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Immediate suspension for drink driving

Drink driving legislation in Queensland now provides that any person who is charged with a drink driving offence that is a mid-range or high-range offence will immediately lose the ability to drive. Those persons who have a low-range drink driving charge only have a 24-hour prohibition on driving after being arrested.  A low range drink driving offence applies to readings between .05 and .099, a mid range drink driving offence applies for readings between .1 and .149 and a high range drink driving offence is anything above that.

 

People who have received an immediate suspension notice from the police will often suffer a huge shock to both work and personal life arising from the inability to continue to drive. While it’s true in Queensland, we have mandatory periods of disqualification, the impact should not be overlooked.

 

The legislation does provide some levels of relief to the impact on the loss of a person's licence. The first area in which the legislation provides some relief is that the period of suspension that a person has served under the notice may be taken into account by the Magistrate when setting the disqualification period for the drink driving charge. This does not mean that the disqualification that the court sets will run from the date of arrest, it will still run from the day that the Magistrate disqualifies the person's licence, however in setting the penalty the Magistrate may take into an account the period that a person has spent off the road.

 

This is meant to work in the following way. If the Magistrate was considering imposing a disqualification of two months and the person had already been suspended for a period of one month, then the Magistrate should set a penalty of one month only.

 

In practise, the period of time a person has spent under suspension may very well be taken into account by the Magistrate but each Magistrate treats that period of suspension quite differently. As the legislation doesn't provide that the Magistrate must lower the disqualification as a result of the person's immediate suspension period, simply then it may be taken into account, each Magistrate will use their own judgement as to how much they take into account the immediate suspension period.

 

The other way the legislation provides some relief is that where a person is challenging a drink driving charge or applying for a work licence, then, under the act you are able to apply to the court for an immediate return of your licence. The requirements for the application are very similar to a work licence application in that a person must file an affidavit of themselves and an application form. This is known as a Section 79E Application. Further information could be found on our website at www.drivinglaw.com.au/blog/item/3-all-you-need-to-know-about-section-79e-applications.html

 

In practise this type of application is generally of most use where a person's court date for the hearing of a work licence application is some time in the future. For instance, Southport Magistrate's Court will not hear work licences on the first court date, so for example, say you had a mid-range drink driving charge and were immediately suspended and your first court date was three weeks into the future, then you will be suspended for the period up until your first court date plus whatever period runs from the date of your first court date to when the application for work licence is actually heard. This would generally be at least a week or two after the initial court date as Southport Magistrate Court only hear work licence applications on Tuesdays at 9am.

 

To mitigate that period of suspension, a person could lodge an application for a Section 79E Licence prior to the first court date and seek the ability to continue to drive up until the Magistrate ultimately deals with the entirety of the work licence application which as stated above, may be five weeks after the arrest.

 

There are strict timelines applying for people who are wanting to apply for a section 79E Licence and as such you need to take immediate legal advice should this be something you wish to pursue.

 

Finally, we need to discuss the consequences of driving whilst on the immediate suspension. The law is extremely harsh in this regard. If you are caught driving whilst immediately suspended and before the court ultimately rules on your drink driving offence, then that driving will be treated as essentially driving whilst disqualified and will attract a minimum licence disqualification of two years. This would then be added on top of any period of disqualification you may receive for your drink driving charge.

 

We have had many examples where clients have recorded a drink driving charge, been arrested, then released and have immediately gone back to their car and started to drive again.  As they breach the immediate suspension, their disqualification period can end up being in excess of three years when the drink driving disqualification is added on, especially where they have returned to the car still over the legal limit for driving.

 

In those cases the potential three-year disqualification cannot be mitigated by applying for a work licence as the driving under the immediate suspension charge eliminates that possibility.

 

For more information contact us on 1300 952 255. We appear in Southeast Queensland Courts every week conducting traffic matters such as drink driving, drug driving and disqualified driving. We can assist you should you be needing a 79E licence or work licence, or simply where you have a drink driving charge.

 

This article is subject to our disclaimer notice which can be read at www.drivinglaw.com.au/disclaimer.html

 

Published in Legal Blog

We recently appeared in the Sandgate Court for a client facing the real prospects of a prison sentence. The client had been charged with unlicensed driving due to a previous court ordered disqualification and high range drink driving or driving UIL (also sometimes referred to as a DUI).

