Displaying items by tag: dangerous driving

Introduction

The offence of dangerous operation of a vehicle ("Dangerous Driving") is one of the most serious traffic-related offences in Queensland law. The offence itself is not found in the traffic legislation but is a criminal offence, created by the Criminal Code 1899 (Qld). As such, convictions for this offence are recorded on criminal histories, not on traffic histories.

Furthermore, the sentences for this offence can be severe, depending on the circumstances. Maximum penalties range from 3 years imprisonment up to 14 years imprisonment.

The purpose of this guide is to provide you with an overview of the offence (including what the prosecution must prove in order to establish the charge) and discuss some defences which may be available to you should you find yourself being charged with this offence.

Who Can be Charged with this Offence?

Section 328A of the Criminal Code 1899 (Qld) states:

A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.

Maximum penalty – 200 penalty units or 3 years imprisonment.

To be found guilty of this offence, you must have done all of the following:

• operated (or interfered with the operation of) a vehicle;
• in such a way that was dangerous; and
• done so at any place.

The last requirement that it occur “at any place” means that you may be guilty of this offence, even if you are not driving on a public road at the time. Thus, you may commit this offence, even if you are driving on private property, or off-roading. The only exception to this broad meaning of “place” is anywhere that is licenced or authorised to race vehicles or conduct speed trials (eg, speedways and similar locations). These facilities are specifically excluded by the legislation.

Also worth noting is that this offence is that it may be committed if you either “operate” a vehicle dangerously or “interfere with the operation of” said vehicle. The word “operate” refers to the driver of the vehicle. However, the latter phrase casts a much broader net and does not require you to be the driver of the vehicle to be guilty of this offence. For example, a passenger who pulls on the vehicle’s handbrake or knocks it out of gear while the vehicle is moving could be found guilty of dangerously “interfering with the operation of” that vehicle.

What is “Dangerous” Operation of a Vehicle?

The legislation provides some guidelines to determining when a vehicle is operated (or interfered with) dangerously as follows:

“operates, or in any way interferes with the operation of, a vehicle dangerously” means … at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including –

1. the nature, condition and use of the place; and
2. the nature and condition of the vehicle; and
3. the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and
4. the concentration of alcohol in the operator’s blood or breath; and
5. the presence of any other substance in the operator’s body.

The “public” include any passengers that are in the car at the time of the alleged dangerous driving.

Furthermore, this definition does not require any proof of “intent” or “deliberateness” on the part of the driver. This is because the standard by which your driving is judged as dangerous is an objective one. It is immaterial whether you thought your driving was dangerous or not. In other words, it is for a magistrate or jury to decide whether was dangerous to the public in all the circumstances. It does not matter whether you were deliberately reckless, careless, momentarily inattentive, or doing your “incompetent best”.

However, your intentions and the deliberateness (or otherwise) of your actions may be relevant to deciding whether your driving was dangerous in all the circumstances. These factors are also relevant in determining the appropriate sentence if you plead guilty or found guilty after a trial.

Aggravating Features and Maximum Penalties

In addition to the foregoing, the legislation also prescribes certain circumstances that, if proved, make the charge more serious and, therefore, the sentence more severe. There are two groups of these “aggravating” features.

Firstly, if it is proved that you were:

1. adversely affected by an intoxicating substance (ie, alcohol and / or drugs); or
2. excessively speeding (ie, driving at more than 40 km/h over the speed limit), or partaking in an unlawful race or speed trial; or
3. previously convicted of dangerous operation of a vehicle.

The maximum sentence increases from 3 years imprisonment to 5 years imprisonment.

Secondly, if it is proved that you caused the death of, or grievous bodily harm to, someone else, the maximum sentence increases to 10 years imprisonment. If you cause death or grievous bodily harm and were intoxicated or excessively speeding, partaking in a race, etc at the time, the maximum sentence increases to 14 years imprisonment.

You will also be liable to a maximum penalty of 14 years imprisonment if you leave the scene of an accident knowing (or ought to have known) that someone has been killed or injured. The only exception is if you leave the scene to seek help for the person injured (whether medical help or otherwise).

While the maximum sentences have been set out above, the courts still have the discretion to impose sentences less than imprisonment, such as probation, community service, fines, etc. The only exceptions are if you are convicted for a second time of dangerous operation of a vehicle whilst intoxicated or if you have at least 2 previous convictions for drink-driving offences, or at least 2 previous offences for dangerous operation of a vehicle (without the aggravation of being intoxicated). In these circumstances, the legislation mandates imprisonment. However, it is still up to the court to decide whether a sentence of imprisonment requires you to serve actual time, or whether the sentence is wholly suspended, etc.

