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Drink Driving on a Lime Scooter

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We are seeing an increasing amount of people charged with drink driving on lime scooters and other electric devices on Queensland roads and being required to appear in court.

 

Rules Relating to Lime Scooters

Lime scooters (and other “rideables”) are permitted to be used in Queensland subject to strict rules. In broad terms, you must be at least 16 years old (or 12 years old, with adult supervision), wear a helmet, not carry passengers, you must not use your mobile phone, drive on footpaths, and avoid driving on roads as much as possible. You may drive on roads if you are crossing the road at a crossing, avoiding an obstruction on the footpath, or driving on a local road. If you breach any of these rules, you will be fined. Fines for breaching these rules start at $130.00.

More importantly, you cannot use a Lime scooter if you are under the influence of alcohol or drugs. This offence is considered a more serious offence and must be dealt with by a court.

 

The Nature of the Offence

There is no specific offence of drink-driving on a Lime scooter. Instead, Queensland’s traffic legislation creates a broad offence, which includes horses, other animals, or “any vehicle (other than a motor vehicle)”. You may commit the offence by either “driving” any of the things listed or “being in charge” of them. The phrase “in charge” is also quite broad but, in essence, requires you only to be able to “drive” the thing in question without first taking control of the thing from someone else. What constitutes being “in charge” of something depends on all the circumstances at the time that the police allege the offence was committed.

The traffic legislation contains its own definition of “vehicle”. It is defined as “any type of transport that moves on wheels and a hovercraft but does not include a train or tram”. Limes scooters clearly fall within this wide definition of “vehicle”.

It is also important to note that you must be “on a road” in order to commit this offence. Again, the legislation provides a technical definition of “road” that is somewhat different to the way the word is used in ordinary use. This definition includes busways and any area that is “open to be used by the public and is developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise”. A simpler way to understand this definition may be to say that a “road” is something that is used for driving motor vehicles, either by design or by convention.

Conviction for this offence attracts a maximum penalty of a $5,222.00 fine (as at the time of writing) or 9 months’ imprisonment.

 

Does a Licence Disqualification Apply?

The legislation does not dictate that a mandatory period of disqualification from driving attaches to this offence. This makes sense, as you do not generally need a licence to ride horses, or drive vehicles that are not motor vehicles.

However, the court does have a general power to disqualify the licences of anyone convicted of an offence “in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender”. This power is not limited to traffic offences. In short, any offence where a motor vehicle is involved may cause the court to consider disqualifying the convicted person’s licence. Examples where this power has been exercised include wilful damage, threatening violence, wilful and unlawful destruction of parts of a motor vehicle, possession of liquor in a restricted area, assault occasioning bodily harm whilst armed, etc.

But this power only relates to “motor vehicles”. In order for the court to disqualify your licence following conviction for drink-driving on a Lime scooter, you would need to have somehow interfered, in any way, with the operation of a motor vehicle (ie, a motor vehicle being driven by someone else). It is not difficult to imagine circumstances where a Lime scooter operated by someone who is intoxicated interferes with other road users.

Alternatively, the scooter itself would have to be classified as a “motor vehicle”. This is where things get complicated.

The transport legislation defines a “motor vehicle” as “a vehicle propelled by a motor that forms part of the vehicle and … does not include a motorised scooter, a personal mobility device or a power-assisted bicycle.” This definition explicitly excludes Lime scooters (and similar rideables), hence the mandatory periods of disqualification under the transport legislation do not apply.

However, the Act that gives the court the general power to disqualify licences does not contain its own definition of “motor vehicle”. Furthermore, Queensland’s Criminal Code contains its own, expansive definition of a “motor vehicle”. The Criminal Code defines a “motor vehicle” as “any machine or apparatus designed for propulsion wholly or partly by gas, motor spirit, oil, electricity, steam, or other mechanical power, and also includes a motor cycle, or a caravan, caravan trailer or other trailer designed to be attached to a motor vehicle”. This catch-all definition does not distinguish between machines designed for propulsion on land or propulsion on water.

A “vehicle” is defined to include “a motor vehicle, train, aircraft, or vessel”.

In trying to decide which definition should apply, it is logical to take the view that the definition used in the legislation that creates the offence should apply when the court considers whether it has the general power to disqualify offenders’ licences. On the other hand, it is also logical that, given that this general power applies to any offence (where a motor vehicle is involved) created under any piece of Queensland legislation, a single, general definition of “motor vehicle” should apply to this general power. To the best of my knowledge, there are no case-law authorities that have determined this matter one way or the other.

Nevertheless, in deciding whether to exercise this power at all, the court must be satisfied that disqualifying a convicted person’s licence is justified having regard to “the nature of the offence, or to the circumstances in which it was committed”. The higher courts have stated explicitly that disqualification from driving must not operate as a “a gratuitous addition to other available punishments. There should be apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term.” In addition, the offence itself must be “grounded in the act of driving and there will usually be detectable some abuse of the privilege of driving or of the opportunity taken to drive.”

The important phrase is “the abuse of the privilege of driving”. However, it is difficult to say, in broad terms, that a drink-driving offence committed on a Lime scooter demonstrates an abuse of the privilege of driving, given that a drivers licence is not required to use one. That is not to say that the specific circumstances of any particular case may not convince the court that such an abuse has occurred.

 

Conclusion

As Lime scooters become a fixed feature of our cities’ environment, the courts will see more people charged with drink-driving (and other offences) committed on these scooters.

If you find yourself charged with this offence, it is important to get good legal advice. Queensland’s transport law can be complex, and the court has wide powers to impose penalties that it believes fit the severity of the offence. You need someone to represent you who can put your case before the court forcefully, who can assist the court to navigate the intricacies of the legislation, and who can help you to get the best possible outcome.

 

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

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

  1. Use our contact us form and we will contact you by email or phone at a time that suits you
  2. Visit our website at www.drivinglaw.com.au
  3. Call us on 1300 952 255 seven days a week, 7am to 7pm
  4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

We cover all courts in South East Queensland from Southport to Gympie and out to Toowoomba.  We have 5 offices in South East Queensland and we are also a expert traffic law firm and so we are in the South East Queensland courts every day helping people with charges like this.

Introduction

A work licence (also known as a restricted licence, section 87 licence or day licence) is a special type of licence that may be issued by the court to persons convicted of a low or mid-range range drink driving charge (a BAC reading under .15) or certain drug driving charges in Queensland.   A work licence replaces your normal Queensland drivers licence for the period of the disqualification imposed by the court.

A work licence can only be used for work purposes; you cannot use a work licence to drive to the shops or dropping kids off at school. A work licence is designed to allow you to continue to earn a living where a driver’s licence is an essential component to you earning that living.

