged on a persons traffic and criminal history (if any).

The impact that recording a conviction will have on the offender

The impact of the recording of a conviction must be taken into account by the court. Given the conviction is going to be recorded on the traffic and not criminal history a person would have to show how a traffic conviction will impact them negatively. A truck driver who if they get a conviction recorded their employer will fire them or they will find it hard to get employment in the future would have an argument why a conviction should not be recorded as trucking companies would likely ask new applicants for a job to show them their traffic history.

In the past the courts have generally considered they should record a conviction for a traffic offences however the cases of Wilson v Commissioner of Police & Clinton v Commissioner of Police have shown that a magistrate cannot simply automatically record a conviction for drink driving without properly considering the factors in section 12.

Learn more about the recording of a conviction for drink driving charges.

Getting a Work Licence

A truck driver who is charged with drug or drink driving would obviously be looking at whether they could apply for a work licence to keep driving.

Where a person was driving a truck, a bus, an articulated motor vehicle, a B-double or a road train at the time they were arrested the law does not allow them to apply for a work licence at all. The truck is defined as any truck with a GVM over 4.5t.

If a person was arrested while driving a motor vehicle but needs a work licence to earn an income as a truck driver then they may be able to apply for a work licence.

There are strict rules relating to work licences so go to our dedicated work licence page to learn more.

Conclusion

Compliance with drink and drug driving laws is crucial for truck drivers, not only for their safety but also for their professional and personal well-being. The stakes are high, and the consequences of a violation are severe.

At Clarity Law, we are committed to helping truck drivers through these difficult times with expert legal advice and representation. Our team understands the unique challenges faced by truck drivers and is here to provide the support and guidance needed to protect your career and livelihood. If you or someone you know is facing drink or drug driving charges, don’t hesitate to contact us for a consultation.

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;

Use our contact form and we will contact you by email or phone
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to book a teleconference at a time that suits you
Email our firms founder at steven@claritylaw.com.au
Send us a message on Facebook Messenger

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 or drug driving. You won’t be chased or hounded to engage us. Remember its critical you get advice before going to court, a drug driving charge will have an impact on you, your family and your employment or business.

Drink Driving on a Boat — What is the Penalty?

Steven Brough — Fri, 09 Feb 2024 07:47:00 +0000

It is possible to commit what is (somewhat misleadingly) called “drink-driving” offences in a variety of ways. For example, it is possible to be convicted for driving with alcohol in your system, or while trying to get your car started, or while merely “in charge” of your car. Similarly, it is possible to commit “drink-driving” offences on other types of transport such as horses, bicycles, trains, trams, Lime scooters, and boats.

When a person commits a drink-driving offence while driving a “motor vehicle”, Queensland’s traffic legislation dictates to the court for how long the person must be disqualified from driving. The legislation states that both low-range (ie, 0.05 – 0.99 BAC) and mid-range (0.10 – 0.14 BAC) drink-driving offences have minimum and maximum periods of disqualification. The court must take away that person’s licence for a period somewhere between the minimum and maximum. High-range drink-driving offences (0.15 BAC and above) only have minimum periods of disqualification. The court cannot override these periods dictated by the legislation.

Furthermore, the period of disqualification must commence from the date of conviction. The court cannot “back date” the period of disqualification to the date of the offence, nor set the date of disqualification to a future date.

However, as stated, these mandatory periods of disqualification from driving only apply to offences committed “in relation to a motor vehicle”. Here is where it gets technical. The transport legislation gives certain words and phrases used in the legislation specific definitions. These definitions do not necessarily conform to the ordinary meaning of these words and phrases.

What about Boats and Other Watercraft?

A “motor vehicle” is defined as “a vehicle propelled by a motor that forms part of the vehicle and includes a trailer attached to the vehicle …” A “vehicle” includes “any type of transport that moves on wheels and a hovercraft but does not include a train or tram”. It is clear from this definition that boats, and other watercraft, are not covered by the definition of a “motor vehicle”.