Possible Defences

The most obvious defence to this charge is to prove that your driving was not, in fact, dangerous as alleged by the prosecution. As already stated, this is entirely a matter for the magistrate or jury to decide and they must do so on an objective basis. The dangers of this defence are threefold. Firstly, the magistrate or jury may not agree with you and decide that your driving was objectively dangerous. Secondly, while the prosecution may allege that a certain portion of your driving was dangerous, the magistrate or jury may decide that a different part of your driving constitutes the dangerous operation of a vehicle (if there is enough supporting evidence). Thirdly, even if you demonstrate that your driving was not dangerous, you still risk being convicted of driving without due care and attention, pursuant to the traffic legislation.

Another possible defence will arise if you prove that the vehicle suffering from a sudden and previously unknown defect which deprived you of control of the vehicle. In this case, you will be seeking to demonstrate that the dangerous driving was caused by the mechanical defect, and thus, was beyond your conscious control. The key phrase to this defence is “sudden and previously unknown”. You will need to demonstrate that your vehicle was properly maintained and that the defect was not known to you in spite of your reasonable prudence. You will also need to demonstrate that the defect occurred before you had a chance to take action. For example, you will not be able to raise this defence if your car’s steering becomes damaged but you decide to try to drive the car home before you lose total control.

Relatedly, you may be able to raise a defence if you prove that you experienced a sudden medical condition which caused you to lose conscious control of your body. For example, if you suddenly fall asleep, you cannot be responsible for what happens after you fall asleep, as you are no longer in conscious control of the vehicle. Like the defence of sudden mechanical failure, you must demonstrate that your medical condition was previously unknown to you and came on before you had a chance to take action. For example, you will not be able to raise this defence if you drove knowing that you were severely fatigued.

Lastly, you may be able to raise the defences of “extraordinary emergency” or acting to save yourself. In short, you must demonstrate that you (or someone else) was in a life-threatening situation that could only be avoided by you operating your vehicle in a way that would otherwise constitute dangerous operation of a vehicle. You must also demonstrate that there was no other reasonable course of action available to you other than to operate your vehicle dangerously. Suffice to say that the circumstances in which these defences arise are exceptionally rare.

Conclusion

The broad, and objective, scope of this offence makes it impossible to outline all the circumstances in which you might find yourself charged with dangerous operation of a vehicle. Further complexity arises because of the various aggravating circumstances that, if present, put you at risk of significantly more harsher punishments.

Lastly, defences to this charge arise in very limited circumstances and must be proved with the proper evidence. Because of this complexity, it is important to get expert legal advice, should you find yourself charged with this offence.

Whenever you are charged with a traffic offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.

For the purpose of this article, we will use two examples. One is an unlicensed driving charge, the other is a dangerous operation of a motor vehicle charge (“dangerous driving”).

Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.

So let's first take the example of an unlicenced driving charge. Unlicenced driving carries different penalties depending on what exactly the unlicenced driving component relates to. For example, unlicensed driving charge at its worst can be a disqualified driving charge where a person has deliberately driven after the court disqualified their licence. In that case you are looking at a minimum of two years licence disqualification or it might be an unlicensed driving charge as a result of a licence becoming expired and you simply not realising it and that you drove on that expired licence and for that charge there is no mandatory licence disqualification.

Let's use the example of a demerit points suspension. That is where a person has driven whilst their licence has been suspended due to the accumulation of demerit points. This typically occurs where a person goes through their 12 (or 4 if a provisional licence holder) demerit points and then elects to lose their licence for three months or makes no election and is automatically assigned a three month licence suspension and then drives during that period. You will get a notice to appear in the Magistrates court on the unlicensed driving charge whilst the demerit points suspended. That charge carries with it a mandatory disqualification period of six months and there is no work licence or special hardship licence available for this charge. The ability to negotiate with the prosecution unit over the charge is a critical factor.

Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place. However, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.

