Clarity Law - drivinglaw.com.au

South East Queensland's most experienced traffic law firm

Russell Tannock

Russell Tannock

 

You have been given a Notice to Appear at court for a traffic offence. You must show up to court on the date specified in the Notice to Appear. The question is, what happens on the first court date? In this post, we will outline the options you have for dealing with your matter. In short, you have three options: seek an adjournment, plead not guilty, or plead guilty. We will discuss each of these options in turn.

 

Option #1 – Ask for an Adjournment

You are not obliged to enter a plea (of either guilty or not guilty) on the first court date if you are not sure about the implications of entering a plea. You are entitled to ask the court to adjourn your matter to a later date. If you ask for an adjournment, the charge remains before the court. You will need to return to court on the later date.

There two main reasons why you may wish to adjourn your matter.

The first is to get legal advice. It is always a good idea to discuss your matter with a lawyer, so you understand the possible consequences of your intended course of action. Police Prosecutors and Magistrates cannot give you legal advice. Please also be aware that, while most courts have a duty-lawyer service available, these services (generally) do not provide advice about traffic matters.

If you tell the Magistrate that you wish to get legal advice, the Magistrate will usually adjourn your matter for about 2 weeks and will (usually) grant you bail. You will be expected to have contacted a lawyer and have received advice by the time you return to court.

The second reason to ask for an adjournment is because you want to apply for a work licence. Work licences are only available in specific circumstances, so you should ascertain whether you are eligible for a work licence before informing the court that you wish to make an application.

Applications for work licences have strict requirements (such as preparing, filing, and serving affidavits, etc) that must be adhered to before the court can consider your application. If you tell the court that you want to apply for a work licence, the court will generally adjourn your matter for about 2 weeks so you can comply with these requirements.

Please also note that some courts have specific times on specific days to hear work licence applications. These days and times can change from year to year. It is a good idea to check the court’s calendar to find out to when you can expect your matter to be adjourned.

 

Option #2 – Plead Guilty

If you have already decided to plead guilty, you have the option to enter your plea on the first court date. For the majority of traffic offences, the court will finalise your matter as soon as you enter your plea.

That means that, on the first date, you will be convicted, and penalties will be imposed on you (for example, a fine and drivers licence disqualification). These penalties take effect the moment that they are imposed. For example, once the court disqualifies you from driving, you are disqualified from that moment. If the court orders you be released on probation (if your traffic offence is sufficiently serious), you are subject to the conditions of your probation from that moment.

Therefore, it is important that you are prepared for the consequences of any penalties that the court might impose. For example, do not drive to court if you intend to plead guilty to an offence that carries licence disqualification as a mandatory penalty, because you will not be permitted to drive home. You will need to make other arrangements to get home from court that day.

Please also be aware that, once you have entered a plea of guilty, it is exceedingly difficult to have this plea revoked if you change your mind. It is also exceedingly difficult to persuade the court to delay imposing penalties (that is, adjourning your matter) if you suddenly realise that the penalties might be harsher than you anticipated. You should only plead guilty if you are fully prepared for the consequences.

On the other hand, there are some benefits to pleading guilty on the first court date. For example, if you are charged with certain traffic offences (such as a mid-range or high-range drink-driving charge), your licence is suspended from the moment that you are charged until your matter is finalised by the court. Any subsequent court-ordered disqualification takes effect from the date that you are convicted. The court cannot back-date its disqualification to the date of the charge. Therefore, the time that your licence is suspended (including during the time of any adjournments) is served in addition to the disqualification imposed on you as a penalty.

 

Option #3 – Plead Not Guilty

If you decide to fight the charge, you may plead not guilty on the first court date. By pleading not guilty, you are putting the onus on the court to decide whether you have committed the offence that the police allege you committed, or not. The only way that the court can make this decision is by means of a trial. In the Magistrates Court, a trial is referred to as a “summary hearing”.

A summary hearing involves calling evidence, listening to witnesses, cross examination, submissions from prosecution and defence, etc. This is an involved process that takes a lot of time. The court cannot go through this process on the first court date, as your matter will be listed along with lots of other peoples’ matters.

