Clarity Law - drivinglaw.com.au

South East Queensland's most experienced traffic law firm

Russell Tannock

Russell Tannock

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
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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.