Drink Driving Offences

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Driving under the influence of banned substances or certain levels of alcohol is prohibited under the Transport Operations (Road Use Management) Act 1995 (Qld) (“the Act”).  If you contravene a relevant drink driving provision under the Act you will be required to appear before the local Magistrates Court. Here it will be decided whether you will receive a fine, a licence suspension, licence disqualification or a term of imprisonment (if you cannot prove any defences).

The penalty will be proportionate to your Blood Alcohol Concentration (“BAC”) at the time of the offence, your traffic history, and whether or not you have been charged with the same or a similar offence.

Sections 79(1) and  84 – General Offences

If you drive, attempt to drive or are “in charge” of a motor vehicle while having an illegal BAC, you will be charged with drink driving under s79 of the Act.

Section 79(1) provides that:

Any person who, while under the influence of liquor or a drug—

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel; is guilty of an offence and liable to a penalty not exceeding 28 penalty units.

Can I drink and ride a bike? The answer to this is no. Under s84 a person cannot operate a “vehicle” (including a bicycle) with prohibitively high BAC.

Section 84 provides that:

(1) Any person who drives a vehicle (other than a motor vehicle), a tram, a train or an animal on a road dangerously is guilty of an offence and is liable to a penalty not exceeding 4 penalty units or to imprisonment for a term not exceeding 6 months.

What type of vehicle do you have to be in charge of?  

In addition to a tram and train, the Act prohibits the use of a “motor vehicle” or a “vessel” while intoxicated or under the influence of drugs. This means that you can be charged for operating any vehicles that have motorised propulsion; not just those falling within the category of a car or boat.

Under schedule 4 of the Act, “motor vehicle” means:

  • A vehicle propelled by a motor that forms part of a vehicle; and
  • Includes a trailer attached to the vehicle; but
  • Does not include a motorised scooter, a personal mobility device or a power-assisted bicycle.

A “vessel” means:

  • Any ship, boat, punt, ferry, air cushion vehicle and
  • Every other kind of vessel used or apparently designed for use in navigation whatever may be the means of its propulsion.

Under section 84 a person who operates a vehicle while drink driving is guilty of an offence.

Under schedule 4, a “vehicle” includes “any type of transport that moves on wheels and a hovercraft” but does not include a train or tram.

What does it mean to be “in charge” of a vehicle?

You do not need to be driving to be “in charge” of a vehicle. This means that even if you sleep off the alcohol  in your vehicle but have access to your keys, you may still be classified as “in charge” of your vehicle. If you are found by police in the front compartment of your vehicle you are more likely to be charged with an offence; if you are found in the back seats you may still be required to explain how you are not “in charge” of your vehicle.

This was the case in a recent Magistrates Court matter where the accused was fined $1400 for sleeping in the driver’s seat of his car while under the influence of alcohol.

Suspensions

If you have been breathalysed and exceed the legal BAC, the police can lawfully issue you an immediate licence suspension.

If your BAC is under 0.10, a minimum 24-hour licence suspension will apply. You cannot return to your car before this 24-hour period has lapsed, or you risk being charged for driving or attempting to drive on a suspended licence.

If your BAC is under 0.10 but you have a previous drink driving charge pending, an immediate suspension will apply. This means that you cannot drive before your court appearance.

An immediate suspension will also apply if you have been charged with a mid to high range drink driving offence (over 0.10), refuse to provide police with a requested specimen of breath or blood, or you have been charged under the Criminal Code Act with dangerous operation of a vehicle while under the influence.

Section 79 – Levels of Intoxication for First Time Drinking Offence 

a) Learner, Probationary or Provisional Drivers, Drivers of Particular Vehicles

Under s79AA, learner drivers, drivers on probation or on their P plates are subject to a strict no alcohol provision. If any of the relevant drivers are charged with Driving Under the Influence (“DUI”) they may be subject to (at the Magistrate’s discretion):

  • A penalty not exceeding 14 penalty units, or $1,649 as at May 2016; or
  • Imprisonment for a term not exceeding 3 months; or
  • 3 to 9 months disqualification;

b) 05 and Over, but Under 0.10

At the Magistrate’s discretion, drivers on their Open licences charged with DUI may be subject to:

  • A penalty not exceeding 14 penalty units, or $1,649 as at May 2016; or
  • 1 to 9 months disqualification; or
  • 3 months imprisonment.

 c) 10 and over, but under 0.15

At the Magistrate’s discretion, drivers on their Open licences charged with DUI may be subject to:

  • A penalty not exceeding 20 penalty units, or $2,356 as at May 2016; or
  • 3 to 12 months disqualification; or
  • 6 months imprisonment.

 d) 15 and over

At the Magistrate’s discretion, drivers on their Open licences charged with DUI may be subject to:

  • A penalty not exceeding 28 penalty units, or $3,298 as at May 2016; or
  • Minimum 6 months disqualification;
  • 9 months imprisonment.

A penalty unit is currently $117.80 (as at 26 May 2016).

Other Penalties

a) Car Impounded

If you have been charged with a repeated drink driving offence and you show a BAC of over 0.15, your car can be impounded. The same applies if you fail or refuse to provide a specimen of blood or breath.

b) Licence Disqualified

If you are charged with a repeated drink driving offence, your licence may be disqualified for up to two years.

c) Fines

A repeated drink driver may be fined up to 60 penalty units, or $7, 068 (as at 26 May 2016).

d) Prison Sentences

You may receive a prison sentence at the discretion of the court.

Defences

If you have been charged with drink driving, you may have defences available to you. There are a number of material facts to consider.

Was the breath analysis or the drawing of blood carried out within 3 hours of driving or being in charge of the vehicle in question? If the police have not adhered to this rule under the Act you may have a defence to your charge.

Were you driving at the material time? If a different person was driving the vehicle at the time of the offence, you may have a defence to your charge. However if the driver was a learner, this defence will not apply.

Are you able to prove that you were not “in charge” of the vehicle? This includes not having your keys on you if you are asleep, or another person having charge over the vehicle at the time of the offence.

There are also may mitigating factors in a drink driving charge. While you may not be able to dispel guilt, the Court will consider a number of factors when it comes to sentencing. To ensure you make appropriate submissions at sentencing, it is imperative that you engage a competent traffic lawyer. This can often mean the difference between a harsh or comparatively light sentence.

Seeking Legal Advice

It is important to seek legal advice if you are charged with drink driving, especially if you would like to contest your charge.

This article was written by Alistair Macpherson (Director) and Matthew Shearing (Lawyer)