Therefore, the mandatory periods of licence disqualification do not apply to offences committed on boats.

However, the legislation that deals with marine licences does give the court power to disqualify a person’s “licence” for any drink-driving offence committed that involved the use of a “ship”. It is important to note that the “licence” that is subject to the disqualification is the person’s marine licence, not their drivers licence.

The definition of “ship” is unusually expansive and includes “any kind of boat or vessel used, or intended to be used, in navigation by water or for any other purpose on water”. It also includes “a boat or vessel – whatever its size; and however it is propelled or moved; and whether it is on land or in water”. A recreational boat clearly falls within this technical definition of “ship” used for the purposes of the licencing legislation.

Unlike “motor vehicle” offences, the court’s power to disqualify is discretionary: it is not required to take away the person’s licence. If the court does choose to disqualify the person’s licence, it may decide how long the disqualification is for, and when the disqualification is to start. In deciding whether to disqualify the person’s marine licence, the court must be satisfied that doing so is “in the interests of marine safety”.

Should the Court decide that the interests of marine safety are served by imposing disqualifying the person’s marine licence, the court must make the disqualification having regard to “the nature of the offence; the circumstances in which the offence was committed; and the real or potential danger to other persons operating or aboard ships and the public generally;” and whether the person committed any drink-driving offences on a “ship” in the last 5 years.

Marine Safety Queensland may Suspend or Cancel Marine Licences Anyway

Nevertheless, even if the court does not disqualify the person’s licence, Marine Safety Queensland may suspend or cancel the person’s marine licence on conviction of a drink-driving offence involving a boat or ship. In this case, the person must be given notice and is permitted to make written reply to the proposed suspension or cancellation explaining why their marine licence should not be cancelled or suspended.

Once disqualified, the person must surrender their marine licence or marine licence indicator within 7 days of receiving formal notice that they have been so disqualified. This applies to both court-ordered disqualifications and to suspensions or cancellations by Marine Safety Queensland.

“Work” Marine Licences are Available

If the person convicted requires their marine licence for work purposes, it is possible to apply for a restricted marine licence. Applications for restricted marine licences are heard and dealt with similarly to “work licence” applications for drivers licences.

If the application is granted, the person will be issued with a restricted marine licence that limits the person’s operation of boats, etc to their means of earning a living, the times that they may operate, and the waters in which they may sail.

Conclusion

In short, if a person is convicted of a “drink-driving” offence while operating a boat, ship, or other watercraft, the court can only disqualify the person’s marine licence, and not their drivers licence. The court is not compelled to disqualify the person’s marine licence but, if it does, may decide how long to disqualify for and when the disqualification is to start.

A Word of Warning

In practice, few people are charged with drink-driving offences involving boats, ships or other marine vessels. It is more common for police to intercept people when they are at the boat ramp, hitching the boat to their car’s trailer, or towing the boat out of the water. In these circumstances, the police will invariably charge the person with a drink-driving involving a motor vehicle, rather than involving a boat (even if the person had a prohibited concentration of blood alcohol at the time they drove the boat). This is usually because the person was either driving the motor vehicle (to put it up to the boat ramp, etc) or “in charge” of the motor vehicle (in order to attach the boat to the trailer).

In cases such as these, convictions will result in mandatory periods of disqualification of the persons drivers licence.

If I contacted you what would occur?

If you contact us, then Steven Brough the firm’s founder or our office manager Belinda Smyth will take the call or receive the email or contact form. They have over 45 years legal experience between them, we can provide immediate legal assistance and answer any questions you have. We will discuss your case, provide guidance and send a quote by email with additional relevant information about your charge, all at no cost.

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.

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;

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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.

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.

Drink Driving While Supervising a Learner Driver

Steven Brough — Thu, 01 Feb 2024 07:15:00 +0000

In Queensland, the responsibility of supervising a learner driver is taken seriously, and this includes adhering to laws regarding alcohol consumption. It is illegal for a person who is supervising a learner driver to be under the influence of alcohol or drugs beyond the legal limit for driving.

