It’s just a drink driving offence, I can’t go to jail. Can I?

Close up of beer glass with frothMost motorists pleading guilty to their first drink driving charge will receive a fine and a loss of their licence.  It is however open for the Magistrate to impose an actual period of imprisonment, especially where it is a repeat drink driving charge.

For some drink driving offences, the law says that the court must impose, as the whole or part of the punishment, imprisonment.

Sentence

When you enter a plea of guilty to a traffic matter the Magistrate must decide, not only the length of your disqualification, but also whether you will be fined, given a community based order or sentenced to a period of imprisonment.

The Court will look at various factors including:

  1. your reading at the time of the offence;
  2. the circumstances surrounding the offence; and
  3. your criminal and traffic history.

First time drink driving penalties

For a first time drink driver the maximum penalties are:

BACLicence DisqualificationMaximum fineMaximum Imprisonment
0.0%3 to 9 months$1,7063 Months
0.05 and over, under 0.101 to 9 months$1,7063 Months
0.10 and over, under 0.153 to 12 months$2,4386 Months
0.15 and over, Minimum of 6 months$3,4139 Months

Read more about BAC limits in our previous blog post.

Repeat Drink Driving Charge

Imprisonment becomes an option where the court is sentencing you for a repeat drink driving charge.  Repeat drink drivers face higher penalties than first time drink drivers.  In addition to the power to impose a period of imprisonment the court can also:

  1. Have your car impounded (if you refuse to provide a specimen of breath or blow over 0.15%;  Read more about impoundment powers here.
  2. Disqualify your licence for up to two years;

What is a Repeat Drink Driver?

A repeat drink driver is a person who has been sentenced for an offence outlined above within the last 5 years.  The Court will look at the totality of your traffic history in deciding which penalty to apply, however the legislation defines a repeat drink driver as a person convicted within the last five years.

What should I do if I am a repeat drink driver?

If you are intending to enter a plea of guilty to a repeat drink driving offence you should consider your reading, the circumstances of the offence and your traffic history.  If you are concerned that you might be facing a period of imprisonment you should contact a traffic lawyer for advice.

A program such as the Queensland Traffic Offenders Program will assist you to demonstrate rehabilitation.

More Drink Driving Articles

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

ANPR camera systems set to detect Unregistered Vehicles

ANPR4The Queensland Government is set to allow automatic number plate recognition camera systems or ANPR camera systems to detect unregistered drivers, through proposed amendments to the Transport Operations (Road Use Management) Act 1995.

Approximately 3% of Queensland’s 4.5 million vehicles could potentially be unregistered (up to 135 000 vehicles).  This looks set to increase when the Government scraps Registration Labels for light vehicles from October 1, 2014. 

Unregistered Vehicle

Generally, when a vehicle is unregistered, that also means it does not have CTP insurance (“uninsured vehicle”). However, CTP insurance continues for a grace period of 30 days after the expiry of a vehicle’s registration. It is possible for a vehicle to be unregistered, but retain CTP insurance during this time.

Enforcement Responsibility.

Police officers and transport inspectors employed by the Department of Transport and Main Roads have been intercepting vehicles and manually issuing infringement notices for unregistered and uninsured vehicle offences for many years. In more recent times, portable automatic number plate recognition camera systems have been used to detect these offences. Once an unregistered vehicle is detected, a police officer or transport inspector must still physically intercept the vehicle and manually issue an infringement notice.

It is proposed that both the Department of Transport and the Queensland Police Service (QPS) will utilise fixed and mobile ANPR Camera Systems to detect unregistered vehicles and automatically issue infringement notices by ordinary mail.

Evidentiary Certificate.

Section 120 of the Transport Operations (Road Use Management) Act 1995 will be amended to allow the chief executive to sign an evidentiary certificate for photographic detection devices operated by the Department of Transport and Main Roads, stating that an image was properly taken by the device and allowing the image to be used as evidence of an offence.

Who is responsible for the offence?

Under current arrangements it is the driver of the vehicles responsibility to confirm that the vehicle is registered and has compulsory third party insurance before it is used on the road.  Following the proposed amendments to the Transport Operations (Road Use Management) Act 1995 the most recent registered operator will be responsible for the offence.  Regardless of who is driving the vehicle, it is the registered operator’s responsibility to ensure that the vehicle is registered.

The registered operator will have a defence where they provide a statutory declaration stating that the vehicle was stolen, illegally taken or had already been sold or disposed of (see amendments to section 114);

How will the notice be served?

An infringement notice issued by an information technology system is taken to be an infringement notice served by an authorised person under the State Penalties Enforcement Act 1999, and in particular section 13(1) of that Act (see new section 113A(3)).

The effect of this amendment is that the notice will be sent, by post to, to the nominated address and will be deemed to have been served.  It will become imperative that all vehicles are promptly transferred with the Department of Transport following sale otherwise a former owner, not receiving the notice could find their licence cancelled.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

New Traffic Laws and Increased Penalties for Cycle Offences.

New Traffic Laws Introduce Cycling Reforms.