It is also critical to understand that the work licence must be applied for before the court imposes a disqualification period for the drink or drug driving offence. Once the court imposes the licence disqualification you cannot apply for a work licence.

 

Can I apply?

To be eligible to apply for a work licence you must:

  1. hold a current Queensland open driver's licence for the vehicle you were driving. The open licence must have been held at the time of committing the offence.  Provisional and learner drivers cannot apply for a work licence
  2. have had a blood alcohol level of less than 0.15% or the drug driving offence must be been driving with a relevant drug and not drug driving UIL
  3. not have been driving for your job at the time you were charged. There are some exceptions where driving is not the main component of your job e.g. labourers driving to a work site or fencing contractors picking up materials to use onsite
  4. not have been driving under a licence that required your blood alcohol level (BAC) to be zero e.g. if you are on a learner, provisional, probationary or restricted license.

In the last five years you must not have:

  • been convicted anywhere of drink driving or a similar offence
  • been disqualified by any court
  • had a licence suspended or cancelled (except in some limited circumstances like certain SPER suspensions that did not go to court).
  • Applied for a work licence

 

What do I need to provide in my application?

To apply for a work licence you must file in the court where your drink driving charge is being heard (and serve on the police prosecutor) at least the following;

  1. An affidavit of yourself setting out;
    1. Your personal circumstances like where you live, with who etc
    2. What work you do and a detailed explanation of what driving for work you need to do
    3. The days and hours you work including any overtime
    4. Why you can’t use taxi’s or public transport
    5. Your financial circumstances including your income and expenses and those of you partner (if applicable)
    6. How your employment or if self-employed your income would be affected by not being granted a work licence
    7. How the drink driving charge came about and if necessary you will need to address other offences on your traffic history (or criminal history)
    8. What conditions the court should impose on your work licence
  1. If you are employed then your employer must provide an affidavit confirming the need for a work licence and if it not granted that you will be deprived of the means of earning your income
  1. An application form for a section 87 (Work licence) available at any court registry for a full use this link www.courts.qld.gov.au/contacts/courthouses

 

How does the Court judge my application?

In order for the court to grant a work licence you must show the court that you are a 'fit and proper person' and that if you don't get a work licence this will cause you or your family extreme hardship by depriving you of your means of earning a living.

The court will generally judge whether you are a fit and proper person based on your traffic history. Character references can also help a court decide you are a fit and proper person; this is especially true where your reading was mid-range (between .1 and .149). References can be from anyone who knows you well and thus can speak to your character but generally characters references from work colleagues or employers carry the most weight. The other effective thing you can do to improve the courts view of whether you are a fit and proper person is to complete a driving court. There are a number of courses but our strong recommendation is the Queensland Traffic Offenders Program (“QTOP”). The QTOP course is well regarded by the courts and can be done in person or online. Details can be found at their website www.qtop.com.au

The court judges whether you will be derived of the means of earning your income based on yours and if applicable your employer’s affidavit. It is critical to your application to show that you will suffer this extreme hardship. This is usually easier to prove for an employed person as your application must be accompanied by an affidavit of your employer that confirms you will be deprived of the means of earning your income if a work licence is not granted. It is harder to prove for self employed people and may require you to provide financial records to the court or to provide an additional affidavit of your accountant or the person you contract to.

 

Conditions the Court might impose on a work licence

Generally the court will be looking to impose one or more of the following conditions;

  1. Restricting the days and hours you can drive to the bare minimum to complete you job or business requirements
  2. Restricting whether you can carry passengers
  3. Requiring you to complete a log book before driving
  4. Requiring you to wear your work uniform when driving
  5. Limiting what classes of vehicle you can drive

 

Before the Court Date

Your need to make sure that before your court date that;

  1. You and your employer need to take the Affidavits to a Justice of the Peace or Solicitor or commissioner of declarations and sign each and every page in their presence;
  2. ensure that the Justice of the Peace or Solicitor witnesses your signature by signing each and every page;
  3. Attend the Court Registry and collect an application form for a work licence (these are also available at Queensland Transport) file your original signed Affidavits with 2 photocopies. The Court will stamp them, keep the original and give you two copies back.  It is also a good time to file any character references you may wish the court to read.
  4. Then attend the Police Prosecutions unit (which is generally in the police station near the court, you should ask the court registry where this is) file on of the copies of the affidavits and the pink copy of the application for a work licence. Also give them a copy of any character reference you filed at the registry.
  5. Keep your copies of the affidavits, application form and references and take them to court on the court date.

 

Things to consider

What should I wear to court?

You should wear the most business like clothes you feel comfortable wearing. Perhaps it best to describe the clothing as what you would wear to a job interview. Please don’t wear clothes you are uncomfortable wearing but don’t wear your work uniform or clothes with prominent logos or writing. Never wear flip flops or shorts to court.

What should I bring to court?

You should have already filed and served on the police prosecutor all your written material.

You should bring a copy of;

  1. Your signed and witnessed affidavit
  2. Your Employers signed affidavit (if not self-employed)
  3. Any character references you wish to present to the court
  4. The application form you filed

You should also bring your driver drivers licence and around $50 to pay for your new licence at Queensland Transport if a work licence is granted.

Will I get a Criminal Record?

No all traffic convictions are just that, traffic convictions, they are not considered to be criminal charges. The courts are unlikely not to record a traffic conviction unless specific evidence is placed before it that a traffic conviction will harm you in some way. It is very rare to have no conviction recorded.

Will my matter be in the Paper?

Possibly, the court is an open court. What this means is that any person is entitled to watch the court proceedings. This also means that a reporter is entitled to report on what occurred in the court. It is not possible to have the court ban the reporting.

How long will I lose my licence for?

This is almost an impossible question to answer. It depends on your circumstances, your traffic history and criminal history (if any), your reading, the circumstances of your arrest and the Magistrate on the day.

Generally the courts will impose a longer disqualification period where you are granted a work licence. This can be up to double the period you would get without a work licence.

A very general guide to penalties is listed below; please note this is not legal advice as to your potential penalty it is merely a rough general guide. Some Magistrates will increase your disqualification period with a work licence, others will not and this is why we cannot give you an accurate idea of your potential disqualification.

 

BAC reading

Disqualification period

Fine

.05-.07

1-2 months

$300-400

.07-.08

2-3 months

$400-500

.08-.1

3-5 months

$500-600

.1-.12

5-6 months

$600-700

.12-.13

6-8 months

$700-800

.13-.15

8-11 months

$800-900

 

 

Generally any fine will be referred to SPER. You can arrange with SPER to make payments on the fine or to pay it in one lump sum. For more information on SPER visit www.qld.gov.au/law/fines-and-penalties/state-penalties-enforcement-registry. Alternatively you can pay the fine at the court but there may be a delay as the information from the sentence is entered into the database.

 

What will happen in the court?