What is my limit if I am supervising a learner driver?

The legal limit for blood alcohol concentration (BAC) when supervising a learner driver in Queensland is typically the same as for driving a car, which is 0.05% BAC as you must hold an open licence to supervise a learner driver. However, some situations may require a zero alcohol limit, especially if a heavy vehicle is involved.

The laws relating to driving with drugs in the system apply.

Can the police breath test me?

Law enforcement authorities have the power to conduct random breath tests (RBTs) on supervisors of learner drivers, just as they do for regular drivers. If a supervisor is found to be over the legal alcohol limit while supervising a learner driver, they can face penalties similar to those for drink driving, including fines and license disqualification.

What does the law say?

Section 79AA of the Transport Operations (Road Use Management) Act 1995 states that;

The supervisor is in charge of the motor vehicle for the purposes of—

(a)the relevant provisions; and

(b)other provisions of this Act applying in relation to any charge, proceedings, conviction or sentence for an offence against a relevant provision.

The key phrase is the supervisor is considered to be “in charge of the motor vehicle” . This means the supervisor is technically in charge of the motor vehicle and the law states that if a person who is “in charge” they are subject to normal drink driving laws and if found to be over the limit will be charged as if they were the driver.

The relevant provision refers to the section that covers drink driving in Queensland.

What will the penalty be for drink driving while supervising a learner?

Please visit our full article on drink driving penalties

Could I get a Work Licence if charged?

Perhaps, please see our full article on Work Licences in Queensland.

Summary

In summary, drink driving while supervising a learner driver in Queensland is illegal and carries penalties similar to those for regular drink driving offenses. It’s crucial for supervisors to prioritize road safety by remaining sober during driving sessions and providing responsible guidance to learner drivers.

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;

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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.

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.

Second Drink Driving Offence — What Will Happen in Court?

Steven Brough — Thu, 25 Jan 2024 09:01:00 +0000

It is common for people charged with a drink driving offence to come before a Queensland court with a history of drink or drug driving offences. Sometimes, these offences are dated, having occurred over 5+ years ago.

A history of drink or drug driving becomes much more relevant to a defendant, if their previous offence was within the last 5 years from the date of the offence. The reason for this is two fold:

it makes the defendant ineligible for a work licence;
it exposes a defendant to a greater minimum and maximum penalty than they otherwise would have faced

This article will focus on the second of the above, being the increase in penalty that a defendant is exposed to if this is their second or more drink driving charge.

Why is a person exposed to a higher penalty?

The Police have the power, which is often exercised to serve a “Notice of Intention to allege previous conviction” or often simply known as a Notice to Allege. This notice is served pursuant to section 47 of the Justices Act 1886 and formally puts the previous convictions before the court.

This is significant in the event of drink and drug driving offences as pursuant to section 86 of the Transport Operations (Road-Use Management) Act 1994. This section deals with the mandatory minimum disqualifications for drink and drug driving offences, for example:

Drink Driving over the general alcohol limit but not over the middle alcohol limit, the mandatory minimum is a disqualification of 1 month to a maximum of 9 months;
Drive with relevant drug in blood or saliva, the mandatory minimum is a disqualification of 1 month to a maximum of 9 months; and
Drive over the middle alcohol limit but not over the hight alcohol limit, the mandatory minimum is a disqualification of 3 months to a maximum of 12 months.

However, when a notice of intention to allege is tendered, the court must start the disqualification at a higher mandatory minimum, for example:

Drive over the general alcohol limit, with a previous like offence – the mandatory minimum becomes 3 months and the maximum 18 months;
Drive with relevant drug in blood or saliva, with a pervious like offence – the mandatory minimum becomes 3 months and the maximum 18 months;
Drive over the middle alcohol limit, with a pervious like offence – the mandatory minimum becomes 6 months; and
Drive Under the Influence of Liquor or Drug – the mandatory minimum becomes 9 months to a maximum of absolute disqualification.