Ciclisti al tourQueensland has new traffic laws following the introductions of the Transport Legislation and Another Regulation Amendment Regulation (No. 1) 2014.  These new traffic laws are primarily aimed at addressing the road safety of cyclists by introducing a new minimum distance of up to 1.5 metres between any vehicle and a cyclist.  The offence is set to carry a maximum penalty of 40 penalty units and the loss of three (3) demerit points.

The new traffic laws follow the Parliamentary Transport, Housing and Local Government Committee  report “A new direction for cycling in Queensland”.  The report, released in November 2013, outlined recommendations designed to improve the interactions between cyclists and other road users.

Safety Reforms.

To increase safety for cyclists, the report  recommended that a minimum overtaking distance should be introduced.  The Committee noted a number of studies in Australia and in other jurisdictions have identified passing too closely (or side-swiping) as a frequent and significant factor in incidents resulting in death or serious injury to cyclists. This amendment regulation introduces a minimum passing distance for motorists passing a cyclist.

This regulation amends the Queensland Road Rules to provide that:

Motorists must leave a minimum distance of 1 metre between their vehicle and any cyclist they are overtaking on a road where the speed limit is 60 km/h or below and at least 1.5 metres where the speed limit is more than 60 km/h.

To facilitate these minimum passing distances, the amendments provide that a driver may straddle lane lines, drive to the right of the centre of the road (including crossing dividing lines) or drive on a painted island or dividing strip that is the same level as the road provided the driver has a clear view of any approaching traffic and it is safe to do so.

A breach of the new minimum passing distance requirement will carry a maximum court penalty of 40 penalty units.

If police issue an infringement notice roadside the Infringement Notice is a fine of three penalty units and three (3) demerit points.  This is a consistent penalty to offences of a similar risk including, for example, disobeying a red traffic light, failing to wear a motorbike helmet and entering a level crossing when a train is approaching.

Infringement Penalties

In its report, the Committee noted that “the current imbalance between cyclists and other vehicle drivers in relation to infringement penalties warrants review”. It commented that there is significant potential for cyclists to endanger other vulnerable road users and do harm to themselves. It recommended that the penalties for road rules offences for cyclists should be increased to the level that applies to motorists where the potential to endanger other road users is greatest (Recommendation 31).

This amendment regulation implements and, for simplicity, extends that recommendation by providing that:

  1. where cyclists currently receive a lower infringement notice fine than motorists for any road rules offence, the fine for cyclists will be increased to the level that applies to motorists; and
  2. where the offence can only be committed by a cyclist and the current infringement notice fine is less than one penalty unit, the fine will be increased to one penalty unit.

Loss of licence.

If you have lost your licence through an accumulation of demerit points and will suffer special hardship as a consequence of these new traffic laws, you may be eligible for a Special Hardship Order.  To find out more about a special hardship order, read on further in the traffic law section of our website, or contact our experienced traffic lawyers for advice.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

QUEENSLAND IMPOUNDMENT PROCESS

An experienced Gold Coast Criminal Lawyer will ensure your best outcome.

An experienced Gold Coast Criminal Lawyer will ensure your best outcome.

Hooning Laws

Hooning and other reckless driving offences can result in the impoundment or immobilisation of a motor vehicle for a period of  seven to 90 days under Queensland Hooning Laws.  For repeat offending the vehicle can be forfeit to the state.  While there is capacity to appeal these decisions,  the intention of the legislation is clear.  Go too far and lose your car.

The offending is broken into two categories: Type 1 and Type 2.

Type 1 Hooning Laws

  1. Evading police
  2. Any of the following offences committed during a speed trial, race or a burn out
    1. Dangerous Operation of a Motor Vehicle;
    2. Careless Driving;
    3. Organising, promoting or taking part in reacting or speed trials;
    4. Wilfully starting or driving a motor vehicle in a way that makes unnecessary noise or smoke.

Type 2 Hooning Laws

  1. Driving a vehicle while out is uninsured and unregistered
  2. Unlicensed driving;
  3. High range drink driving 0.015% and over;
  4. Exceeding the speed limit by more than 40 km/h;
  5. Driving an illegally modified vehicle;
  6. Failure to supply a specimen of breath or blood; or
  7. Driving while under a 24 hour suspension.

hooningCan I apply for the early release of my vehicle?

The owner or usual driver of the impounded vehicle can apply in writing to the Commissioner of Police for early release of the their vehicle if they can establish:

  1. Severe personal or financial hardship.
  2. The offence was committed without the owners consent.
  3. The unlicensed or uninsured offence has been rectified.
  4. The grounds for impoundment were unreasonable.

If you require assistance drafting an Application to the Commissioner of Police or wish to appeal the Commissioner’s decision then you should contact Gatenby Criminal Lawyers for advice and expert assistance.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

40 Cars a Day Being Seized Under QLD’s Hooning Laws

hooning40 Cars a day seized under Hoon Laws

Since 1 November 2013, police have proffered more than 7,800 charges under Queensland hoon laws for traffic offences including dangerous operation of a motor vehicle, street racing, evading police and speeding at more than 40km/h over the legal speed limit.

