Under Queensland law, any person who drives or is in charge of a motor vehicle while under the influence of liquor or a drug commits an offence. The offence is found in section 79 of the Transport Operations (Road Use Management) Act 1995 and carries a maximum penalty of nine months’ imprisonment. The offence also carries a minimum license disqualification period of six months.

This offence is more serious than the general offences of driving while relevant drug is present in blood or saliva or driving over the general or middle alcohol limit.

 

What do the prosecution have to prove?

For the charge to be made out, prosecution must prove the following ‘beyond a reasonable doubt’:

  1. That the accused was:
  • Driving a motor vehicle, tram, train or vessel; or
  • Attempting to put a motor vehicle, tram, train or vessel into motor; or
  • In charge of a motor vehicle, tram, train or vessel; and
  1. That the accused was under the influence of liquor or a drug.

 

What does ‘in charge of’ mean?

The law does not require a person to actually be driving a motor vehicle for the offence to be made out. It will be enough for prosecution to prove that a person was in charge of a motor vehicle.  The following are common examples of being ‘in charge of’ a motor vehicle:

  • If you didn’t drive but try to start the vehicle or move it;
  • You are sitting in the driver’s seat with the keys in the ignition or nearby;
  • You are asleep in the motor vehicle (either in the drivers seat or elsewhere) with the keys nearby.

It is common for individuals to mistakenly believe that they are exempt from being charged with this offence if they are on private property, in a driveway or car park. If prosecution can establish that a person was driving, attempting to drive or was in charge of a motor vehicle while under the influence, then they can be convicted of the offence regardless of whether the vehicle is located in a driveway, car park or on private property.

 

What does ‘under the influence mean’ mean?

If your blood alcohol concentration is above 0.15% the law deems that you are under the influence of liquor.

For a person to be charged with being under the influence of a drug, the prosecution must prove that your driving was impaired or affected because of the presence of a drug in your system. Generally, prosecution will seek rely on the indicia of a person including slurred speech, drowsiness or driving in an unsafe manner. However, observations by a police officer may not be enough on their own. Prosecution would usually require evidence of a blood sample showing the presence of a drug and, in some cases, expect evidence to interpret results and explain how a drug detected may have impacted a person’s ability to drive.

Relevantly, the drug does not need to be an illicit drug. It is not uncommon for persons affected by lawfully-used prescription medication to be charged with driving under the influence of drugs.

 

What are the usual penalties?

The usual penalty depends upon the circumstances of the offence and a person’s prior traffic history. The maximum penalty for this offence is a substantial fine or 9 months imprisonment. This maximum penalty increases in the following circumstances:

  • If, in the past 5 years, you have a prior conviction for this offence – the maximum is a substantial fine or 18 months imprisonment;
  • If, in the past 5 years, you have previously been convicted on indictment of any offence in connection with the driving of a motor vehicle or have been convicted of dangerous operation of a motor vehicle – the maximum is a substantial fine or 18 months imprisonment;
  • If, in the past 5 years, you have two prior convictions for this offence or an offence involving driving of a motor vehicle on indictment or dangerous operation of a motor vehicle – a court must impose, as the whole or part of the punishment, imprisonment.
  • If, in the past 5 years, you have 1 prior conviction for driving while relevant drug is present, or driving over general or alcohol limit – the maximum is a substantial fine or 12 months imprisonment;
  • If, in the past 5 years, you have 2 prior convictions for driving while relevant drug is present, or driving over general or alcohol limit – the maximum is a substantial fine or 18 months imprisonment.

 

How long will my licence be disqualified for?

If convicted of this charge, the minimum period that a court must disqualify your licence for is six months. This disqualification period increases in the following situations:

  • If, in the past 5 years, you have a prior conviction for driving under the influence – a minimum of twelve months disqualification;
  • If, in the past 5 years, you have more than one prior conviction for drink or drug driving – a minimum of two years disqualification;
  • If, in the past 5 years, you have been convicted of an offence involving driving of a motor vehicle that has proceeded on indictment or a conviction of dangerous operation of a motor vehicle – a minimum of twelve months disqualification;
  • If, in the past 5 years, you have been convicted more than once of an offence involving driving of a motor vehicle that has proceeded on indictment or a conviction of dangerous operation of a motor vehicle – a minimum of two years disqualification;
  • If, in the past 5 years, you have a prior conviction for drink or drug driving – a minimum of nine months disqualification;
  • If, in the past 5 years, you have more than one prior conviction for drink or drug driving – a minimum of twelve months disqualification.

If you are charged with driving under the influence, you should always consult with a legal practitioner prior to court. This is so you can prepare any relevant material (including evidence of employment) to tender to the court that may result in a better outcome for you.

 

Will I be subject to an interlock condition?

If you are convicted of driving under the influence of liquor, the law requires that after your period of disqualification end, you must have an interlock device fitted to your vehicle for a period of one year.

In certain cases, you can apply to the court for an exemption of this condition. An exemption can only be granted by the court in exceptional circumstances. It is strongly recommended that you seek legal advice if you wish to make an exemption application to the court.

We have a detailed guide about the interlock laws, procedure and exemptions.

 

What negotiations can be made?

In some cases of driving under the influence of drugs, it may be possible to persuade the prosecution to prefer an alternate charge of driving while relevant drug is present in blood or salvia.

If the offence involves liquor, it is much harder to negotiate the charge given that in most cases there is a blood alcohol concentration reading.

If charged with driving under the influence, you should immediately seek legal advice.

 

What Courts can the matters be heard in?

The offence must be heard summarily, in the Magistrates Court.

The following two tabs change content below.

Dylan Hans

Director and principal lawyer of Hans Legal, a criminal law firm in Ipswich, Queensland.