The court however, will take all alleged previous convictions into account when determining whether or not to impose lengthier periods of disqualification, or indeed whether or not harsher penalties are appropriate to impose, such as community based orders such as Community Service or Probation to considering periods of imprisonment if there is a lengthy history of drink and drug driving offences.

The best thing is obviously to engage an experienced traffic lawyer to act for you. A lawyer knows what the court needs to hear to get the lowest penalty possible for a 2^nd drink driving charge.

Other things you can look to do are:

obtaining character references
where appropriate seek medical help if needed
completing a traffic offender program
completing a letter of apology
get a good traffic lawyer

I have heard that if I have three offences in 5 years I have to go to prison?

If this is your third high range drink driving charge in 3 years then the court must impose a term of imprisonment. It does not mean you will potentially serve time in prison as the court could potentially wholly suspended any sentence or give immediate release on parole if proper legal arguments are made.

If an accident occurred and someone was hurt or you have previous traffic or criminal history then the courts might be looking at whether a prison sentence might form part of the penalty

Conclusion

Drink and Drug driving offences are complex areas of law once a history of offences and multiple like offences occurring in a short period of time. Whether that is what penalties are going to be increased, whether the court can consider periods of imprisonment, or even if disqualifications are going to be served concurrently or cumulatively. Engaging an experienced traffic lawyer will allow you to get the best outcome possible in the circumstance where this is your second or more drink driving offence. This article is only the touching off point for a sometimes difficult to interpret area of traffic law, simply reading the relevant sections of the acts, without a background in criminal and traffic law creates unease and uncertainty for clients. This article is aimed to clarifying some of these concepts.

Should I get a drink driving lawyer to represent me for a second drink driving offence?

Some people of course decide just to go to court and throw themselves on the mercy of the court and hope everything turns out fine.

The difficulty with this is the court can be harsh, the magistrate treats drink driving charges seriously. Unless you know what to say and what not to say to the magistrate then you won’t get the best outcome. Even a month or two extra disqualification is going to cost a lot in terms of lost work opportunities, extra transport costs and interference in your personal life.

Traffic Lawyers aren’t that expensive and you get to have an expert on your side taking care of everything at court and looking out for your rights and best interests.

You can see our fixed prices by clicking here

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

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to call you back
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
Click the help button to the right and leave us a message

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.

Will I Incur Demerit Points for a Drink or Drug Driving Offence?

Steven Brough — Mon, 18 Dec 2023 10:32:00 +0000

Drink driving and drug driving charges in Queensland require an attendance in court and aren’t just matters that can be resolved through the issue of a ticket. Clients often ask us will I get any demerit points for a drink or drug driving charge?

Demerit points in Queensland

The law specifies that certain traffic offences automatically attract demerit points. For example it is well known that speeding infringements along with a fine will attract demerit points.

Less well known are certain offences that can be dealt with in court, for example careless driving, also attract demerit points.

See the demerit points schedule for a list of common offences and the demerit points that apply for

Can a court impose demerit points?

A judge or magistrate cannot impose demerit points and neither can they say demerit points should not be applied. If you are found guilty or plead guilty to certain offences in court then demerit points are automatically imposed.

If the law does not mandate that an offence carries demerit points then no demerit points will be incurred.

What about drug or drink driving charges?

Drink driving and drug driving charges do not incur demerit points. A court will disqualify a person’s licence but demerit points are not applied to the charge.

Drinking After Driving but Before a Breath Test

Steven Brough — Sun, 17 Dec 2023 06:35:00 +0000

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:

Age;
Height;
Weight;
Gender;
Amount and type of alcohol consumed;
The period of time which you allege you consumed alcohol; and
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;

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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.

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.

Do I Really Need to Lose My Licence for Drink Driving?