New Hoon Laws

Under the new laws anyone caught doing burnouts, donuts, drifting or other hooning behaviour can have their vehicles taken off the road for three months.

Any follow-up offending within five years will result in the offender’s car being forfeited and sold or crushed.

Charges

Between November 1 and December 15 police alleged:

  1. 3100 charges for driving while unlicensed;
  2. 210 charges for speeding at 40km/h or more over the legal speed limit;
  3. 334 charges were handed out for evading police;
  4. 42 charges for dangerous operation of a vehicle;
  5. 43 charges of driving without due care and attention
  6. 4 charges of street racing; and
  7. 130 charges for doing burnouts.

Police have so far taken at least 634 vehicles off the road for the full three months while a further 189 are set to be either sold or crushed.

A further 940 drivers had their cars seized or their numberplates confiscated for a week after being charged with hooning offences.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Proposed Increased Penalties For Mobile Phone Offences

Police have a zero tolerance attitude to the use of Mobile Phones while driving.

Police have a zero tolerance attitude to the use of Mobile Phones while driving.

Qld Mobile phone laws

The State Government is considering new laws for mobile phone offences while driving. Motorists currently face fines of $330 and the loss of three demerit points if caught using a mobile phone while driving.

Motorists need to be aware that even if stationary at traffic lights the law still deems you to be in charge of the vehicle and you can be liable.  You are considered to be using the phone even if you are using a function other than making a call.  Texting, checking Facebook or surfing the web would all be offences.

Qld Road Safety Action Plan

Options discussed as a part of the Queens­land Road Safety Action Plan 2013-15 include:

  • Increasing the penalty from $330.00 to $430.00; and
  • Increasing the loss of demerit points from three to four points; and
  • Imposing a loss of six demerit point for motorists caught twice within a year.

Statistics show that there were more than 110,000 mobile phone fines issued between 2010 and September 2103.

  • 2010   33,000
  • 2011   30,000
  • 2012   28,700
  • 2013   19,000 to September.

As traffic lawyers regularly appearing in relation to traffic matters our advice is to ensure that you have installed a blue tooth device, or preferably place your mobile phone in the boot or glove box prior to starting your car.  The consequences of a distracted driver can be catastrophic.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

NEW PENALTIES FOR HOONING.

hooningNew Penalties for driving offences

New anti-hooning and road safety legislation came into effect today.  The penalties for offending are far more significant that those previously imposed.  Offences are broken into two categories, Type 1 and Type 2. The penalties are dependant on the type of offence and a Defendants Traffic and Criminal History.  The new legislation can be categorised as follows:

Type 1 offences:

  • 90 day vehicle impoundment for first offence such as:
    1. dangerous operation;
    2. careless driving such as burn-outs or drifting;
    3. racing,
    4. speed trials; and
    5. evade police.
  • Towing and storage of impounded vehicle is at the driver’s expense.
  • Vehicle liable for forfeiture for second offence.

Type 2 offences:

  • Infringement notice, notice to appear or arrested for first offence such as:
    1. unlicensed driving,
    2. high range drink driving,
    3. exceeding speed limit by more than 40km/hr,
    4. driving a vehicle that is both uninsured and unregistered, and
    5. non-compliance with vehicle standards and safety regulations.
  • Your vehicle will not be impounded or immobilised for a first offence.
  • 7 day impoundment or immobilisation for second offence.
  • 90 days impoundment or immobilisation for third offence.
  • Vehicle liable for forfeiture on subsequent offence.

Appeal provisions include:

  • Under certain circumstances the owner or usual driver of the impounded or immobilised vehicle may make application to the Commissioner of Police for early release (e.g. severe hardship, offence occurred without owners’ consent).
  • Drivers committing first Type 2 offence will be provided with information regarding consequences of committing further offences.

Type 1 offences include:

Any of the following four offences committed in circumstances which involve a speed trial, a race between motor vehicles or a burn out:

  • Dangerous operation of a motor vehicle;
  • Careless driving;
  • Organising, promoting or taking part in racing or speed trial;
  • Wilfully starting or driving a motor vehicle in a way that makes unnecessary noise or smoke;
  • Evading Police.

Type 2 offences include:

  •  Driving a vehicle while it is uninsured and unregistered.
  • Unlicensed driving.
  • High-range drink driving – 0.15% and over.
  • Exceeding the speed limit by more than 40km/h.
  • Driving an illegally modified vehicle not complying with prescribed sections of vehicle standards and safety.
  • Failure to supply a specimen of breath or blood.
  • Driving while under a 24 hour suspension.

Drivers and owners of vehicles involved in alleged offences of this kind need to obtain urgent advice from an experienced traffic lawyer.  Gatenby Criminal Lawyers are traffic and Criminal Law experts, we are situated at Coomera, opposite the Gold Coast District Traffic Branch.  We are able to provide you with specific advice for your traffic law query.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.