Please arrive at least 30 minutes before your court time.

Find out which court you are in and wait outside that court. Turn off your phone.

Eventually a Police Prosecutor will arrive you should then go and speak to them and confirm who you are and that you are applying for a work licence. Please make sure they have all your affidavits.

At this point is a good idea to ask the police for a copy of your charge documents and traffic history. Do this by asking for your “QP9” (this is the document number and is what it is referred to in the courts). Check the QP9 while you wait for the court to start to ensure it is correct. If it isn’t go and talk to the Police Prosecutor.

The court will start when the Magistrate enters, please stand whenever the depositions clerk or Police Prosecutor calls ‘all rise’ and then wait for the Magistrate to sit down before sitting yourself.

Wait for your matter to be called and then approach the table where the Police Prosecutor is. You will stand to the far left of the table. Remain standing while the Magistrate asks what you are doing. Tell the Magistrate that you are pleading guilty to the charge and that you wish to apply for a work licence. Please address the Magistrate as “Your Honour”. The Magistrate will then ask you to sit.

The Police Prosecutor will read a brief statement of facts and give the Magistrate a copy of your traffic history and breath analyst certificate. All of these documents will be in the QP9 so you should have already seen them.

Once the Police Prosecutor finishes the Magistrate will read the affidavits and if they have any queries they will ask you. Generally we find the Magistrates will not ask many questions. If you have not already filed any character reference tell the Magistrate you have some, the Police Prosecutor take them from you and will give them to the Magistrate.

If a work licence is granted a Magistrate will first give you a disqualification period and then a fine and finally will read out the terms of the work licence being granted.

You will then be asked to sit outside the court or at the registry to wait for your work licence order. It is this document that you take to Queensland Transport. Please check the order is correct before leaving the registry.

For more information on how a Magistrate court works go to www.justice.qld.gov.au/justice-services/courts-and-tribunals/going-to-court and select virtual tour from the menu to the left.

 

I was granted a work licence – now what?

If you are granted the work licence then before you can drive again then you need to go to Queensland Transport and have your licence re-issued as a work licence. You cannot drive to the Queensland Transport office. Also unless you are returning to work or driving for work purposes from Queensland Transport then you would need a lift home as your work licence would not cover for the trip between Queensland Transport and your home but it would cover you to drive from Queensland Transport back to work.

You must also comply with the requirements of any court order in relation to your licence, this may be the requirement to complete a logbook or similar. Also throughout the period of the work licence you must keep a copy of the court order in any motor vehicle you drive.

If you are caught driving outside the terms of your work licence then you will be disqualified for the balance of the disqualification period left to run plus an additional 3 months.

 

What if I am not granted a Work Licence?

If you are not granted a work licence then you have the right to appeal and this must be done within one calendar month of your court date. Those time limits are very strict. It is beyond the scope of this article to provide information on appealing the refusal to grant work licence, you would need to obtain urgent legal advice.

 

What happens after my disqualification period?

After the period of disqualification has ended you will need to attend Queensland Transport and reapply for your proper licence. You cannot simply start driving after your disqualification period has ended. Please don’t drive to Queensland Transport as you are not entitled to drive until after you have been to Queensland Transport. Also remember to bring 100 points of ID.

After you have been disqualified you will be on a probationary licence for 1 year, this means that;

  1. You have only 4 demerit points available
  2. You have a zero alcohol limit for 1 year. This 1 year started at the time your licence was disqualified by the court and the work licence granted so you may only have a few months to run at this point.

You do not have to re-sit any tests to get your licence back.

 

Should I engage a lawyer to apply for a work Licence?

While we obviously have a vested interest in people using a lawyer for a work licence application we are of the strong opinion that if your licence is critical to continuing to earn your livelihood then you use an experienced traffic lawyer.

Some advantages to using a lawyer for a work licence includes;

  1. It will increase the change of getting the work licence and the hours you require significantly
  2. Lawyers know what the Magistrates wants to hear to grant a work licence
  3. They can help minimise your disqualification period
  4. They will make the whole process easier and less stressful
  5. You will have at court someone on your side fighting to get the work licence granted

 

If I’m going to engage a lawyer why should I engage Clarity Law?

At Clarity Law we are experts in Queensland traffic law. We are in the court every single day helping people with traffic charges. We have successfully argued the court grant over 1,000 work licence applications. You simply can’t find a lawyer with more experience in the courts. We also have upfront fixed fees with no hidden charges.

We cover every court in South East Queensland from Coolangatta all the way to Gympie and out to Toowoomba.

 

Our offices are located at.

Sunshine Coast

Level 3, 14-18 Duporth Avenue

Maroochydore 4558

 

Brisbane

Bluedog Business Centre

Level 1, 16 McDougall Street

Milton

 

Southport

Corporate Centre One

Level 15, 2 Corporate Court

Bundall

 

Loganholme

M1 Business Centre

Level 2, 3972 Pacific Highway

Loganholme

 

Ipswich

Ipswich Corporate Office

16 East Street

Ipswich

 

Brendale

North Brisbane Serviced Offices

3/22-24 Strathwyn Street

Brendale

 

How do I get more information?

 

Email:                    This email address is being protected from spambots. You need JavaScript enabled to view it. 

Telephone:         1300 925 255

Website:              www.drivinglaw.com.au/services/work-licences.html

Contact Form:   www.drivinglaw.com.au/contact.html

 

Disclaimer: This article is for general information and is not legal advice.  The law or the practice of the court may have changed since this article was published.  Always obtain legal advice if you need a work licence.

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Negotiating with a Prosecutor in Queensland

Written by

Whenever you are charged with a traffic offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.

For the purpose of this article, we will use two examples. One is an unlicensed driving charge, the other is a dangerous operation of a motor vehicle charge (“dangerous driving”).

Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.

So let's first take the example of an unlicenced driving charge. Unlicenced driving carries different penalties depending on what exactly the unlicenced driving component relates to. For example, unlicensed driving charge at its worst can be a disqualified driving charge where a person has deliberately driven after the court disqualified their licence. In that case you are looking at a minimum of two years licence disqualification or it might be an unlicensed driving charge as a result of a licence becoming expired and you simply not realising it and that you drove on that expired licence and for that charge there is no mandatory licence disqualification.

Let's use the example of a demerit points suspension. That is where a person has driven whilst their licence has been suspended due to the accumulation of demerit points. This typically occurs where a person goes through their 12 (or 4 if a provisional licence holder) demerit points and then elects to lose their licence for three months or makes no election and is automatically assigned a three month licence suspension and then drives during that period. You will get a notice to appear in the Magistrates court on the unlicensed driving charge whilst the demerit points suspended. That charge carries with it a mandatory disqualification period of six months and there is no work licence or special hardship licence available for this charge. The ability to negotiate with the prosecution unit over the charge is a critical factor.

Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place. However, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.

In the case of the demerit point suspension, given that there is a mandatory six months disqualification, what typically happens is the lawyer would seek to try and reduce the unlicensed driving (whilst demerit point suspended) charge down to a lesser charge of unlicensed driving charge that does not carry mandatory disqualification periods. Now there are a number of factors that need to go into whether or not the prosecutor would accept that reduced charge and a person’s traffic history is one of the main factors. Other things to look at is the need for that person to drive and exactly why their licence came to be suspended. For example, if you elected to lose your licence for three months and drove, then the prosecutor is less likely to agree to reduce the charge than if you had gone through your demerit points, not realised this and you had received an automatic three months suspension from Queensland Transport because you did not elect a good driving behaviour period.

What would typically happen is if the charge is reduced or withdrawn then on the next court date or on the first date if the first court mention date has not occurred yet the police prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.

Lets take a look at another example, that is dangerous operation of a motor vehicle (“dangerous driving”). This is a serious charge. It is a criminal charge as opposed to a traffic offence and carries with it the real risk that you will lose your licence for at least six months and possibly much, much longer.

Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened, including the alleged driving and how that driving is alleged to be dangerous.

Negotiations or case conferencing with the prosecutor tends to look at trying to get that dangerous driving charge reduced to careless driving. A dangerous driving charge carries with it a minimum of six months disqualification if no one was seriously hurt or if there is no alcohol or drugs involved. A person found guilty of dangerous driving can also not apply for a work licence or special hardship licence. Careless driving on the other hand is a less serious charge, it is not a criminal offence it is a traffic offence and carries with it no mandatory disqualification. The court can still choose to disqualify a persons licence for a careless driving charge but handled correctly the court typically would not record a disqualification. Other areas of negotiation might be that the police won’t be able to prove that it was our client that was driving the vehicle or that there was some other legitimate reason for driving as they did. So you can see that negotiations and case conferencing in regards to dangerous driving is critical and if carried out successfully can save a person from losing licence for at least six months.

If you need any advice on a traffic related charge and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.drivinglaw.com.au

A drink driving charge is one of the most common offences dealt with in Queensland Courts. Over 30,000 people face court each year charged with drink driving. Knowing how a court will deal with a drink driving charge is important for anyone facing the court for this charge.

 

How Drink driving Offences are Dealt with Generally

In general terms, drink driving matters are dealt with “summarily”, which means that they are dealt with in a Queensland Magistrates Court, rather than in the higher courts, such as the District or Supreme Court. This is true whether you plead guilty or not guilty to the offence. If you plead not guilty, your matter will be heard and decided by a Magistrate, not by a judge and jury. Generally, the vast majority of people plead guilty to drink driving offences.

The different Magistrates Courts across Queensland deal with drink driving offences on their own or as part of a general, criminal law “call-over”. This depends on the size of the court. For example, Brisbane Magistrates Court has a dedicated courtroom that only deals with traffic matters. In Maroochydore the majority of drink driving charges are heard on a Monday, in smaller, regional courts (which usually only have 1 courtroom), you may find yourself in court with people charged with far more serious criminal offences. Regardless, when you are charged, the police will advise you of your court date.

In addition to the date, you will also be advised of what time you must be at court. Generally, you will be told to be at court at 8.30am or 9.00am (again, depending on the court). While you must be at court at this time, your matter will not be heard immediately. Instead, the court and the police prosecutor work together to decide the order in which matters will be heard that day. Most courts have volunteer support people who will be able to show you where you need to be.

As a rule, anyone who has legal representation will be heard first, followed by everyone who is representing themselves. Breaking that down further, it is a convention of most courts that barristers are heard first, followed by Solicitors who are seeking adjournments of their client’s matters, followed by Solicitors whose clients are pleading guilty, followed by people representing themselves who are applying for adjournments, and, finally, people representing themselves and pleading guilty. Note that not guilty pleas are dealt with on different days.

Of course, this is simply a convention, and Magistrates are free to choose how and when matters are dealt with in their courtroom.

 

What Happens when on the First Court Date

When you first get to court, your Solicitor will speak to the police prosecutor (or you will be directed to speak to them). The police prosecutor will give your Solicitor (or you) a copy of the police’s court brief (in Queensland, this document is referred to as a “QP9”). The QP9 describes the drink driving charge for with which you have been charged, a brief outline of the facts that the police allege constitutes the offence, your criminal history (if any), your traffic history (if any), and a copy of the breath analysis certificate (which you should have received at the time you were charged). It is important that you read the police’s outline of facts, criminal history, and traffic history carefully to ensure that you agree that these documents are correct. This is especially the case if you intend to plead guilty as a guilty plea is an admission of guilt to the charge and to the facts supporting the charge. If you think there is a problem you should discuss it with your Solicitor immediately.

On the first court date, you are not obligated to tell the court whether you wish to plead guilty or not guilty. You are entitled to get legal advice (if you do not already have a Solicitor) and the court will usually allow you to adjourn your matter for a few weeks to get this advice. While most courts offer a free, duty lawyer service, this service is not generally available for drink driving offences.

Alternatively, if you have read the QP9 and do not agree with everything in the police’s outline of facts or think that your criminal or traffic history is wrong, the court may allow you an adjournment to confer with the police about the problem. Your Solicitor will usually write to the police on your behalf and propose how to resolve the issue.

If you need to apply for a work licence, the court may adjourn your matter to a special day for hearing work licence applications (although not all courts do this). The legislation relating to work licence applications require them to be heard at the same time as the offence.

If you require an adjournment, the court will give you a date to come back to court. If you were given a Notice to Appear, the court will also consider granting you bail and require you to sign bail a bail form before you leave court. If you were arrested and bailed by the police, the court will extend your bail to the next court date.

If you were charged with a low-range drink driving offence, your drivers licence continues to be valid (unless it has been cancelled or suspended for other reasons) until the next court date and you may still drive. If you were charged with a mid-range or high-range drink driving offence, your drivers licence remains suspended until the next court date and you must not drive during this time.

If you intend to plead guilty and already have legal representation and do not need to discuss your matter with the police, the court will finalise your matter on the first court date. The process for this is discussed below.

If you intend to plead not guilty, the court will not deal with your matter on the first date but will adjourn your matter to a date for hearing. Your matter will be adjourned as per the process discussed above. The process for getting a drink driving matter is discussed below.

 

Pleading Guilty

If you plead guilty, the court will deal with your matter immediately. The Magistrate will read the charge to you and ask you how you plead. The Magistrate may also ask you if you are entering the plea of your own free will. The Police Prosecutor will then read the outline of facts and give the Magistrate copies of the breath analysis certificate, your criminal history and traffic history. The police prosecutor may also offer an opinion as to what penalties should be imposed on you.