In the case of the demerit point suspension, given that there is a mandatory six months disqualification, what typically happens is the lawyer would seek to try and reduce the unlicensed driving (whilst demerit point suspended) charge down to a lesser charge of unlicensed driving charge that does not carry mandatory disqualification periods. Now there are a number of factors that need to go into whether or not the prosecutor would accept that reduced charge and a person’s traffic history is one of the main factors. Other things to look at is the need for that person to drive and exactly why their licence came to be suspended. For example, if you elected to lose your licence for three months and drove, then the prosecutor is less likely to agree to reduce the charge than if you had gone through your demerit points, not realised this and you had received an automatic three months suspension from Queensland Transport because you did not elect a good driving behaviour period.

What would typically happen is if the charge is reduced or withdrawn then on the next court date or on the first date if the first court mention date has not occurred yet the police prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.

Lets take a look at another example, that is dangerous operation of a motor vehicle (“dangerous driving”). This is a serious charge. It is a criminal charge as opposed to a traffic offence and carries with it the real risk that you will lose your licence for at least six months and possibly much, much longer.

Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened, including the alleged driving and how that driving is alleged to be dangerous.

Negotiations or case conferencing with the prosecutor tends to look at trying to get that dangerous driving charge reduced to careless driving. A dangerous driving charge carries with it a minimum of six months disqualification if no one was seriously hurt or if there is no alcohol or drugs involved. A person found guilty of dangerous driving can also not apply for a work licence or special hardship licence. Careless driving on the other hand is a less serious charge, it is not a criminal offence it is a traffic offence and carries with it no mandatory disqualification. The court can still choose to disqualify a persons licence for a careless driving charge but handled correctly the court typically would not record a disqualification. Other areas of negotiation might be that the police won’t be able to prove that it was our client that was driving the vehicle or that there was some other legitimate reason for driving as they did. So you can see that negotiations and case conferencing in regards to dangerous driving is critical and if carried out successfully can save a person from losing licence for at least six months.

If you need any advice on a traffic related charge and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.drivinglaw.com.au

If you appear in a Queensland court charged with a traffic offence such as drink driving, drug driving or dangerous driving and plead guilty or are found guilty then the court will likely disqualify your drivers licence (many offences such as drink driving and drug driving carry mandatory minimum periods of disqualification). The purpose of this article is to give people some guidance as to what occurs after you leave the court if your licence has been disqualified.

Do I Get to keep my Physical Licence?

No, you are required to surrender your licence to Queensland Transport by the day after the court disqualifies you or to the police prosecutor at the court. It is an offence to be in possession of a licence if you have been disqualified by a court.

The surrender of your licence may in some circumstances deprive you of your main form of identification, you may therefore wish to attend Queensland Transport before the court and obtain a proof of age card to help with identification during your period of disqualification.

When does the Disqualification Begin?

The disqualification starts immediately. You would not be able to drive once you leave the court

What does this mean if you hold a licence granted outside of Queensland?

If disqualified, you are not authorised to drive on a road in Queensland under your non-Queensland driver licence during the disqualification period.  If your licence is from another state in Australia then your disqualification should prevent you from driving anywhere in Australia. You will need to check with your local transport authority.

What happens if you have any Industry or Driver Authorisations?

The disqualification period will also apply to any Industry or Driver Authorisation held by you (for   example a taxi, tow truck, bus, limousine, dangerous goods, driver trainer or pilot vehicle licence).   At the end of the disqualification period you will be required to visit or contact a Queensland Transport Centre or licence issuing agent to have your eligibility to hold an Industry or Driver authorisation reassessed.

What happens if you drive during your disqualification?

If you are found driving during your disqualification period, you will be charged with disqualified driving and you will be required to appear in court. If the charge is proven, the court will further disqualify you for a period of at least 2 years to a maximum of 5 years and may impose a substantial fine or sentence you to term of imprisonment for up to 18 months.  If you keep getting these offences you are going to need a good criminal lawyer.

How do I pay my fine?

Generally any fine can be referred to SPER. You can arrange with SPER to make payments on the fine or to pay it in one lump sum. For more information on SPER visit www.sper.qld.gov.au/. Alternatively you can pay the fine at the court but there may be a short delay as the information from the sentence is entered into the database.

Offender Levy

As from 21 August 2012 all people who plead guilty or are found guilty in the Magistrates Court must pay a levy (currently $125.80) in addition to any penalty imposed by the Magistrate.  The levy is separate from any monetary penalty we have advised the Magistrate may impose.  More details can be found at http://www.courts.qld.gov.au/about/offender-levy

What happens after my disqualification period?

