Clarity Law

Specialist Traffic Law Firm Queensland
Wednesday, 24 May 2023 17:12

Is Drink Driving a Criminal Offence in Queensland?

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If you plead guilty to a drink driving charge in Queensland are you pleading guilty to a criminal offence and will a criminal conviction be recorded?  In other words Is drink driving a criminal offence in Queensland?


What are criminal offences in Queensland?

In Queensland we have 4 levels of offences,

  • Crimes

  • Misdemeanours

  • Simple Offences

  • Regulatory offences


Crimes are the most serious, misdemeanours are less serious and the least serious is simple offences and regulatory offences. Technically criminal offences comprise crimes, misdemeanours and simple offences but not regulatory offences.


Section 3 of the Criminal Code sets out the distinctions between the different types of offences and states;

(1) Offences are of 2 kinds, namely, criminal offences and regulatory offences.

(2) Criminal offences comprise crimes, misdemeanours and simple offences.

(3) Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.

(4) A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.

If the law does not specifically state an offences classification, it will be regarded as a simple offence.  As the law does not specifically state the classification of drink driving it is therefore considered to be a simple offence.


Simple offences

Simple offences and regulatory are the least serious types of offence in Queensland.    They are dealt with in the Magistrates Court.  They are also called summary offences.

Drink driving is a simple offence which does technically make it a criminal offence but not an indictable offence.


Misdemeanours and Crimes

Crimes and misdemeanours are indictable offences; that is to say, the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except if an indictment has been presented in the District or Supreme Court.  The law does provide that for certain situations an indictable offence may be dealt with summarily in the Magistrates Court (ss 552A–552J Criminal Code).


What are traffic offences in Queensland?

There is no legal definition of traffic offences in Queensland.  Drink and drug driving is considered to be simple offences but other driving related offences like dangerous driving are considered to be crimes or misdemeanours depending on how serious the facts are. 


Can some traffic offences be criminal offences?

Yes, dangerous driving causing death or being intoxicated is a crime.


What does the law say about recording a conviction?

Section 12(1) of the Penalties and Sentences Act provides that the court may exercise a discretion to record a conviction or not.

In considering whether or not to record a conviction, the court must have regard to all circumstances of the case, including:

  1. the nature of the offence; and

  2. the offender’s character and age; and

  3. the impact that recording a conviction will have on the offender’s economic or social wellbeing; or chances of finding employment.

The law is in place as it recognises that the recording of a conviction can have a huge impact on a person even years after the offence has been resolved in court.


How does the Magistrate decide whether to record a conviction?

Section 12 is not exhaustive which means the court must consider the factors in section 12 but can consider other things as well. 

Generally the court will be looking at:-

The nature of the offence

This is fairly obvious the more serious an offence the more likely a conviction will be recorded.  With drink driving the court will look at the BAC reading and whether any accident occurred.


The offender’s character and age;

Younger offenders are more likely not to have a conviction recorded for a drink driving charge.  This does not mean older offenders will automatically have a conviction recorded as an offenders character is also taken into account.  Character would usually be judged on a persons traffic and criminal history (if any).


The impact that recording a conviction will have on the offender

The impact of the recording of a conviction must be taken into account by the court.  Given the conviction is going to be recorded on the traffic and not criminal history a person would have to show how a traffic conviction will impact them negatively.  This might be a truck driver who if they get a conviction recorded their employer will fire them or they will find it hard to get employment in the future.  Employers are increasingly asking for new applicants for a job to show them their traffic history.

The inability to travel overseas or get insurance if a conviction is recorded might also be grounds for the court to consider.

In the past the courts have generally considered they should record a conviction for a traffic offences however the cases of Wilson v Commissioner of Police Clinton v Commissioner of Police  have shown that a magistrate cannot simply automatically record a conviction for drink driving without properly considering the factors in section 12.

As the judge in Wilson said

 “The recording of a conviction is both a legal and social censure, which results in a diminution of a defendant’s character in the community”


So is drink driving a criminal offence or not?

Drink driving is a simple or summary offence which under Queensland law is a criminal offence so yes drink driving is a criminal offence in Queensland but not a crime (we know it gets confusing).


So if drink driving is a criminal offence is this going to go on my criminal history?

While drink driving is a criminal offence the conviction, if recorded, would go on your traffic history but not on your criminal history.  This means a person doing a criminal background or police check would not see the drink driving offence recorded however it would show on a person’s traffic history for 5 years.


I don’t want the court to record a conviction on my traffic history

Well thought out submissions to the court addressing section 12 factors can help minimise the chance the court will record a conviction.  Remember you need to show how the recording of a conviction on a traffic history will affect that persons offender’s economic or social wellbeing or chances of finding employment.


Where can I find more information on drink driving?

We have a whole page on our website devoted to drink driving.


Are you able to help me with a drink driving charge?

Absolutely Clarity Law has helped thousands of people throughout South East Queensland acting as their drink driving lawyers to ensure the best outcome including the non-recording of a conviction.


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

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

  1. Use our contact form and we will contact you by email or phone at a time that suits you

  2. Call us on 1300 952 255 seven days a week, 7am to 7pm

  3. Click here to select a time for us to call you back

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

  5. Send us a message on Facebook Messenger

  6. Click to go to our main drink driving page

Last modified on Tuesday, 13 February 2024 19:10
Steven Brough

Steven Brough is the Founder of Clarity Law.  He is one of the most experienced traffic lawyers in Queensland having appeared in court many thousands of time throughout Queensland since 2010.  He has authored over 100 articles about every aspect of traffic law in Queensland. | This email address is being protected from spambots. You need JavaScript enabled to view it.