After the Prosecutor has spoken, the Magistrate will give you an opportunity to speak. Your Solicitor (or you) will then put certain facts and circumstances to the court which support giving you the minimum penalty that can be argued for on the strength of those facts and circumstances. Queensland has legislation which dictates to the court the sorts of things that must be taken into account when deciding what penalty is appropriate in any given case. You Solicitor will tailor the information that you give to them to address those considerations contained in the legislation. This will form the basis of your Solicitor’s submissions to the court on your behalf.

This entire process will generally take less than 10 minutes.

Once your Solicitor has spoken, the Magistrate may seek further clarification of certain matter from the police, from your Solicitor, or from both. The Magistrate will then formally convict you, impose a penalty (which can cover the full range of penalties from fines, community service, probation, and up to imprisonment), and disqualify you from driving for a certain period of time. The licence disqualification takes effect immediately.

If you have applied for a work licence, the Magistrate will indicate whether the application is granted. If it is granted the Magistrate will state the conditions on which the licence is granted.

Once you are disqualified, you must immediately surrender your drivers licence to the police prosecutor. It is an offence to be in possession of your licence after you have been disqualified from driving. Your Solicitor will usually hand over your licence on your behalf. If you have been granted a work licence, you will not need to surrender your drivers licence.

Once this is done, your matter is finalised (apart from satisfying the requirements of the penalty, such as paying a fine, completing a period of probation, etc).

 

Pleading Not Guilty

If you plead not guilty to a drink driving offence, the Magistrate will adjourn your matter to a date for hearing. In the Magistrates Court, trials are referred to as “summary hearings”. In broad terms, the process for getting to a hearing is relatively straightforward. Once you tell the court that you intend to plead not guilty, the court will order the prosecution to prepare a “brief of evidence” which is a bundle of all the evidence that the police intend to use to prove the case against you. It generally takes about 6 to 8 weeks for the police to produce a brief of evidence.

The Magistrate will also set a date for summary hearing. Depending on the size of the court, and how many other people intend to fight their charges, you can expect to be given a date for hearing in about 3 to 5 months’ time. As with an adjournment, you will generally be given bail until that date and your licence status remains the same until the date of hearing.

Drink driving hearings are conducted in the same way as any criminal trial, and strict rules of evidence apply to these proceedings. In addition, if you intend to fight the charge on the basis that the police’s breath-analysing equipment was not calibrated or was faulty, there are specific rules and procedures that must be complied with before the hearing. If you fail to comply with these rules and procedures, the court will not allow you to challenge the accuracy of the police’s equipment at trial.

If you intend to fight your drink driving charge, it is vital that you (at the very minimum) get good legal advice prior to making the decision to have the matter set down for hearing. It is also important that you are properly represented at hearing to make sure that you give yourself the best possible chance of being successful in defeating the charge.

 

Conclusion

While drink driving matters may be considered among the more “simple” of matters dealt with in the court system, the process of having them dealt with can still be a daunting task to the uninitiated. With so much at stake, it is important to get it right and to get it right the first time. That is why it is crucial to get proper legal advice and representation as soon as possible after you have been charged.

 

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

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

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Visit our main page at www.drivinglaw.com.au 
  3. Visit our drink driving page at www.drivinglaw.com.au/services/drink-driving.html
  4. See our guide to work licences at www.drivinglaw.com.au/services/work-licences.html
  5. Call us on 1300 952 255 seven days a week, 7am to 7pm
  6. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Whether you call it a hardship licence, a special hardship licence, a high speed suspension licence or demerit point licence you are likely to have questions about what will happen in court. From the almost 1,000 successful special hardship applications we at Clarity Law have made the following are the most frequently asked questions.  This information applies only to hardship licence applications in Queensland.

 

What time should I arrive?

You should arrive no later than 30 minutes before the time your special hardship application is to be heard (45 minutes is better). The time will be listed on your application form.

 

How long will this take?

The court hears matters with lawyers representing clients first; then adjournments and finally unrepresented people proceeding with their special hardship application. It might take up to 1-2 hours before your matter is heard.

 

What should I wear?

You should wear the most business like clothes you feel comfortable wearing. Perhaps it best to describe the clothing as what you would wear to a job interview. Please don’t wear clothes you are uncomfortable wearing.

 

What should I bring?

You should bring a copy of your application form and affidavits. The originals should already have been filed with the court and with Queensland Transport. Also bring your driver’s licence and if you attended QTOP or similar programs a copy of your attendance certificate.

 

What do I do after arriving at the court?

You need to talk to the Prosecutor from Queensland Transport about your special hardship application. However they don’t appear at every court. Ask at the registry if a prosecutor is present. If they are go and speak to them, if they aren’t wait in the assigned court room. The police don’t handle Special Hardship Applications.

 

What will happen in the court?

Basically the Magistrate will ask you what is happening with your application. If you are self-represented you need to go through your application and the affidavits with the Magistrate. You will suggest to the Magistrate what conditions they should impose on the Special Hardship Order. The Magistrate will have questions about your need to drive and whether you are a fit and proper person to be granted a Hardship Licence. After you are finished the Magistrate will give their decision. If you have a lawyer they will do all the talking.

Please refer to the Magistrate as “Your Honour” and follow basic court protocol like standing when the Magistrate enters the court room and standing when speaking to the Magistrate.  You should also turn your phone off and not consume food or drink in the courtroom.

 

What will happen after the Court?

If your Special Hardship Application is granted you will be required to attend your local Queensland Transport (‘QT’) office to have a new licence issued (you cannot drive from the court to QT). There is a fee for this. Your local QT office can be found by going to this site www.qld.gov.au/transport/contacts/centres The licence you get back has a X3 condition meaning you are subject to a SHO. Once that licence is issued you can drive as per the order i.e. you could drive to work from QT to work but not from QT to home. After 6 months (or the period of the suspension) you will need to return to QT to have a new licence issued.

If for some reason your special hardship is not granted you have the right to appeal that decision. The appeal must be made within 28 days of the date the decision was made.

 

What happens if the Magistrates Court refuses to grant my application for a SHO?

If the court does not grant the SHO, your licence suspension will continue for the period of the licence suspension that had not been served before the application for the SHO was made.

 

How long will my SHO apply for?

The SHO will apply for the length of the suspension period detailed on your suspension notice and begins from the date of the court order. Generally this is 6 months.

 

Can I apply to have my SHO driving restrictions varied?

Yes. You may apply to a Magistrates Court to vary the restrictions stated on your SHO if the circumstances under which you are required to drive have changed since the SHO was originally granted to you.  This might include changing your employment or role at work.

 

What happens if I do not comply with the restrictions under my SHO?

