Clarity Law - drivinglaw.com.au

South East Queensland's most experienced traffic law firm

Russell Tannock

Russell Tannock

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Drink Driving on a Lime Scooter

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.

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.

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.