Instead, if you enter a plea of not guilty on the first date, the court will pick a date (in at least 2 months’ time, depending on how busy the court is) to hold the summary hearing and adjourn your matter. You will (usually) be granted bail and ordered to return to court to attend the hearing.

There are serious consequences for pleading not guilty and proceeding to trial, especially if you are found guilty by the court. You should only plead not guilty if you understand the case against you and you have received legal advice about your prospects of successfully defending yourself.

 

Conclusion

In spite of what anyone tells you, you are not obliged to finalise your traffic matter on the first court date. The purpose of the first date is so that you can inform the court how you wish to proceed with your matter, and to allow the court to make orders accordingly.

To repeat, you have three options: to adjourn your matter, to plead guilty, or to plead not guilty. There are advantages and risks associated with all of these options, so it is important that you obtain legal advice as soon as possible so that you can make a fully-informed decision before you go to court.

 

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 and other traffic 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 page

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 your traffic charge. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, a traffic charge no matter how serious may 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:

This article is for general information only and is not a substitute for legal advice. Please visit our disclaimer page at www.drivinglaw.com.au/disclaimer.html 

Monday, 10 August 2020 09:42

Top 5 Drink Driving Myths

In this post, we discuss five of the most common drink-driving myths in Queensland and explain why they are exactly that – myths. As a law firm that focus soleoy on traffic law, we frequently represent people who believed that these myths would keep them safe from drink-driving charges. Sadly, part of our job is to explain why this is not the case.

We write this in the hope that you will not be the next person caught by these fables.

Myth #1 – You Cannot be Charged with Drink-Driving in Your Driveway

There are lots of reasons why this myth is wrong. Some of these reasons are discussed below but apply equally to this myth. However, most importantly, the legislation does not restrict where an alcohol- or drug-related offence can occur. In other words, you can commit these offences anywhere. You only need to be:

  • Driving a motor vehicle;
  • Attempting to put it in motion; or
  • In charge of it.

And with prohibited amounts of alcohol in your system, or an illegal drug in your system.

We have encountered cases where people have been charged with drink- or drug-driving offences where their car was:

  • Parked in a driveway;
  • Parked in a garage with the door shut;
  • Parked in a shopping centre or pub carpark;
  • Parked on the side of the road; and
  • Being driven on a dirt track on private property.

In short, there is no where you can legally drink and drive. If you are found driving or in charge of a car anywhere in Queensland, you can (and probably will) be charged with an offence.

What makes this myth persist is that other States in Australia have restrictions on police administering breath tests on people who are in their home. In New South Wales, this is known as the “home safe” rule. You must be careful when doing Google searches of drink-driving offences that the information you find relates only to Queensland, and not other jurisdictions. Google Lawyer should be approached with the same caution as Google Doctor.

It is important to keep in mind that drink-driving laws in Australia are not uniform across the various States and territories. It is crucial that you are getting information relating only to Queensland law, if you are planning to drive in Queensland.

Myth #2 – One Standard Drink per Hour will Keep You under 0.05 BAC

A long time ago, this myth was extensively advertised on television, on the radio, printed on posters, and printed on drinks coasters. Unfortunately, this advertising campaign was so successful that many, many people still think that this is a reliable rule of thumb to gauge whether it is safe to drive after drinking alcohol. Even more unfortunately, there are a number of mobile phone apps that you can download which record and count your drinks for you.

This myth is particularly seductive because it seems to have some basis in science. Blood-alcohol concentrations are the measure of the amount of alcohol that has been absorbed by your body, minus the alcohol that your body has metabolised, thus removing it from your system. The basis of this myth is that, if you keep the amount of alcohol you are putting in your system equal to (or less than) the amount of alcohol that your body processes, your blood-alcohol concentration should remain equal. While it is true that human bodies metabolise alcohol at a reasonably ascertainable rate, there are too many variables that are not taken into account by crude “drink counting” alone.

For example, the rate at which alcohol is absorbed into the bloodstream is affected by how much you have eaten prior to, and at the time of, drinking. It is also affected by the types of food you have eaten. Fatty foods, or carbohydrates will slow the rate of absorption compared to non-fatty foods. This is important because you merely delay when your blood-alcohol peaks. This is dangerous because your blood-alcohol could peak when you are driving; especially if you wait a considerable time after your last drink before driving.

