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.
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.
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?
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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
We are asked everyday by people whether they can get a work licence, day licence or special hardship licence if they are disqualified by the courts or about to be.
In Queensland there are only two licences to allow a person to drive during a period of licence disqualification or suspension, these are work licences and special hardship licences.
A work licence is only available to people who are charged with a drink or drug driving offence and need to drive for work purposes. The Government however only allows certain people to apply for a work licence. To apply for a work licence you must be on an open Queensland drivers licence and the alcohol reading must be no more than .149. You cannot apply if in the last five years you have had your licence suspended (unless it’s a SPER suspension), cancelled or disqualified. This applies regardless of your circumstances (eg. You will lose your job, you can’t get your children to school etc). A work licence must be applied for at the time of sentencing for the drink or drug driving charge, it cannot be applied for later. For full details on applying for a work licence see our work licence page.
A special hardship licence is only available to Queensland open or provisional licence holder who elect to go on a good driving period and lose 2 or more demerit points during that one year period. A special hardship can also be applied for people who drive more than 40 km/h over the speed limit (high speed offence). Like a work licence a person with a disqualification or suspension of the licence in the last 5 years cannot apply (a SPER suspension is an exception). Unlike a work licence a Court can allow a person to drive for things other than for work purposes. These need to be extreme circumstances such as on-going specialist, medical or counselling appointments.
The rules for a special hardship licence application are very complex, more details can be found on our special hardship licence page.
There are no licences available if you have already been disqualified by a Court and subsequently find you need a licence nor are there licences available if you have been charged with offences such as demerit point unlicensed driving. If you do not qualify for a work licence or special hardship licence and are facing a disqualification by the courts then you will not be allowed to drive during that disqualification.
This area of law is changing constantly and you should get good legal help if you need to apply for a work licence or special hardship licence.
This article is written by Steven Brough one of Queensland’s most experienced traffic lawyers and contains general advice only not legal advice. For more information on work licences and special hardship orders visit the driving law website or call 1300 952 255 7am – 7pm seven days a week.
This article is for general information only and should not be relied upon as legal advice.
Often people are completely overwhelmed by the thought of attending the Brisbane Magistrates Court for a drink driving or DUI charge. In Australia these types of matters are never televised and so people often have no idea what the process will be like or worse think it will be something like the American process they have seen on TV.
This article gives some idea what a typical Court appearance will be like for an unrepresented person in the Brisbane Magistrates Court. It is important however to note that in almost all cases having a Lawyer represent you will result in a shorter disqualification period, smaller fine and much less stress.
What will happen in Court?
Firstly you should arrive at least 25 minutes before your scheduled Court start time. In the Brisbane Magistrates Court all drink driving matters begin at 9am and are generally heard in court 33 on level 7.
The Brisbane Magistrates Court is located at 363 George Street. There is another Magistrate Court in Brisbane known, very confusingly, as the Brisbane Magistrates Court – Roma Street. It would be very unusual if your matter were to be held in the Roma Street Court as this is reserved for criminal matters.
When you enter the Brisbane Magistrate Court there is a security point which you must go through. Once you have been through this on your right hand side is a number of electronic noticeboards which will list the Court number your matter will be heard in. You should then take the elevator to the floor where the Court is.
Eventually a Police Prosecutor will arrive you should then go and speak to them in the Court room. The Prosecutor will provide you the outline of the case against you, breath analyst certificate and your traffic history. This document is generally known as the “QP9”. The Police Prosecutor will only want to know whether you are pleading guilty, not guilty or seeking an adjournment. Given the large amount of people waiting to see the Prosecutor they cannot and won’t be able to engage in any real discussion of your matter.
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. If the details on the QP9 are wrong it might be appropriate to seek an adjournment.
The Court will start when the Magistrate enters, please stand whenever the depositions clerk (the Magistrates assistant) or Police Prosecutor calls ‘all rise’ and then wait for the Magistrate to sit down before sitting yourself.