After the period of disqualification has ended you will need to attend Queensland Transport and reapply for your licence. You cannot simply start driving after your disqualification period has ended. Please don’t drive to Queensland Transport as you are not entitled to drive until after you have been to Queensland Transport. Also remember to bring 100 points of ID.

After you have been disqualified you will be on a probationary licence for 1 year, this means that;

1. You have only 4 demerit points available
2. You have a zero alcohol limit for 1 years

You do not have to re-sit any tests to get your licence back (if you have held a licence in the past 5 years).

Please note that if you have more than one disqualification period imposed for example if you committed two offences that carried separate disqualification periods or you were already serving a disqualification then your disqualifications may run cumulatively meaning they run one after the other and not at the same time. You will need to check with Queensland Transport about this. If your licence disqualifications add up to more than 2 years you might be eligible to apply for a licence reinstatement after 2 years. More information on licence reinstatements is available on our website.

Interlock

Please note you may be required to have an interlock device fitted to your vehicle once you are eligible to obtain your driver’s licence back. This requirement applies to certain drink driving charges. The court has no discretion to allow you not to do this as it is a Queensland Transport licencing requirement. This is an area that is subject to constant change, for more information visit www.tmr.qld.gov.au/Licensing/Licence-suspensions-and-disqualifications/Alcohol-ignition-interlocks.aspx

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

We have been operating since 2010 and undertaken 1000’s of drink driving charges throughout South East Queensland.

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. email This email address is being protected from spambots. You need JavaScript enabled to view it.
4. Visit our main website or drink driving or work licence page

We cover all courts in South East Queensland from the Gold Coast to Brisbane and the Sunshine Coast and out to Toowoomba.  We have 6 offices in South East Queensland to assist people. We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drink driving. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, a drink driving charge no matter the reading will have an impact on you, your family and your employment or business.  

Need more information?

We have a range of articles on drink driving on our blog.  Some of the most recent have included:

• Top 5 Drink Driving Myths
• The Essential Guide to Obtaining a Work Licence
• Drink Driving on a Lime Scooter
• How Drink Driving Matters are Heard in Queensland
• What happens after your drivers licence is disqualified?
• Refusing a Breathalyser Test in Queensland
• Can you commit a drink driving offence in your driveway?
• Immediate suspension for drink driving
• Case Study - High Range Drink Driving and Disqualified Driving
• Three High Range Drink Driving Charges
• Special Hardship Orders v Work Licences
• High Range DUI
• Going through a drink driving charge in Brisbane Magistrate Court
• DUI Charges

This article general information only and not legal advice and is rewritten subject to our disclaimer that can be read by clicking here

Dangerous driving or more properly known as dangerous operation of a motor vehicle is one of the most serious traffic offences a person can be faced with in Queensland.  Often the charge results from a traffic accident where the driver at fault has driven in a dangerous manner.  Tragically often the tiniest mistake by a driver can lead to a person suffering death or grievous bodily harm and the driver who often has never broken the law before forced to navigate the court system.

The purpose of this article is to give some information to a person faced with a charge of dangerous driving causing death or grievous bodily harm.

Are there different levels of dangerous driving?

In Queensland there are three levels of dangerous driving

·         Dangerous driving

·         Dangerous driving causing bodily harm

·         Dangerous driving causing grievous bodily harm or death

Dangerous driving causing grievous bodily harm or death is obviously the most serious of the offences.  The offence is even more serious if at the time the driver was adversely affected by drugs or alcohol.

What is dangerous driving?

The expression "operates a vehicle dangerously" in general does not require any given state of mind on the part of the driver as that driver may believe he or she is driving carefully yet be guilty of operating a vehicle dangerously. "Dangerously" is given its ordinary meaning of something that presents a real risk of injury or damage.  The ordinary meaning of ‘dangerous’ is ‘fraught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.

What is grievous bodily harm

 “grievous bodily harm” is defined to mean

(a) the loss of a distinct part or organ of the body;

OR

(b) serious disfigurement;

OR

(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health

It is immaterial whether or not medical treatment is or could have been available to the injured person.

What type of accidents can result in a dangerous driving charge?

