A. Overview (9-1)
B. Vehicle offences involving liquor or other drugs (9-2–9-4)
C. Unlicensed, disqualified and suspended driving (9-5–9-9)
D. Dangerous operation of vehicle (9-10)
E. Driving without due care and attention (9-11)
F. Restricted (provisional) licence (9-12–9-16)
G. Removing absolute disqualification under section 131 (9-17–9-19)
As a duty lawyer, you should not represent first and second offenders in relation to drink driving offences unless there is a risk of imprisonment. You can act in relation to any traffic matter where there is a risk of imprisonment and disqualified driving offences.
The sections of legislation discussed in this chapter relate to the Transport Operations (Road Use Management) Act 1995 (Qld).
Under s 79(1), there is a maximum penalty of 28 penalty units or 9 months’ imprisonment for driving under the influence of liquor or a drug.
However, if the defendant has had other convictions under s 79(1) in the previous five years, then:
Section 79(1F) orders a maximum penalty of 20 penalty units or 6 months’ imprisonment for driving over the middle alcohol limit (0.10) but under the high alcohol limit (0.15).
Section 79(2) orders a maximum penalty of 14 penalty units or 3 months’ imprisonment for driving over the general alcohol limit (0.05) but under the middle alcohol limit (0.10).
Section 79(2A), (2B) and (2D) all relate to particular types of licence or vehicle. This section orders a maximum penalty of 14 penalty units or 3 months’ imprisonment for driving over the no alcohol limit (0.00) but under the general alcohol limit (0.05).
However, if the defendant has had previous convictions under s 79 (1F), (2), (2AA), (2A), (2B) or (2D) in the previous five years, then:
Section 79(2AA) orders a maximum penalty of 14 penalty units or 3 months’ imprisonment for driving with a relevant drug present in saliva.
Section 79B provides for immediate suspension if a defendant has been charged under ss 79(1), 79(F) or 80(11), unless a court authorises them to drive under s 79E and they obtain a replacement licence under s 79(F).
Section 80(5A) orders a maximum penalty of 40 penalty units or 6 months’ imprisonment for failing to provide a breath specimen where police suspect an offence within the previous three hours.
Section 80 also orders a maximum penalty of 28 penalty units or 9 months’ imprisonment for failing to provide a specimen of breath, saliva or blood—the same penalty as a high reading under s 79(1).
The offences referred to above may be committed upon a road or elsewhere (s 79(11)). Schedule 4 of the Transport Operations (Road Use Management) Act defines a road and ‘elsewhere’ has been judicially defined to mean ‘any place other than a road’.
A motor vehicle is defined in Schedule 4 of the Act. Note that it may still be considered a ‘motor vehicle’ even if it is in a condition in which it is impossible to drive.
Causing a vehicle to move by the force of gravity down a road, and controlling the handlebars and brakes, is defined as ‘driving’. A vehicle under tow is not being driven (McNaughtan v Garland; ex parte McNaughtan [1979] Qd R 240 and Wallace v Major [1946] KB 473).
Pushing a vehicle with one hand on the steering wheel is not considered driving.
The following are acceptable defences under the Act:
The suspect was not driving the motor vehicle at the material time.
The defence under s 24 of the Criminal Code Act 1899 (Qld) (mistake of fact) is not available for offences under s 79 of the Transport Operations (Road Use Management) Act, as it is statutorily excluded under s 79(12).
If the person ceased driving before consuming alcohol, they have committed no offence.
Under s 80(11A), the person has not committed an offence of failing to supply if they can satisfy the court that:
Any person who drives a motor vehicle without a driver licence commits an offence (s 78(1)). The maximum penalty is 40 penalty units or 1 year’s imprisonment. As a first offence, this normally attracts a fine.
Under s 78, if a person drives a motor vehicle after being disqualified by a court order, they are committing a very serious offence with a maximum penalty of 60 penalty units or 18 months’ imprisonment. Generally, magistrates will consider jailing a disqualified driver caught driving in the first half of the disqualification period but imprisonment is not automatic. Additionally, a person convicted of driving while disqualified by a court order will be disqualified from holding or obtaining a driver licence for at least two years.
If a person is breathalysed and issued a certificate showing a reading of 0.05% or more, their driver licence is suspended for 24 hours from the time of the reading. The police officer concerned must give the person charged a notice under s 79D.
When the holder of an open or provisional licence, or learners permit, has accumulated more demerit points than are allowed under their licence, they are unable to drive. It is an offence to drive with accumulated demerit points.
Section 78(3) outlines when a court must disqualify a person from holding or obtaining a Queensland driver licence. These are:
The charge of dangerous operation comes under s 328A of the Criminal Code. There are three possible charges:
Under s 83 of the Transport Operations (Road Use Management) Act, it is an offence for any person to drive ‘a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place’.
No mandatory licence disqualification is set out in relation to this offence. However, the court does have the power to disqualify under s 187 of the Penalties and Sentences Act 1992 (Qld). You will need to put as much material as possible before the court about the defendant’s need for and use of their licence, and the consequences of disqualification.
Under s 87, a person convicted under s 79 may apply for a provisional licence (i.e. a restricted licence), which restricts them to driving a motor vehicle for the purpose of earning their living.
Under s 87(5), a person may not apply for a provisional licence if they:
The applicant must satisfy the court on the balance of probabilities that:
‘(i) the applicant is a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally; and
(ii) a refusal of the application would cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning the applicant’s livelihood’ (s 87(5)(a)).
The applicant should obtain and file a written application available at the magistrates court. Most courts request that an applicant file this application on the day that the matter is adjourned from the mention court to a date for the hearing. However, they can file it, by leave, on the day of the hearing.
The applicant must be prepared to personally give evidence and be cross-examined by the police prosecutor.
The applicant will require evidence from their employer about both the terms and conditions of employment and the effect of the loss of licence on that employment.
Affidavits and references concerning the applicant’s character are useful but may be admitted only by consent.
Any person who has been disqualified from holding or obtaining a driver licence, either absolutely or for at least two years, under the Transport Operations (Road Use Management) Act or any other Act may apply to have their disqualification removed.
An applicant may apply for the removal of their disqualification order at any time from two years after the date of the previous disqualification order.
An applicant may file the application in the magistrates court in Queensland where they live if the disqualification order was made by a magistrate or justice. The application should refer to all disqualifications, in excess of two years, that the applicant wishes to have removed.
If the disqualification order was made in the Supreme Court or a district court, the applicant should file the application in the court that made the order.