Also, your metabolism is affected by many other variables, such as your age and your genetics. Smaller people are affected by alcohol more than their larger counterparts. Women process alcohol slower than men (for various, biological reasons). People with certain medical conditions (especially liver diseases) will metabolise alcohol slower than a healthy person. Lastly, experienced drinkers are less susceptible to the affects of alcohol than naïve drinkers, making them more at risk of judging themselves “safe” to drive.

Lastly, drinks are counted by reference to a “standard” drink. In Australia, a standard drink is one that contains 10 grams of alcohol. Many people try counting drinks where they are drinking at home, or at a friend’s home, where drinks are estimated, rather than measured. Also, heavy beers and premix spirits served in single-serve bottles or cans are almost always more than one standard drink.

None of these factors are accounted for by the drink-counting technique.

In short, counting your drinks is now considered a totally unreliable way to keep yourself under the legal alcohol limit for driving. You are unlikely to see this technique being advertised anymore. The only safe way to drive is to avoid alcohol completely if you know that you are going to drive. In other words, “if you’re going to drive, don’t drink. If you’re going to drink, don’t drive”.

Myth #3 – You can “Sleep it Off” in Your Car

As we have already discussed above, drink-driving offences are not limited to public roads. You can commit them anywhere that you can get a car. Furthermore, as we discussed, you do not need to be driving a car to commit an alcohol-related offence. You can also be charged with “attempting to put in motion” or “in charge” of a car while over the legal alcohol limit.

If the police find you sleeping in your car while over the legal alcohol limit, you will probably be charged with being “in charge” of the car while over the relevant limit. Being “in charge” of a motor vehicle has no precise definition in the legislation; however, there is case law which does provide such a definition.

In simple terms, being “in charge” has the underlying idea of being “responsible”. In Queensland, it seems that the courts consider someone must be responsible for cars parked on public roads. Therefore, you are in charge of your car until you give responsibility of your car to someone else. This notion is applied fairly broadly; for example, you can still be “in charge” of your car, even if it has been in an accident. Nevertheless, the legislation does provide for certain, very limited, circumstances where you will not be convicted of an offence even though you were found to be “in charge” of your car and were over the legal limit.

In short, if you plan to drink, you are best making other arrangements to get home and avoid going near your car altogether. An even better plan is to leave your car at home entirely if you plan to go drinking. How many times do “a few quite ones” turn into “a big night out”? These are the times when it is tempting to sleep it off in the car and drive home in the morning.

Myth #4 – You are Safe to Drive the Next Day

Speaking of driving the next morning, a common trap many of our clients fall into is driving the morning following a night of drinking, believing that they no longer have alcohol in their system. Regrettably, and depending on how much alcohol you drank the night before, this may not be the case.

As previously discussed, blood-alcohol concentration is the difference between the amount of alcohol you put in your system and how much alcohol your body processed out. If you drink alcohol at a faster rate than your body can process, your blood-alcohol will increase. Once you stop drinking, your blood-alcohol concentration will fall at a consistent rate. There is no other way to reduce your blood-alcohol concentration. Cold showers, drinking black coffee, drinking water, eating fatty foods, taking Berocca, sleeping, or throwing up, will not reduce your blood-alcohol concentration.

It follows then that, if you have a lot to drink, your body may not have processed all the alcohol out of your system by the time you wake up in the morning. What makes this particularly dangerous is that the effects of alcohol can be mistaken as a hangover.

It should be said that being mistaken about whether you are over the legal limit for driving is not a defence to a drink-driving charge.

Myth #5 – You Know a Trick to Mask Your BAC / Cheat a Breath-Test / Avoid the Police

No. You don’t.

Conclusion

In summary, there is a lot of misinformation about alcohol-related traffic offences. It is important that you have correct information so that you can make safe decisions about alcohol and driving. Getting it wrong can have serious consequences for you, your licence, your loved ones, and everyone around you.

 

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 page

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:

This article is rewritten subject to our disclaimer that can be read by clicking here

Sunday, 24 November 2019 10:57

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 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 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:

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

 

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 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:

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

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).

 

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 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:

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