Typically those with Lawyers will go first and then those people seeking an adjournment will go next and finally those people who are pleading guilty will go last. There may be 30-60 people on any given day in the Court so it is not unusual for a unrepresented person pleading guilty not to be heard until 11am or even later.
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. At this point you must tell the Magistrate what you want to do. Please ensure you address the Magistrate as “Your Honour”. If you are pleading guilty the Magistrate will ask you to confirm this and then 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 traffic history and breath analyst certificate and if they have any queries they will ask you. If you have not already filed any character reference tell the Magistrate if you have some, the Police Prosecutor will take them from you and will give them to the Magistrate. You then have an opportunity to explain to the Magistrate what happened with your drink driving charge and anything else you wish to raise.
Once you have finished speaking and when the Magistrate has no further questions for you they will impose the sentence. Given that all drink driving charges in Queensland carry a mandatory period of disqualification then you will be required to surrender your licence to the Prosecutor. Once this is done you may leave the Court.
If you are eligible to apply for a work licence and are choosing to do so your matter will be adjourned to another day to hear that work licence application. You must apply for a work licence before the court imposes your sentence, you cannot apply afterwards. More details about work licences can be found here
For more information about drink driving or DUI’s visit our drink driving website.
While you are free to represent yourself in Court, engaging Clarity Law to act for you has a number of benefits including;
We appear in Brisbane Magistrates Court several times for with people charged with drink driving, it is this experience that allows us to get the best result for clients. Other law firms simply don’t have the experience that we do and don’t know the judges like we do. We offer one of the most competitive prices for drink driving charges in Queensland click here to see what we will charge. If you want to engage us or just need further information or advice then you can either;
Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. Its represents information about the law in Queensland and since publishing the law, the practice of the court or the interpretation of that law may have changed.
There are three different levels of drink driving for an Queensland open licence driver:
Low - .05-.099
Mid - .1-.149
High - .15 and above
If you are charged with a high range drink driving charge in Queensland (also known as DUI or UIL) the mandatory minimum disqualification, for a first time offender, is 6 months. Obviously your penalty will vary based on your exact alcohol reading, your traffic history, personal circumstances and the Magistrate handling your case. For more information see our link www.drivinglaw.com.au/services/drink-driving.html
Whilst it is a given that someone charged with a high range drink driving charge is going to get a more severe penalty than that of a low or mid-range offender there is also other repercussions that result from a high range drink driving charge.
You will not be able to apply for a work licence
Work licences can only available to low to mid-range drink drivers. Regardless of your situation there is no way around this. There are other requirements you must meet to be eligible. For more information on this please see www.drivinglaw.com.au/services/work-licences.html
You will be subject to an Alcohol Ignition Interlock Device
Anyone charged in Queensland with a high range drink driving charge (or 2 low or mid-range drink driving charges within 5 years) will be subject to having an alcohol ignition interlock device fitted to their vehicle at the conclusion of their suspension. The alcohol ignition interlock device is similar to a breath test device and is connected to your vehicles ignition. You must blow into with a zero alcohol limit before your vehicle will start. You will need to have the alcohol ignition interlock device for a minimum of 1 year.
The alcohol ignition interlock device needs to be installed by an approved provider and costs vary depending on your vehicle size and if you are a pensioner. You will incur the costs associated with the rental, installation, servicing and removal of the interlock from your nominated vehicle.
If at the end of your suspension period you decide not to have an alcohol ignition interlock device installed in your vehicle, you will be unable to drive for a further 2 years from the date your Court suspension ended.
Whilst there are grounds for an exemption, there are few and it is difficult to obtain. Grounds of exemption can be if you are residing in a remote location (over 150kms from an alcohol ignition interlock installer) or living on an island, have a medical condition preventing you from being able to use the device or you have extenuating circumstances. Please note that extenuating circumstances cannot be that you are unable to install the interlock for employment or financial reasons.
If you are facing a high range drink driving charge it is important to have an experienced Lawyer represent you to ensure you obtain the absolute shortest suspension period and fine possible.