Steven Brough — Mon, 25 Sep 2023 12:32:00 +0000

People often ask whether they have to lose their driver’s licence if they are charged with drink or drug driving in Queensland?

In this short guide we will talk about licence disqualifications for drug and drink driving offences and what alternatives there are to maintaining the ability to drive during any disqualification.

The law in Queensland

In Queensland unlike other Australian states there is mandatory periods of disqualification for all drink and drug driving offences. It does not matter what a person’s circumstances are, their driving history or any other factors, if they are charged with drink or drug driving and plead guilty there must be a mandatory period of disqualification.

Let’s take an example of an open licence holder with no traffic history who records a reading of .0 51 which is just barely over the drink driving limit. The driver has a disabled child who needs regular doctor appointments and must be driven there. The law states in these circumstances that the driver must lose their licence for at least one month no matter how much of an impact it will have on them and their family. The magistrate has no ability to reduce that disqualification below 1 month. It is certainly a very harsh outcome for someone who was just over the alcohol limit however that is the law in Queensland.

What are the disqualification periods?

The chart below sets out the disqualification period in Queensland.

We also have a whole article on Drink Driving Penalties in Queensland

I've heard about a thing called a work licence

A work licence is a type of authority where the court can allow someone to drive during the mandatory disqualification. It’s important to note that this is only for work purposes. Our example above of a mother needing to drive their child to medical appointments would not apply. However someone losing their job because of this qualification may be able to apply.

The conditions for someone applying for a work licence are as follows, they must:

Not have had a licence to disqualifications suspension or cancellation in the previous 5 years
Not be charged with an offence of high range drink driving or driving under the influence of a drug
Be on a Queensland open driver’s licence at the time of the offending

The court may also impose any of the following conditions on any work licence they a grant;

restrict the times when you may drive
restrict the purposes for which you may be able to drive
restrict the class of vehicle you may drive;
require you to complete a logbook
require you to wear a work uniform
restrict who you may carrying as a passenger in the vehicle

It’s not possible to go into all of the requirements of a work licence here so please read our main work licence page for more information.

What about getting a special hardship licence?

Unfortunately a special hardship licence only applies to someone who has exceeded their demerit points, then has gone on a good driving behaviour and has incurred more than one demerit point. It also applies to someone who has exceeded the speed limit by more than 40 km/h.

It does not and cannot apply to someone charged with drink or drug driving.

For more information on special hardship licences see our main page for a complete guide.

Surely the magistrate can take pity on me and not take my licence away?

If you are charged with drink or drug driving as stated above the magistrate has no discretion as to whether they will take their licence away they must for a period of at least one month. A first time provisional licence holder minimum disqualification period is 3 months. Check out our guide to drink driving penalties.

I've heard that a magistrate can give me a section 10 and not take my licence away

Section 10s only apply in New South Wales they are not Queensland law and therefore don’t apply here.

See our article on Why section 10 does not apply in Queensland

Are you really telling me the court has no discretion to not take my licence away?

That is correct. The magistrate can decide the length of the disqualification but in the example we used at the start of the article the disqualification that can be imposed is between 1 and 9 months. The magistrate would likely take pity on someone in those circumstances and only impose a 1 month to disqualification however they cannot and will not go below 1 month.

What can I do to reduce the disqualification period?

The best way to ensure the lowest penalty possible is to engage a lawyer that regularity appears in Queensland courts for drink or drug driving charges.

