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.

NSW to Target Repeat and High Range Drink Driving with Interlock

interlock devicesHigh Range Drink Driving

Repeat and those caught high range drink driving will have to install an alcohol interlock device under legislation to be introduced into NSW parliament early next year.

While there is a voluntary scheme currently in place, it is believed this mandatory system will prevent at least 140 alcohol related crashes.

Alcohol Interlock

An alcohol interlock will be installed in a person’s car if they have been caught drink driving twice in five years, or once with a blood-alcohol level above 0.15 (high range drink driving).

Magistrates will also have the power to make motorists keep the interlock in place for longer than the mandatory minimum term of 12 months.

Interlocks are connected to a vehicle’s ignition and prevent the car from starting if the driver has been drinking.

The proposed laws appear to mirror those currently operating in Queensland. Queensland drink drivers have discovered that there is  considerable expense in having the interlock device fitted to the vehicle and maintained during the operational period.  They have also found that Queensland Transport monitors the calibration level of the device closely.

Queensland Interlock Scheme

In Queensland there is provision to opt out of the scheme, however an additional disqualification period of two (2) years applies.  It is not known whether similar provisions will apply.

For advice on the implementation of the new laws you should contact an experienced traffic lawyer.

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.

 

Do I Have to Be Driving My Car to Be Charged With Drink Driving?

UILThe majority of motorists understand that if  they are caught drinking and driving they will loose their licence.  Indeed the bulk of our work as experienced traffic lawyers is aimed at minimising the disqualification period or securing a work licence for people caught drinking and driving.  What does take people by surprise is that they can lose their licence for sleeping in the car or even simply having the car keys in their pocket while intoxicated.

The Transport Operations (Road Use Management) Act 1985 (Qld) imposes sanctions where a person who is over the relevant blood alcohol concentration:

  1. drives a motor vehicle, tram, train or vessel; or
  2. attempts to put in motion a motor vehicle, tram, train or vessel; or
  3. is in charge of a motor vehicle, tram, train or vessel.

The offence of being in charge of amotor vehicle is one of a cognate, or like nature offence, of “driving” a motor vehicle whilst under the influence of liquor. There are a number of cases which have dealt with this issue where the accused has reclined the drivers seat and turned the radio on while sleeping off a big night. The court has determined that such conduct makes out the offence of being in charge.

A more significant example of being in charge is the unreported case of Elloy v Noble (15/1987 Townsville, 9 June 1987) where the owner of a motor vehicle allowed another to drive his car. It was involved in an accident and the driver absconded leaving the keys in the ignition. While being questioned by police the Applicant leant against the car. His Honour, Judge Wylie DCJ upheld the conviction and found that the Applicant, by his conduct was “in charge” of a motor vehicle.

In other decisions the Court has held that even where the person is outside the vehicle at the relevant time, where they have recently driven it, or are in a position to drive or attempt to drive the vehicle, they are “in charge” and the offence is made out.

Section 79(6) of the legislation, provides a defence to the offence of being in charge. It relevantly provides that the court shall not convict a person of being in charge where the person has satisfied the court that at the material time they:

  1. by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of the motor vehicle; or
  2. not being in that motor vehicle, by some action;

had manifested and intention of refraining from driving that motor vehicle whilst the defendant was under the influence of liquor or a drug, or as the case may be, whilst the concentration of alcohol in the defendant’s blood equaled or exceeded the blood alcohol concentration.

The decided case require two things to be established:

  1. the existence of an intention of refraining from driving while under the influence of liquor of a drug and
  2. a manifestation of that intention, by occupying a compartment other than that containing the drivers seat.

It is possible to be charged with drink driving in the colloquial sense not only when you are not driving, but in some cases when not even in the vehicle. The dangers of drinking and driving are well known, but the legal consequences of being in charge of your vehicle whilst intoxicated are equally significant.

The issue of being in charge of a motor vehicle when a person is not actually driving is often a complex one that turns on the specific facts.  You should always seek professional legal advice before appearing in court for an offence of this nature.  We are Coomera’s traffic law experts and are able to help with any traffic law issue on the Gold Coast or Brisbane.