 

Making the situation much worse for the client is that he had, in the words of the Magistrate, a terrible history that included eight previous disqualified driving charges and seven previous drink driving (UIL) charges. In the previous five years there were two high range drink driving charges alone. As a result of the legislation where a person has three high range drink driving charges within five years, a prison sentence must form part of the penalty imposed by the Magistrate. This doesn't mean that a person will necessarily go to jail, but it means a jail sentence will be imposed and the question will then become whether or not they should get an immediate parole release date.

 

In our client's circumstance, we had to fight very hard to try and keep him out of jail. Specifically, we were seeking that the court impose a jail sentence for the drink driving charge with an immediate parole release meaning the client would be released from the court that day with a jail sentence hanging over their head should they breach their parole.

 

We also had to deal the disqualified driving charge and in that circumstance we sought a probation order so that in essence, the client would be on a parole and a probation order at the same time.

 

Ultimately, we were able to convince the Magistrate to do this given that the client clearly had a long standing alcohol abuse issues, even though he had never sought treatment in the past. One of the things that was the most concerning for the Magistrate was that he had spent time in jail for the exact same charges two years ago. Therefore, our job was made particularly difficult as we could not argue that a jail sentence with actual imprisonment was not an appropriate sentence because that had previously been imposed by an earlier court for the exact same charges.

 

The client did not help himself in that he failed to obtain the type of references that we had suggested that he obtain and had not done any of the driving courses that we had suggested. We did have the client assessed by the Probation and Parole Officer at Sandgate Court and ultimately they informed the court that there were courses and structures that could be put in place to try and minimise the likelihood that the client would reoffend. The Magistrate said that she was faced with a difficult task in that deterrence is the number one issue for the court. That is deterrence specifically of our client from committing these offences again and deterrence of anyone else committing this offence. If a too light a sentence is imposed then deterrence of our client may not be effective and deterrence of the general public committing the same type of offences would also be diminished.

 

Ultimately, we were able to convince the Magistrate not to send our client to jail. But it was perhaps the closest you can come to a potential prison sentence without actually being sent to jail. Our client will now be subject to quite close and strict supervision by Probation and Parole to try and ensure that he does offend again.  If he does offend in the next year he could be sent to prison for 28 days for breaching his parole order with further punishment likely.

 

There are some important lessons to learn from this type of offending and that is, it is important for a person to ensure that they have done everything prior to the court case possible to try and convince the Magistrate that they deserve a further chance by not being sent to jail. The other lesson to be learned is that disqualified driving especially where it combined with a drink driving charge (UIL) will be treated seriously by the Courts and there is a high possibly of receiving actual prison time for these types of offences, especially where like our client, the traffic history is poor.

 

If you need any information on drink driving offences or disqualified driving offences please contact us on 1300 952 255.  We appear in all courts in South East Queensland from Southport to Gympie.  

 

Published in Legal Blog
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Defences to a Disqualified Driving charge

Disqualified driving is an extremely serious traffic charge in Queensland.  The Courts are particularly hard on these types of offences as to be charged with disqualified driving you must have already been disqualified by a court.   Disqualified driving is the most common traffic offence that causes people to be sentenced to jail.

The charge is different to a simple unlicensed driving charge as there must be a previous disqualification by the courts still in place at the time the offence was committed.

The court will impose a further minimum disqualification of 2 years however there may be circumstances where there is a defence to a disqualified driving charge.

 

The vehicle was not driven on a road

The law requires that to be guilty of disqualified driving the person must be driving a vehicle on a road.  If the vehicle is being driven on private property this may be a full defence to the charge.

 

You weren’t driving the vehicle

There are often occasions were someone has taken or borrowed your vehicle and either triggered a speed camera or more seriously has evaded the police.  In those circumstances it is critical to get immediate legal advice as very short and strict time limits may apply to being able to nominate another person as the driver.  If you fail to nominate the other driver within the time limits then you can be legally declared the driver, also if you pay a speeding ticket or infringement notice may deemed to be the driver.

 

You were driving for an emergency

The law allows an exception for driving in an emergency.  This in the past only extended to driving emergency situations such a person to hospital where no other transport was available.  The courts have recently however begun to accept that not all situations require a dire emergency.  For example we were successful in having a disqualified driving charge withdrawn against our client in the circumstances where our client drove to a chemist to get Panadol because everyone in the house was sick and he was the only person who could drive.

The key question is not what a reasonable person would have done but what an ordinary person in the shoes of the accused could have done.  Once the defence is raised the onus fall on the prosecution to prove an ordinary person would not have acted in the same way as the accused.