A charge for dangerous driving often results from split second errors in judgement.  We have in the past acted for people who have been charged with dangerous driving for;

1.       Failing to see a motorcycle before entering an intersection

2.       Being temporarily distracted causing the car to run off the road into the other lane of traffic

3.       Falling asleep at the wheel resulting in a collision with a power pole and serious injuries to the passenger in the car

4.       Turning too sharply on a dirt road causing the vehicle to roll and cause injury to a passenger in the vehicle

5.       Driving at excessive speed

In most cases if no person had been injured the driver may only have faced a careless driving charge.

What court will hear the charge?

Whilst all matters start in the Magistrates Court the charge of dangerous operation of a motor vehicle causing death or grievous bodily harm can only be finalised in the District Court.  For people in Brisbane this would mean the matter would start in the Brisbane Magistrates Court but would need to be transferred to the Brisbane District Court to finalise.  The Gold Coast has a District Court at Southport, the Sunshine Coast has a District Court at Maroochydore.  There is also a District Court at Beenleigh.

Who prosecutes the charges?

The Office of the Director of Public Prosecutions will prosecute the matter but will rely on the Queensland Police Service to investigate the matter and obtain the evidence.

Are there any defences?

Defences to a charge of dangerous driving might include:

1.       The driving was in fact not dangerous, for example the condition of the road or the vehicle caused the accident.

2.       Necessity, for example the driver had to drive as a result of an emergency

3.       The accused was wrongly identified as the driver

A lawyer would be required to properly advise as to what defences might be available.  If you plead not guilty to the charge of dangerous operation of a motor vehicle driving causing death or grievous bodily harm because you have a defence then the matter will go to a trial before a jury.

How long will the charge take to resolve?

It all depends on whether you are pleading guilty or not guilty.  Typically for a guilty plea in the Brisbane Court it might take 6-8 months from the arrest to when it is finalised in the Brisbane District Court. 

Will the charge result in a jail sentence?

It all depends on what happened, whether alcohol or drugs were involved and the extent of the injuries to the victim.  In most cases you can expect a prison sentence if you plead guilty or are found guilty after a trial for a charge of dangerous driving causing death or grievous bodily harm.

How long will the licence disqualification be for?

The disqualification period must be at least 6 months but depending on the circumstance of the charge and the traffic history perhaps much longer.  It is not possible to obtain a work licence or hardship licence to allow you to drive during the disqualification.

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 Dangerous Driving 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.

Whist careless driving (also known as driving with undue care and attention) and dangerous driving charges can result from similar circumstances this is not the case with the penalties with the potential penalty for dangerous driving being much more serious. Both charges can be accompanied with a drink or drug driving charge if the driver tests positive.

Careless driving is the less serious of the two charges as it is traffic charge, not a criminal charge, although it can still be punishable with a jail sentence. Depending on circumstances it is possible to obtain a result of no disqualification being put on your licence, although it does carry a mandatory loss of 3 demerit points if you plead guilty or are deemed to be guilty. Should you be on a good driving behaviour period and the 3 point loss will breach it you may be eligible for a special hardship licence – for more information see our website - http://drivinglaw.com.au/hardship-licences.html

Careless driving charges can come about from an incident as minor as skidding in the wet and your car hitting a gutter or a tree or having a collision due to being distracted by the radio or attending to an item they may have dropped.  Careless driving can also include accidents with pedestrians or other road users resulting in injuries to those people.  Drivers charged with this are believed to have been not paying enough attention to the road, not actually driving what is deemed to be 'dangerous'.  

Dangerous driving is the higher of the two charges and is in fact one of the few traffic related charge which is a criminal charge.

Dangerous driving charges occur when a driver was deemed to have driver a motor vehicle dangerously.  In deciding whether the driving was dangerous the court looks at the speed the vehicle was driven and whether the driving was dangerous to the public having regard to all the circumstances including:

(a)   the nature, condition and use of the place; and

(b)   the nature and condition of the vehicle; and

(c)    the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and

(d)   the concentration of alcohol in the drivers blood; and

(e)   the presence of any other substance in the drivers body.

It is always a good idea to seek legal advice if you are charged with either careless driving but especially so for a dangerous driving charge.

Depending on the circumstances of a dangerous driving charge, witnesses, damage etc it can be possible to case conference/ put submissions to the Police Prosecutions to have the charge lowered to careless driving if there are reasonable grounds. This is assessed by obtaining the police court brief.

For more information see our website  - www.drivinglaw.com.au/dangerous-driving.html

Here at Clarity Law we represent 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.  If you want to engage us or just need further information or advice then call 1300 952 255 7am – 7pm seven days a week

Disclaimer:

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.