EVADING POLICE – MANDATORY FINES AND DISQUALIFICATION. WHAT ARE MY OPTIONS?

The Queensland Government in reaction to a number of police pursuits has imposed mandatory fines and disqualification periods for all offences of Evade Police.  While this may seem appropriate for substantial offences involving dangerous, high speed, police pursuits, the reality is that minor infringements will also see the imposition of these mandatory sentences.
Section 754 of the Police Powers and Responsibilities Act 2000, makes it an offence for a driver of a motor vehicle to fail to stop if a police officer, using a police service vehicle, gives the driver a direction to stop the motor vehicle.
A police officer will usually give a driver a direction to stop the motor vehicle by activating the standard red and blue flashing lights and/or siren.
The driver is then compelled, under section 754(2) of the  Police Powers and Responsibilities Act 2000, to stop the motor vehicle as soon as reasonably practicable, if a reasonable person, would do so in the circumstances.
The penalty for failing to stop was recently amended by the Criminal Law Amendment Bill 2012, to include a  mandatory minimum sentence.
A driver who fails to stop when directed, or evades police, faces a minimum fine of 50 penalty units. In dollar terms, that is a minimum fine of $5500.00.
In addition to this fine, if a person is convicted of the offence, the court must also impose a minimum disqualification period of two years.
To be found guilty of this offence, the legislation states that it is sufficient evidence that, in failing to stop, the driver “took action” to avoid being intercepted by police.
Evading Police
Evade police – $5,500 & 2 years loss of licence.
A minimum fine of $5500 and  mandatory two-year disqualification is a significant penalty for this offence considering the following scenario:
  1. John Doe, a provisional licence holder is intercepted driving along the Gold Coast Highway, at night, with more than one passenger in the vehicle, contrary to the restrictions on his licence.
  2. He sees the flashing blue and red lights behind him, and in a moment of foolishness accelerates away to avoid police and the potential loss of licence.
  3. He quickly sees the foolishness of his situation and pulls over allowing police to catch up with him. He has, albeit for an instant “taken action” to avoid police detection.
  4. Police charge him with an offence of “evading police”.
  5. He now faces a minimum $5500 fine and a mandatory two-year disqualification of his licence, causing him severe financial hardship, the loss of his employment and the inability to transport his young children to school.

 

If John Doe contacted Gatenby Criminal Lawyers immediately, our experience solicitors would explore a number of avenues to reduce the severity of the charge.  We routinely make submissions to the prosecution asking them to proceed on a lesser allegation thereby enabling the Magistrate to utilise their discretion as to both the duration of any disqualification period and the amount of any fine.
If you have been charged with evading police, call Gatenby Criminal Lawyers now on (07) 55  800  120 and speak with one of our experienced criminal solicitors. The first consultation is free.
We will sit down with you and provide professional advice along with an obligation free estimate of the cost of our representation with respect to your matter.

Mobile Phone Laws

New mobile phone laws came into effect last year on 1st November in New South Wales, where if your car is moving or stationary, you can not

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.

utilise your mobile phone in any way. This includes phone calls and texting obviously, but also includes playing music or having your phone switched on and in your lap.

Queensland counterparts have yet to confirm whether they are introducing the new laws although police have a zero tolerance attitude toward mobile phone usage by drivers. Last financial year, Queensland Police fined 30,780 drivers for talking or texting on phones at the wheel, including 76 cyclists.

In New South Wales the changes state that while a vehicle is moving or stationary (but not parked), a driver may only use a mobile phone to make or receive a call or use the audio playing function if:

  • the mobile phone is secured in a fixed mounting; or
  • if not in a mounting, must not require a driver to touch or manipulate the phone in any way.

All other functions including texting, video messaging, online chatting, reading preview messages and emailing are prohibited. The new laws make it clear that a driver in a moving or stationary vehicle MUST NOT HOLD a phone in his or her hand other than to pass the phone to a passenger.

State penalties:
QLD – 3 points – $330
NSW – 3 points – $298 (if in a school zone 4 points – $397)