If a court convicts you for the offence of failing to comply with your SHO your licence will be disqualified as follows;

  • if your SHO still applies — the balance of the order period still to be served by you as well as an additional three months
  • if your SHO no longer applies — three months from the day of your conviction (this only applies where you are charged with an offence of failing to comply with your SHO conditions)

 

How many demerit points do I get on my special hardship licence?

The law has recently changed and you cannot incur any demerit points on the SHO. If you incur demerit points on the SHO your licence will be suspended for 12 months.

 

What happens when the period of my SHO ends?

When the SHO period has ended, you may return to Queensland Transport to have your licence reissued (at no charge) without the ‘X3’ condition code. We have received conflicting advice from Queensland Transport in regards to what happens to your demerit points incurred before the SHO was granted and that are still “on your record”, our understanding is that you will have no demerit points after the SHO finishes but you should check this when getting your licence back after the SHO finishes.

If your offence was a high speed offence then the 8 demerit points you received remains on your record for the 3 years.

 

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

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

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Visit our main page at www.drivinglaw.com.au 
  3. Visit our special hardship page at www.drivinglaw.com.au/services/hardship-licences.html
  4. See our essential guide to special hardship licences www.drivinglaw.com.au/blog/item/26-essential-guide-to-special-hardship-licences.html
  5. Call us on 1300 952 255 seven days a week, 7am to 7pm
  6. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

 

This article is for general information only and is not a substitute for legal advice. Please visit our disclaimer page at www.drivinglaw.com.au/disclaimer.html Clarity Law's liability limited by a scheme approved under professional standards legislation.

%PM, %08 %247 %2019 %14:%Sep

Essential Guide to Special Hardship Licences

Written by

At Clarity Law we have been able to assist almost a thousand people obtain a Special Hardship Order ("SHO") since 2010. We have obviously been able to acquire a lot of knowledge during this time and this guide is meant to give people a basic understanding of what it might take to apply for a hardship licence in Queensland. Special hardship licences are also sometimes referred to demerit point licences or just hardship licences. For more information contact us on 1300 952 255 or visit our Special Hardship Order page or our main page at www.drivinglaw.com.au

 

Introduction

A special hardship licence is a special type of licence that may be issued by the court to persons who travel over the speed limit by more than 40 km/h or exceed their demerit points on a good driving behaviour period.   A special hardship licence allows you to drive during the suspension of your licence (generally 6 months but can be longer)

A special hardship licence can only be used for the purposes stated by the court; you cannot use a special hardship licence to drive to the shops or dropping kids off at school unless the court has specifically allowed this to happen. A special hardship licence is designed to allow you to continue to earn a living where a driver’s licence is an essential component to you earning that living or for some other specified serious reason.

 

Can I apply?

To be eligible to apply for a special hardship licence you must hold a current Queensland open or provisional driver's licence for the vehicle you were driving and in the last five years you must not have:

  • been convicted anywhere of drink driving or a similar offence
  • been convicted in Queensland of dangerous driving
  • had a licence suspended, disqualified or cancelled (except in some limited circumstances).
  • Applied for a special hardship licence

If you are unsure whether you can apply then contact us.

You will need to file an affidavit of yourself and if you are not self employed an affidavit of your employer saying without a licence you will be deprived of the means of earning your income.  It cannot be a letter it must be a signed and witnessed affdavit in the correct format.

How to apply

You must apply to the Magistrates Court in the district or division in which you live after your licence has been suspended (you can apply on the day your licence is suspended or if you want to apply before the suspension date you need to attend a Queensland Transport office and have your suspension start earlier.

Your affidavit should include your:

  • name, address and job details
  • details of your family
  • details about how your licence came to be suspended
  • Why you are a fit and proper person to get a special hardship licence
  • Details of your traffic history
  • details that you are a ‘fit and proper person’ that respects the safety of other road users and the public –
  • Your work details including
    • your current work and how long you have done it
    • what your work involves and the days and hours you work
    • why you need a licence to keep that job
    • why you cannot do your job without a licence e.g. why you can’t use public transport
  • Your financial situation –
    • what you get paid each week
    • any other family income, eg if your partner works, money from investments, rent etc
    • what you spend each week on the most important things, eg rent/mortgage, food, transport, health, school fees, phone, internet
    • other things you think are important that you need or want to spend money on.

You need to make sure the affidavits are signed and witnessed (in triplicate).  You then need to attend the court and file an application and the affidavit and pay the filing fee.  You then need to serve a copy of all those documents on your local Queensland Transport offence.

The court will give you the date and time your application will be heard.

How does the Court judge my application?

In order for the court to grant a special hardship licence you must show the court that you are;

  • a 'fit and proper person' and
  • that a refusal to grant the licence would cause extreme hardship to you or your family by depriving you of your means of earning a living or severe and unusual hardship to you or your family, other than by depriving you of your means of earning a living

The court will generally judge whether you are a fit and proper person based on your traffic history. Character references can also help a court decide you are a fit and proper person.

We strongly suggest you complete a traffic offender program before your court date. The one we recommended is the Queensland Traffic Offenders Program (“QTOP”). Their website is at www.qtop.com.au

The court judges whether you will lose your job based on yours and if applicable your employers affidavit.

 

What restrictions will the court impose?

The court may restrict the hours and circumstances in which you can drive. Generally unless there is a very good reason the court will not grant you a 24 hr / 7 day licence. The court can only grant you a special hardship licence for the licence classes you already hold.

Generally the court will be looking to impose one or more of the following conditions;

  1. Restricting the days and hours you can drive
  2. Restricting whether you can carry passengers
  3. Requiring you to complete a log book
  4. Requiring you to wear your work uniform when driving

 

What should I wear to court?

You should wear the most business like clothes you feel comfortable wearing. Perhaps it best to describe the clothing as what you would wear to a job interview. Please don’t wear clothes you are uncomfortable wearing.

 

What should I bring?

You should bring copies of;

  1. Your signed and witnessed affidavit
  2. Your Employers sign affidavit (if not self-employed)
  3. If you completed QTOP then the attendance certificate

You should also bring your driver drivers licence and around $30-50 to pay for your new licence at Queensland Transport if a special hardship licence is granted.

 

Will I get a Criminal Record?

No

 

How long will I lose my licence for?

Generally 6 months but this depends how many demerit points you incurred.

 

 

What will happen in the court?

Please arrive at least 30 minutes before your court time.

Find out which court you are in and wait outside that court. AT THIS POINT SWITCH OFF YOUR MOBILE, PLEASE TURN IT OFF COMPLETELY AND NOT JUST PUT IT ON SILENT

Eventually a Queensland Transport Prosecutor will arrive you should then go and speak to them and confirm who you are and that you are applying for a special hardship licence. Please make sure they have all your affidavits and references. They will indicate whether or not they oppose the application and if they do why. If they do oppose the application you should ask if there is any course or other things you can do so they will not object.  At this point is a good idea to check your traffic history with the prosecutor (they have a copy) and answer any questions they have.