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;

Use our contact form and we will contact you by email or phone at a time that suits you
Call us on 1300 952 255 seven days a week, 7am to 7pm
Click here to select a time for us to have a free 15 minute telephone conference with you
Email steven@claritylaw.com.au
Send us a message on Facebook Messenger
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. 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:

Top 5 Drink Driving Myths
The Essential Guide to Obtaining a Work Licence
Drink Driving on a Lime Scooter
How Drink Driving Matters are Heard in Queensland
What happens after your drivers licence is disqualified?
Refusing a Breathalyser Test in Queensland
Can you commit a drink driving offence in your driveway?
Immediate suspension for drink driving
Case Study – High Range Drink Driving and Disqualified Driving
Three High Range Drink Driving Charges
Special Hardship Orders v Work Licences
High Range DUI
Going through a drink driving charge in Brisbane Magistrate Court
DUI Charges
Ultimate Guide to High Range Drink Driving
Can you beat a DUI?
Navigating Drink Driving Charges in Queensland: Top 5 Do’s and Don’ts
Disqualification vs Suspension, what is the difference in Queensland?
The True Cost of a Drink Driving Conviction in Queensland
How does a traffic matter proceed in the Southport Magistrates Court?
Will I get a criminal conviction for a drink driving charge?
Work Licence Affidavits
Drink Driving Lawyers Brisbane
Drink Driving Lawyers Gold Coast
Drink Driving Lawyers Sunshine Coast
Drink Driving Lawyer Ipswich
Drink Driving Lawyer Beenleigh
Drink Driving Lawyer Caboolture
Drink Driving Lawyer Strathpine
Criminal Lawyer

What our clients say about us

What Happens if You Crash While Drink Driving?

Steven Brough — Fri, 15 Sep 2023 13:00:00 +0000

A significant factor in sentencing someone for a Drink or Drug driving offence in Queensland is was there a crash?

This article will discuss what happens if you go to court for a drink driving charge where there was a crash or accident, how this affects the penalty for drink driving and what you can do to reduce the penalty.

Why is it relevant that a crash has occurred?

When you admit guilt to the charge you’re facing in court, the prosecution will present the case’s facts for the magistrate’s consideration in determining the appropriate sentence.

The court is interested in hearing about any crashes as they play a crucial role in determining the final judgment of the offense. Specifically, if a crash has occurred, it highlights the increased danger associated with driving under the influence of alcohol or drugs.

The court will assess various aspects of the crash, including who was at fault, whether it involved one or more vehicles, and if anyone was injured as a result.

What does a crash mean for my penalty?

The court will increase the penalty if a crash occurred as drink driving causes approximately 30% of fatal crashes in Australia and doubles the chance of any crash according to research by the Queensland University of Queensland. This might mean a more significant fine or a longer disqualification.

If a person has a history of drink and drug driving, this increases the likelihood that the court will consider penalties beyond a fine and disqualification.

Where a crash has occurred, our office will typically recommend that a person complete a traffic offenders program (we have written on these programs here), to show the court that they have taken the matter very seriously and elected to undertake additional driver education and rehabilitation.

What should I do if I have had a crash?

If you were involved in a crash, that increases the seriousness of the offence, which will be further aggravated by a high reading or a history of drink driving. It is in your best interest to contact an experienced traffic lawyer who can give you advice on the best way to prepare for your sentence.

An experienced traffic lawyer will give you the best chance to reduce the penalty and disqualification you are facing. Do not try and navigate these complexities by yourself.

How might a crash affect the Penalty?

Take the following two situations both have similar readings and a similar traffic history but the difference is a crash.

oe Bloggs was waived into a static roadside breath testing site and returned a positive reading of 0.103% BAC. Joe is a 27 year old man who is well employed and has a limited traffic history. Joe has completed a traffic offenders’ program and obtained good character references. Joe received a fine of $650 and a disqualification of 3 months.

John Doe came to the attention of the police as a result of a single vehicle crash, where John collided with a traffic pole. John was driving in the middle of the night and there were no injuries caused. John had a reading of .10% BAC. John is a 25 year old man who has good employment, has a traffic history consisting of a few speeding fines and has not completed a traffic offenders program. John received a fine of $800 and a disqualification of 5 months.

These examples are based off previous matters that have been before the court. The relevant details have been changed and only serves as an example as to the significance a crash can have on overall outcome. They are not a one size fits all model and each case turns on the facts and the individual before the court.

