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South East Queensland's most experienced traffic law firm

Displaying items by tag: DUI Charges

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

Published in Legal Blog
Tagged under
Sunday, 31 March 2019 13:45

Refusing a Breathalyser Test in Queensland

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

Published in Legal Blog

A QP9 (Queensland Police Form 9 or police court brief) is a document prepared by the Police Prosecutions unit when someone is charged with an offence. The QP9 lists the exact charge with a brief description of the facts which the Police are alleging against you as well as attaching any criminal or traffic history. Depending on what Court your matter is to be heard in, and how busy the Police are, the document will be provided prior to your Court date or at Court.

It is essential to carefully go over the QP9 prior to entering a plea before the Court, as you are not only pleading guilty to the charge but also to all the facts and circumstances surrounding the charge that the Police allege in the QP9, this may include the way you acted towards the Police, things that you said or admitted or information recorded by the Police that you may believe is incorrect or inaccurate. This should be remembered when being charged as harsher penalties or less leniency can apply if the document states that you were rude, unruly, unhelpful etc. Also being aggressive when being charged can easily result in a further charge of resisting arrest or obstructing or assaulting police.

Obtaining the QP9 or having a Lawyer obtain the document for you and having a thorough look over the QP9 before you enter your plea is essential so that if there is any discrepancies they are looked into.

In Court the Police will read out the charge and a brief rundown of their version of events from the QP9. It is then that your Lawyer, or yourself if you are self-represented, can have your say to the Magistrate. If there are significant factors from the QP9 in which you disagree with it may be possible to draft submissions and put them forward to the Police Prosecutions asking them to reconsider the charge or amend what is written in the QP9. A Lawyer can advise you as to the possibility of making submissions and if what the likely chances of the Prosecutor accepting them would be.

Some examples of our success in getting the Police Prosecutions to lower or dismiss charges are:

  • 1.       Our client was charged with dangerous driving whist effected by alcohol and drink driving. A person cannot be charged with both offences, only one or the other. We addressed this with the Police Prosecutions and the result was the charge of drink driving was withdrawn.

 

  • 2.       Our client was charged with unlicenced driving. At the time that the letter had come from Queensland Transport telling our client his licence was suspended our client had been suffering an extremely traumatic string of events. On these grounds we were able to convince the Police to withdraw the unlicenced driving charge.

 

  • 3.       Our client was charged with driving under the influence of drugs, being the higher of the two drug driving charges. Upon receiving the drug analysis certificate and after going over the QP9 document we were able to have the Police agree to downgrade the charge to driving with a relevant drug in the client’s system.

 

In more serious matters it is possible to request a full brief of evidence. This document is like a QP9 but much more detailed and will include any witness statements, CCTV or audio footage. Where applicable it is also possible to request any Police body camera or police vehicle camera footage that may be available.

Needless to say engaging a Lawyer to represent you ensures that all avenues are explored to ensure all aspects are covered and you ultimately receive the absolute best outcome possible.

Here at Clarity Law we appear in the Courts with clients all over South East Queensland. It is this experience 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 Magistrates like we do.  We also offer the most competitive prices for representation in Queensland click here to see what we will charge.  If you want to engage us or just need further information or advice then Call us on 1300 952 255 seven days a week, 7am to 7pm.

 

 

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.

Published in Legal Blog
Wednesday, 06 July 2016 16:41

DUI Charges

When most people hear DUI they usually associate it with a drink driving charge. Whilst this is correct, as DUI stands for ‘driving under the influence’ it can in fact relate to either a drink or drug driving offence.

 

There are three levels of drink driving charges, being

 

Driving with a low BAC (blood alcohol concentrate) reading of between .05 and .099. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

 

Driving with a mid BAC (blood alcohol concentrate) reading of between .1 and .149. This charge carries a mandatory minimum of a 3 month suspension of your licence.

 

Driving under the influence (“DUI”) of alcohol charge is a result of a reading of .15 or above. This charge carries a mandatory minimum of a 6 month suspension of your licence.

 

A DUI drug charge means that you were charged with ‘driving under the influence of drugs’. Drug tests search for traces of THC (active ingredient in marijuana), MDMA (speed or ecstasy) and methamphetamine.

There are two levels of drug driving charges, being:

 

Driving with a relevant drug present in your system

This charge is issued when a drug test indicates there is drugs present in the driver’s system but they appear to be unaffected by the drugs or substance. If you are charged with this your driver’s licence will be suspended for a period of 24 hours. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

 

Driving under the influence of drugs (“DUI”)

This charge is issued when a drug test indicates there is drugs present in the driver’s system and/or the driver appears to be affected and impaired by drugs. This will be ascertained by the driver’s appearance (eyes, facials expressions etc), behaviour and mannerisms. If you are charged with this your driver’s licence will be suspended immediately. This charge carries a mandatory minimum of a 6 month suspension of your licence. Whilst if you are sentenced to in excess of this period the Magistrate can take into consideration the length of time you have already had your licence suspended, if you receive the minimum of 6 months, this period will be served in full from your Court date.

 

Driving under the influence of drugs can be a result of illegal drugs, synthetic drugs (designed to mimic the effects of illegal drugs) prescription drugs (Xanax, Valium) and even some over the counter medical prescriptions.  Anytime that you are effected by a substance which alters your abilities in any way you could be charged with driving under the influence of drugs.

A roadside drug test is simply an oral swab which is tested immediately and will indicate if there is traces of drugs in your system. If the test indicates the presence of drugs you will need to undergo another drug test which is sent to a Government laboratory for testing.  You will receive a drug analysis certificate when it is available from laboratory testing. If your roadside drug test indicates no drugs in your system, the Police are still able to order you to undergo a blood test if they believe you are under the influence of a drug or substance.

We have been successful in the past in having some drug DUI charges downgraded to driving with a relevant drug in the drivers system by in putting forward to the Police Prosecutions submissions giving reasoning and information as to why the client should not have been charged with a drug DUI and have only received a driving with the relevant drug in their system charge.

Whilst with alcohol there are rough guidelines to how long the alcohol will take to be processed and out of your system there is no such recommendation for how long drugs may stay in a person’s system for. Many people find themselves being charged with driving with drugs in their system long after they have consumed or ingested drugs. Because each person responds to the consumption of drugs in a different manner based on their personal chemistry, past use, type of drug taken, amount of drug consumed, height, weight and other factors, unlike alcohol consumption there is no way in when to tell when the drugs have left your system.

It is important to note that you do not have to be driving your vehicle to be charged with a drink or drug driving offence, you could be charged if you are merely sitting in the driver’s seat.

Charges of low or mid BAC or a driving with a relevant drug in your system, depending on your circumstances and previous traffic history, can allow you to apply for a work licence to be issued to you for the duration of your suspension period. An alcohol or drug DUI charge however eliminates this option.

Here at Clarity Law we represent people charged with drink and drug driving offences in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients.  Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do.  We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

 

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

 

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  We are also not health professionals and our observations on drink driving and what effects a person’s BAC reading is based on our knowledge of representing thousands of drink driving client’s overs the past 15 years and not any specific medical training.

Published in Legal Blog