If Queensland Transport does not send a prosecutor to the court they will likely have emailed the court outlining their position of whether you should get a hardship lcience or not.  The Magistrate in that case will tell you what Queensland Transport has said.

The court will start when the Magistrate enters, please stand whenever the depositions clerk calls ‘all rise’ and then wait for the Magistrate to sit down before sitting yourself.

Wait for your matter to be called and then approach the table where the Prosecutor is. You will stand to the far left of the table. Remain standing while the Magistrate asks what you are doing. Tell the Magistrate that you are applying for a special hardship licence. Please address the Magistrate as “Your Honour”. The Magistrate will then ask you to sit.

The Prosecutor will tell the court their position on the application Once the Prosecutor finishes the Magistrate will read the affidavits and if they have any queries they will ask you.

If a special hardship licence is granted a Magistrate will ask you to sit outside the court or at the registry to wait for your order. It is this document that you take to Queensland transport. Please check the order is correct before leaving the registry.

For more information on how a Magistrate court works go to www.justice.qld.gov.au/justice-services/courts-and-tribunals/going-to-court and select virtual tour from the menu to the left.

 

I was granted a special hardship licence – now what?

If you are granted the Licence then before you can drive again then you need to go to Queensland Transport and have your licence re-issued as a special hardship Licence. Also unless you are returning to work or driving for work purposes from Queensland Transport then you would need a lift home as your Licence would not cover for the trip between Queensland Transport and your home but it would cover you to drive from Queensland Transport back to work.

You must also comply with the requirements of any court order in relation to your licence, this may be the requirement to complete a logbook or similar. Also throughout the period of the special hardship Licence you must keep a copy of the court order in any motor vehicle you drive.

If you are caught driving outside the terms of your licence then you will be disqualified for the balance of the disqualification period left to run plus an additional 3 months.

REMINDER: YOU CANNOT DRIVE FROM THE COURT TO QUEENSLAND TRANSPORT

 

What happens if the Magistrates Court refuses to grant my application for a SHO?

If the court does not grant the SHO, your licence suspension will continue for the period of the licence suspension that had not been served before the application for the SHO was made. You my be able to appeal the decision not to grant the special hardship but very strict time limits apply.

 

How long will my SHO apply for?

The SHO will apply for the length of the suspension period detailed on your suspension notice and begins from the date of the court order.

 

Can I apply to have my SHO driving restrictions varied?

Yes. You may apply to a Magistrates Court to vary the restrictions stated on your SHO if the

circumstances under which you are required to drive have changed since the SHO was originally granted to you.

 

What happens if I do not comply with the restrictions under my SHO?

If a court convicts you for the offence of failing to comply with your SHO or you incur 2 or more points under the SHO, your licence will be disqualified as follows;

  • if your SHO still applies — the balance of the order period still to be served by you as well as an additional three months
  • if your SHO no longer applies — three months from the day of your conviction (this only applies where you are charged with an offence of failing to comply with your SHO conditions)

 You cannot incur any demerit points during a SHO, even incurring 1 demerit point will lead to your SHO being cancelled.

 

What happens when the period of my SHO ends?

When the SHO period has ended, you may return to Queensland Transport to have your licence reissued (at no charge) without the ‘X3’ condition code. We have received conflicting advice from Queensland Transport in regards to what happens to your demerit points incurred before the SHO was granted and that are still “on your record”, our understanding is that you will have no demerit points after the SHO finishes but you should check this when getting your licence back after the SHO finishes.

 

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

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

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Visit our website at www.drivinglaw.com.au
  3. Call us on 1300 952 255 seven days a week, 7am to 7pm
  4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

 

This article is for general information only and is not a substitute for legal advice. Please visit our disclaimer page at www.drivinglaw.com.au/disclaimer.html Clarity Law's liability limited by a scheme approved under professional standards legislation.

If you appear in a Queensland court charged with a traffic offence such as drink driving, drug driving or dangerous driving and plead guilty or are found guilty then the court will likely disqualify your drivers licence (many offences such as drink driving and drug driving carry mandatory minimum periods of disqualification). The purpose of this article is to give people some guidance as to what occurs after you leave the court if your licence has been disqualified.

 

Do I Get to keep my Physical Licence?

No, you are required to surrender your licence to Queensland Transport by the day after the court disqualifies you or to the police prosecutor at the court. It is an offence to be in possession of a licence if you have been disqualified by a court.

The surrender of your licence may in some circumstances deprive you of your main form of identification, you may therefore wish to attend Queensland Transport before the court and obtain a proof of age card to help with identification during your period of disqualification.

When does the Disqualification Begin?

The disqualification starts immediately. You would not be able to drive once you leave the court

What does this mean if you hold a licence granted outside of Queensland?

If disqualified, you are not authorised to drive on a road in Queensland under your non-Queensland driver licence during the disqualification period.  If your licence is from another state in Australia then your disqualification should prevent you from driving anywhere in Australia. You will need to check with your local transport authority.

What happens if you have any Industry or Driver Authorisations?

The disqualification period will also apply to any Industry or Driver Authorisation held by you (for   example a taxi, tow truck, bus, limousine, dangerous goods, driver trainer or pilot vehicle licence).   At the end of the disqualification period you will be required to visit or contact a Queensland Transport Centre or licence issuing agent to have your eligibility to hold an Industry or Driver authorisation reassessed.

What happens if you drive during your disqualification?

If you are found driving during your disqualification period, you will be charged with disqualified driving and you will be required to appear in court. If the charge is proven, the court will further disqualify you for a period of at least 2 years to a maximum of 5 years and may impose a substantial fine or sentence you to term of imprisonment for up to 18 months.

How do I pay my fine?

Generally any fine can be referred to SPER. You can arrange with SPER to make payments on the fine or to pay it in one lump sum. For more information on SPER visit www.sper.qld.gov.au/. Alternatively you can pay the fine at the court but there may be a short delay as the information from the sentence is entered into the database.

Offender Levy

As from 21 August 2012 all people who plead guilty or are found guilty in the Magistrates Court must pay a levy (currently $125.80) in addition to any penalty imposed by the Magistrate.  The levy is separate from any monetary penalty we have advised the Magistrate may impose.  More details can be found at http://www.courts.qld.gov.au/about/offender-levy

What happens after my disqualification period?

After the period of disqualification has ended you will need to attend Queensland Transport and reapply for your licence. You cannot simply start driving after your disqualification period has ended. Please don’t drive to Queensland Transport as you are not entitled to drive until after you have been to Queensland Transport. Also remember to bring 100 points of ID.