Its critical to get a good traffic lawyer so they can properly address the crash with the magistrate.

Will my insurance cover the damage?

In almost all cases there will be a clause in your insurance contract that voids your insurance when you have been arrest for drink driving. This means your insurance will not cover the damage to your vehicle and it will also not cover the damage to any other vehicle or property.

You will need to check with your insurance broker or check the conditions on your insurance.

Summary

Relevance of a Crash in Drink or Drug Driving Offense:
- Courts consider the occurrence of a crash as a significant factor in traffic matters.
- The presence of a crash helps the court understand the real danger associated with drink or drug driving.

Factors Considered About the Crash:
- Impact of the crash.
- Fault determination.
- Type of crash (single or multi-vehicle).
- Any injuries resulting from the crash.
- The $ value of any damage done

Impact on Penalties:
- Courts give more weight to cases involving a crash.
- This may result in a higher fine, increased penalty, or longer disqualification period.
- Prior history of drink and drug driving further increases potential penalties.

Recommendation for Offenders Involved in a Crash:
- Complete a traffic offenders’ program as this demonstrates a serious approach to the matter and willingness to undergo driver education and rehabilitation.

Advice for Offenders with a Crash:
- Important to consult an experienced traffic lawyer for guidance on sentence preparation.
- Your insurance likely will not cover any damage
- A skilled lawyer can increase chances of reducing overall penalty and disqualification.

Comparison of Two Scenarios

Joe Bloggs:

- Recorded a BAC of 0.103% after a static roadside breath test.
- Limited traffic history, good employment, completed a traffic offenders’ program.
- Received a $650 fine and a 3-month disqualification.

John Doe:

- Involved in a single-vehicle crash, with a BAC reading of .100%.
- Had a few prior speeding fines, no traffic program completion.
- Received an $800 fine and a 5-month disqualification.
- Note: These are illustrative examples and outcomes can vary based on individual circumstances.

Impact of a Crash not properly addressed with the court
- An experienced traffic lawyer can provide advice and assistance in minimizing the impact of the crash for the best possible outcome.

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;

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

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:

Top 5 Drink Driving Myths
The Essential Guide to Obtaining a Work Licence
Drink Driving on a Lime Scooter
How Drink Driving Matters are Heard in Queensland
What happens after your drivers licence is disqualified?
Refusing a Breathalyser Test in Queensland
Can you commit a drink driving offence in your driveway?
Immediate suspension for drink driving
Case Study – High Range Drink Driving and Disqualified Driving
Three High Range Drink Driving Charges
Special Hardship Orders v Work Licences
High Range DUI
Going through a drink driving charge in Brisbane Magistrate Court
DUI Charges
Ultimate Guide to High Range Drink Driving
Can you beat a DUI?
Navigating Drink Driving Charges in Queensland: Top 5 Do’s and Don’ts
Disqualification vs Suspension, what is the difference in Queensland?
The True Cost of a Drink Driving Conviction in Queensland
How does a traffic matter proceed in the Southport Magistrates Court?
Will I get a criminal conviction for a drink driving charge?
Work Licence Affidavits
Drink Driving Lawyers Brisbane
Drink Driving Lawyers Gold Coast
Drink Driving Lawyers Sunshine Coast
Drink Driving Lawyer Ipswich
Drink Driving Lawyer Beenleigh
Drink Driving Lawyer Caboolture
Drink Driving Lawyer Strathpine
Criminal Lawyer

What our clients say about us

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.

Can You be Charged With Drink Driving When You Did Not Actually Drive?

Steven Brough — Thu, 31 Aug 2023 06:44:00 +0000

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:

is not in the driver’s seat of the vehicle; or
is not in the vehicle; and
had manifested an intention of refraining from driving that motor vehicle; and
was not so intoxicated as to be incapable of understanding or forming the intention of refraining from driving that motor vehicle; and
the motor vehicle was parked in such a way as not to constitute a source of danger to other persons or other traffic; and
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.