Getting legal representation
Here at Clarity Law we represent drink driving charges 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. Every week we appear in Brisbane, Gold Coast and Sunshine Coast courts helping clients with drink driving offences.
For more information visit our drink driving page or call 1300 952 255 7am – 7pm seven days a week
The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.
Clarity Law's liability limited by a scheme approved under professional standards legislation.
When most people hear DUI they usually associate it with a drink driving charge. Whilst this is correct, as DUI stands for ‘driving under the influence’ it can in fact relate to either a drink or drug driving offence.
There are three levels of drink driving charges, being
Driving with a low BAC (blood alcohol concentrate) reading of between .05 and .099. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).
Driving with a mid BAC (blood alcohol concentrate) reading of between .1 and .149. This charge carries a mandatory minimum of a 3 month suspension of your licence.
Driving under the influence (“DUI”) of alcohol charge is a result of a reading of .15 or above. This charge carries a mandatory minimum of a 6 month suspension of your licence.
A DUI drug charge means that you were charged with ‘driving under the influence of drugs’. Drug tests search for traces of THC (active ingredient in marijuana), MDMA (speed or ecstasy) and methamphetamine.
There are two levels of drug driving charges, being
Driving with a relevant drug present in your system
This charge is issued when a drug test indicates there is drugs present in the driver’s system but they appear to be unaffected by the drugs or substance. If you are charged with this your driver’s licence will be suspended for a period of 24 hours. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).
Driving under the influence of drugs (“DUI”)
This charge is issued when a drug test indicates there is drugs present in the driver’s system and/or the driver appears to be affected and impaired by drugs. This will be ascertained by the driver’s appearance (eyes, facials expressions etc), behaviour and mannerisms. If you are charged with this your driver’s licence will be suspended immediately. This charge carries a mandatory minimum of a 6 month suspension of your licence. Whilst if you are sentenced to in excess of this period the Magistrate can take into consideration the length of time you have already had your licence suspended, if you receive the minimum of 6 months, this period will be served in full from your Court date.
Driving under the influence of drugs can be a result of illegal drugs, synthetic drugs (designed to mimic the effects of illegal drugs) prescription drugs (Xanax, Valium) and even some over the counter medical prescriptions. Anytime that you are effected by a substance which alters your abilities in any way you could be charged with driving under the influence of drugs.
A roadside drug test is simply an oral swab which is tested immediately and will indicate if there is traces of drugs in your system. If the test indicates the presence of drugs you will need to undergo another drug test which is sent to a Government laboratory for testing. You will receive a drug analysis certificate when it is available from laboratory testing. If your roadside drug test indicates no drugs in your system, the Police are still able to order you to undergo a blood test if they believe you are under the influence of a drug or substance.
We have been successful in the past in having some drug DUI charges downgraded to driving with a relevant drug in the drivers system by in putting forward to the Police Prosecutions submissions giving reasoning and information as to why the client should not have been charged with a drug DUI and have only received a driving with the relevant drug in their system charge.
Whilst with alcohol there are rough guidelines to how long the alcohol will take to be processed and out of your system there is no such recommendation for how long drugs may stay in a person’s system for. Many people find themselves being charged with driving with drugs in their system long after they have consumed or ingested drugs. Because each person responds to the consumption of drugs in a different manner based on their personal chemistry, past use, type of drug taken, amount of drug consumed, height, weight and other factors, unlike alcohol consumption there is no way in when to tell when the drugs have left your system.
It is important to note that you do not have to be driving your vehicle to be charged with a drink or drug driving offence, you could be charged if you are merely sitting in the driver’s seat.
Charges of low or mid BAC or a driving with a relevant drug in your system, depending on your circumstances and previous traffic history, can allow you to apply for a work licence to be issued to you for the duration of your suspension period. An alcohol or drug DUI charge however eliminates this option.
Here at Clarity Law we represent people charged with drink and drug driving offences 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;
Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. We are also not health professionals and our observations on drink driving and what effects a person’s BAC reading is based on our knowledge of representing thousands of drink driving client’s overs the past 15 years and not any specific medical training.