After you have been disqualified you will be on a probationary licence for 1 year, this means that;

  1. You have only 4 demerit points available
  2. You have a zero alcohol limit for 1 years

You do not have to re-sit any tests to get your licence back (if you have held a licence in the past 5 years).

Please note that if you have more than one disqualification period imposed for example if you committed two offences that carried separate disqualification periods or you were already serving a disqualification then your disqualifications may run cumulatively meaning they run one after the other and not at the same time. You will need to check with Queensland Transport about this. If your licence disqualifications add up to more than 2 years you might be eligible to apply for a licence reinstatement after 2 years. More information on licence reinstatements is available on our website.

Interlock

Please note you may be required to have an interlock device fitted to your vehicle once you are eligible to obtain your driver’s licence back. This requirement applies to certain drink driving charges. The court has no discretion to allow you not to do this as it is a Queensland Transport licencing requirement. This is an area that is subject to constant change, for more information visit www.tmr.qld.gov.au/Licensing/Licence-suspensions-and-disqualifications/Alcohol-ignition-interlocks.aspx

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

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

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is for general information only and is not a substitute for legal advice. Please visit our disclaimer page at www.drivinglaw.com.au/disclaimer.html Clarity Law's liability limited by a scheme approved under professional standards legislation.

%PM, %04 %127 %2019 %12:%Apr

Time Limit Change for Special Hardship Orders

Written by

Recent changes to the legislation covering special hardship orders (SHO) will increase the amount of people who can apply in Queensland.

Currently people who elect to go on a good driving behaviour period after accruing too many demerit points and then exceed the demerit points on that driving behaviour period or those who commit a high speed offence (over 40 km/h) may be able to apply for a special hardship order to allow them to drive for certain specified reasons, generally work related. All the details on special hardship licences and the eligibility requirements can be found on our special hardship information page.

The time limit for applying for the special hardship licence was strictly 21 days after the licence became suspended.

However as of 1 April 2019, the application period for suspended drivers seeking a SHO was removed. The amendment provides flexibility by taking into account that a suspended driver may experience a change in circumstances at any point during their licence suspension period that would require them to apply for a SHO. From 1 April 2019, a driver on a suspended licence may apply at any point in time during their suspension for a SHO should they need to and should they meet the eligibility requirements.

None of the eligibility requirements have changed and the granting of the special hardship order is still up to a Magistrate but the amendment to the legislation provides more flexibility to people on a suspension who suddenly find their circumstances changing and the need to drive becoming a necessity.

Its important to note that the period of the special hardship order has not changed. The period of the suspension before applying for a special hardship licence will not count towards the period of the special hardship licence. In most cases the SHO runs for 6 months that means if a person’s licence was suspended 3 months ago and they then decided to apply for a special hardship order they would still have to serve at least 6 more months on the SHO.

For more information check out of website at www.drivinglaw.com.au

%PM, %31 %198 %2019 %13:%Mar

Refusing a Breathalyser Test in Queensland

Written by

In Queensland, it is an offence to fail to provide a specimen of breath, or saliva for the purposes of determining a person’s blood alcohol concentration. Strictly speaking, there are two types of offences for failing to provide a specimen of breath or saliva. The first offence occurs when a person fails to provide a sample other than at a police station or in a booze bus. It is common for this kind of offence to occur at a roadside RBT, although it could happen somewhere else, such as a person’s home. The other offence occurs when a person fails to provide a specimen at a police station or booze bus.

Similarly high penalties attach to both offences.

The “roadside” failure offence attracts a maximum penalty of a fine in excess of $5,000 or 6 months’ imprisonment. Failure to provide a specimen of breath, after being taken to a police station or booze bus, is treated the same as a high-range drink-driving offence: the maximum penalty is a fine in excess of $3,500 or 9 months’ imprisonment and disqualification from driving for at least 6 months (for a first offence).

Work licences are available for anyone who is charged with a “roadside” failure to provide offence (as long as the person is eligible for a work licence). No work licence is available for the “police station” (or booze bus) failure to provide charge.

The word “fail” is broader than mere refusal (although it also includes refusal) – a person “fails” to provide a sample if that sample is insufficient to conduct the test or is not provided in such a way that allows for the test to be conducted. For example, if a person starts to breathe into a breathalyser, but stops before a sufficient sample is taken, that could amount to a “failure” to provide a sample, and the police could charge the person with failing to provide a sample. Similarly, if the person sucks in air, instead of blowing into the breathalyser, that person could also be charged with this offence.

Police Powers to Require a Sample of Breath, Saliva, or Blood

Police have the power to require someone to provide a specimen of breath, saliva, or blood for the purposes of determining that person’s blood-alcohol content. A police office may only make this request if the officer reasonably suspects that the person either drove a motor vehicle, attempted to drive it, or was in charge of the vehicle up to 3 hours prior (note that the definition of being “in charge” of a vehicle is quite broad – the person need only be in a position to be able to operate the vehicle without first taking control of the vehicle from someone else). The police may also require someone to provide a specimen of breath, saliva, or blood at the scene of a traffic accident that caused injury, death, or damage to property.

Once a police officer makes such a request, that officer may take the person to the nearest police station, or to some other place (such as a hospital) that has the necessary equipment for carrying out a breath or saliva test. The person may be taken there by force, if necessary. The police officer may require multiple samples of either breath or saliva (or both) if it is reasonably necessary to do so in order to complete testing.

Defences

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

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

Contact Clarity Law for any advice or information on a Queensland drink driving charge.  We are open 7 days a week, Phone 1300 952 255.

There seems to be some amount of confusion as to whether or not you can commit a drink driving charge in Queensland within a private are such as your driveway, or in a, say a private place such as a car park. We are often contacted by people who believe they should not have been charged with a drink driving charge as they were not on a road at the time of the offence. In Queensland the legislation is fairly clear when it comes to drink driving. The police have to essentially prove three things to obtain a conviction for a drink driving offence The first is the fact that the person had alcohol in their system, the second is that they were the driver or in charge of the vehicle at the time of the offence. The last thing that must be proven is where the offence occurred.  The legislation provides that the drink driving an offence can be committed can be committed on or upon a road or elsewhere.

 

Section 4 of the Transport Operations (Road Use Management) Act defines a road and elsewhere to mean any place other than a road, so in essence the definition where a drink driving offence can occur is on a road, or in any place other than a road. So you can see that there is no place where you can be driving and not be potentially charged with a drink driving charge. Interesting, a motor vehicle may still be considered a motor vehicle even if it is impossible to drive, although there are occasions where a person is caught in charge of a motor vehicle that is not actually driving a motor vehicle, but occupying the front seat of the vehicle, or being in charge by way of the fact that they have access to the vehicle and was shown intention to drive.

 

If you need any information on drink driving in Queensland visit our drink driving page at www.drivinglaw.com.au/services/drink-driving  or call 1300 952 255

 

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