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Sunday, 14 November 2021 16:10

Essential Guide to 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.

Published in Legal Blog