 

There are also other defences such as mental capacity which are not covered in this article.

 

If you have a defence then in most cases you will need to take the disqualified driving charge to trial to be found not guilty.  There are however often occasions where it is possible to make submission to the Prosecution Service to drop the charge before it goes to trial.  This is a very involved process and should never be undertaken without a lawyer.

If the matter goes to trial then the charge would be held before a Magistrate but not a jury.  If the court finds a person not guilty then that is the end of the matter.  If however after trial a person is found guilty then it is important to note the further disqualification period only starts from when the Magistrate makes his or her decision.  The Magistrate will also impose a fine and depending on a number of factors including traffic history might impose a term of imprisonment which may or may not be partly or wholly suspended.

 

If you think you have a defence, want to engage us or just need further information then you can either;

  1. Visit on disqualified driving webpage
  2. Use our contact form
  3. Call us on 1300 952 255 seven days a week, 7am to 7pm

 

 

This article is written by Belinda Smyth and provides general information only.  It is not intended to be legal advice.

Published in Legal Blog
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Unlicenced Driving

The penalties handed down for unlicenced driving charges can vary greatly depending on the circumstances on how you came to be unlicenced in the first place.

If you forgot to renew your licence or you have never held a licence

The penalty for this type of unlicenced driving charge is at the Magistrates discretion and in most circumstances, depending how long your licence had been expired or your traffic history, can result in no suspension being put on your licence and you just receiving a small fine.   There are however circumstances where if you were never licenced that the court will impose a 3 month disqualification.

However, if you have received an unlicenced driving charge in the past 5 years and are caught again then there is a penalty of between 1 to 6 months.

If you had a SPER debt and failed to pay it

Often people refer their fines to SPER to pay off. When SPER received the debt a payment agreement is made between SPER and yourself. Should you fail to honour the agreement and make the agreed payments your licence will be suspended for anywhere between 1 to 6 months. The mandatory minimum suspension time is the 1 month if you were caught driving on a SPER suspended licence and the Magistrate has no choice but to suspend your licence. In these types of unlicenced driving charges the fact that you did not receive the letter from SPER advising that your licence was going to be suspended on a certain date is not an acceptable defence. The Legislation states that Queensland Transport only need to show they sent the letter to you, not that you received it.

If you are demerit point suspended

If you exceed your demerit point limit (12 points in 3 years) you will be sent a letter from Queensland Transport. This letter will give you the option to have your licence suspended for a 3 month period or to go on a good driving behaviour period. If you do not reply and advise them which option you would like to select by the nominated date you will automatically be given the 3 month suspension. If you are caught driving during the 3 month period the penalty is a mandatory 6 month licence suspension.  With this one particular charge, unfortunately engaging a Lawyer cannot achieve a lesser disqualification period.

Failing to have your licence re-issued by QLD Transport after serving a suspension period

If your licence is suspended by the Court you should have handed your licence in when the penalty was handed down in Court. Upon completion of the suspension period you must attend Queensland Transport and have your licence issued again.  Until you do this you are deemed suspended still and if you are caught driving the penalty can be between 1 to 6 months.

Driving during your Court or Police ordered licence disqualification period

If you are disqualified from driving in a Court or are on a licence suspension period by the Police and are caught driving within the time you were ordered not to, it is classed as disqualified driving which holds a licence disqualification anywhere from 2 to 5 years. For more information on disqualified driving charges see - http://drivinglaw.com.au/services/disqualified-driving.html

Many people are unaware that they are unlicenced when they are charged with the offence. This can be due to multiple reasons. Some ways to avoid being expectantly charged with unlicensed driving are:

  • Always ensure that your current residential address is known to Queensland Transport Department and SPER, if you have a debt with them.

 

  • If you work away from home you should have someone monitor your mail in case any correspondence comes to you advising you have an overdue SPER debt, you have exceeded your demerit point limit or you receive a fine.

 

  • If you have a SPER debt that is direct debited from a bank account always ensure there are funds available for the payments to come out from. Also, if you change banks or close a bank account ensure the SPER payments were not connected to that account. If so you need to advise SPER of the bank account detail change immediately.

 

Here at Clarity Law we represent unlicenced drivers in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients.  Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do.  We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

For more information visit our drink driving page or call 1300 952 255 7am – 7pm seven days a week

 

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  

Published in Legal Blog