If you are charged with drink driving it is important to comply at all times with the police. The arresting officer will take notes or in some cases record the arrest and subsequent processing. The notes and recordings will then form the basis of a police brief (also known as a QP9) that is presented to the police prosecutor who will attend Court on the date notified to you in the Notice to Appear.
If you intend to plead guilty the police prosecutor will then read from the police brief to the Court. It is important to obtain a copy of the police brief at the earliest opportunity, but in any case prior to any guilty plea to determine what facts will be read to the Court. There can sometimes be mistakes contained in the brief that may affect the way the Court views the offence and may lead to a more severe penalty that would otherwise be imposed.
You should seek advice in relation to any drink driving charge as soon as possible to determine how you wish to deal with the matter.
You are required to attend Court on the date listed in the Notice to Appear. The Notice to Appear is a small piece of paper given to you by the arrest officer at the time you were arrested and charged.
You will also be given two other documents at the time of being arrested and charged. One is a Breath Analysis Certificate.
This document will provide the particulars of the blood/alcohol concentration (or BAC) which is usually expressed in a percentage. The legal limit, unless the driver is subject to a no alcohol condition, is up to and including 0.049%. A person operating, or in the care and control of, a vehicle with a BAC level of 0.050% and higher commits an offence.
The next document that you will be given by the arresting officer will be a Notice of Suspension or Disqualification.
As the name suggests when an officer gives you this notice your driver’s license will be suspended or disqualified as indicated. Usually, if your BAC is between .050% and 0.149% your driver’s license will be suspended for 24 hours from the time shown in the Notice. If your BAC is 0.150% and over you will be immediately suspended until the mater is heard in Court. There are other circumstances when this type of suspension may also arise and those are listed in the Notice.
If you are caught driving during any period of suspension or disqualification you be further charged with driving whilst suspended or disqualified and that additional charge will be heard together with the original charge in the Court. Due to recent amendments of the Queensland traffic laws if you are sentenced to more than one period of disqualification (i.e. for two separate charges such as driving whilst under the influence and driving whilst suspended) the disqualifications imposed by the Court must be served cumulatively. This means that the disqualification periods will be added together.
Attending Court
It is very important that you attend Court on the date in the Notice to Appear. If you do not attend the Magistrate may choose to deal with the matter in your absence. This will likely mean that you will be convicted of the offence, the offence will be recorded in your traffic history, your driver’s license will be disqualified and you will be fined. The details of the conviction, disqualification and fine will be posted to you at your address known to Queensland Transport. The Magistrate may order a warrant be issued for your arrest for failing to appear before the Court.
When you attend Court for the first time on the date in the Notice to Appear you will to speak to the police prosecutor. The prosecutor will ask you what you want to do. Your options are:-
adjourn the matter
plead not guilty;
plead guilty;
ask for a restricted work license.
You must always stand when speaking to the Magistrate and should address the Magistrate as “your honour”.
1. Adjourning
You may ask the Magistrate for a short adjournment of 1 or 2 weeks. The usual reason that people seek an adjournment is to obtain legal advice. Whilst the Magistrate is not obligated to give you the adjournment, it is usually allowed for the first time you appear before the Court. Magistrates are much more reluctant to grant further adjournments without a good reason.
2. Not Guilty
You may believe that you did not commit the offence in which case you may wish to plead “not guilty”.
If you tell the Magistrate that you wish to plead “not guilt” the matter the Magistrate will give you a date for the trial. At the trial the police prosecutor will have to provide evidence to the Court in support of the charge against you. You will be given an opportunity to test the evidence of the prosecution by asking the witnesses for the prosecution questions. This is called “cross examination”. You will also be allowed to have your own witnesses tell their version of the events which would support your evidence that you are not guilt of the offence. You are not required to have your own witness or prove you are not guilty. It is a matter for the prosecutor to prove you are guilty.
When giving you the date for the trial it is likely that the Magistrate will strongly advise you to seek legal advice.
3. Guilty
If you say that you wish to plead “guilty” to the charge, the police prosecutor will read the facts in support of the charge. As mentioned above, these facts are read from the police brief, so it is important that you have had a chance to read the brief prior to it being read to the Court. There are two important reasons for this; firstly, you should check that there are no factual errors in the brief that may give the wrong impression to the Magistrate, and secondly, you should be prepared to speak to the Magistrate on issues that may be raised in the brief.
After reading the facts to the Court, the prosecutor will then hand to the Magistrate any traffic or criminal history that you may have.
The Magistrate will then ask you if you have anything to say.
It is important that any issues raised in the police brief and the criminal and traffic histories be addressed. It is also important that the effect that any period of disqualification and fine will have upon you, your life and your work be clearly communicated to the Magistrate. In other words, it is important to present any mitigating factors to the Magistrates that can be taken into consideration in sentencing.
After the submissions are completed the Magistrate will tell you the period of a disqualification and the amount of the fine. The Magistrate may tell you how long you have to pay the fine, and in default of payment how many day you may have to serve in prison. The Magistrate may also refer the fine to the State Penalties Enforcement Registry (“SPER”). You will then be contacted by SPER and arrangements can be made for payment.
4. Restricted Work Licenses
You may be able to ask the Court for a Restricted Work License allowing you to drive for purposes directly connected with you means of earning a living at certain times of the day on certain days of the week.
To be eligible for a restricted work license you must satisfy the following criteria:-
you must have a current open Queensland drivers license;
you must have a BAC reading under 0.150%;
you must not have had a disqualification or suspension of your driver’s license for any reason in the last five years.
If you can satisfy this criteria then you must tell the police prosecutor that you want a restricted work license. When your name is called you will then tell the Magistrate that you wish to apply for a restricted work license. You are not suppose to enter a plea of guilty or not guilty at that time. The Magistrate will then give you another date in approximately 1-2 months for the hearing of your application for a restricted work license.
Prior to the hearing date you must prepare the application and supporting affidavits. You must use the approved form for the application. The application forms are available at the Magistrates Court and Queensland Transport service centres.
You must also use the approved format for you affidavits pursuant to the Uniform Civil Procedure Rules 1999. This is a sample copy that is provided on the Courts website, http://www.courts.qld.gov.au/.
The person whose affidavit is being used (the “deponent”) must swear (or affirm) that the contents of the affidavit are true and correct in front of a Justice of the Peace or a solicitor.
You must file your application and affidavits in the Magistrate Court where your application is to be heard not later than one week prior to the hearing date. You must also provide copies of the application and supporting affidavit evidence to the police prosecutor attached to the relevant Court.
If you are self employed then you will only have the application and your affidavit. If you are employed then you will have the application, your affidavit and your employer’s affidavit. It is usually not necessary for your employer to attend the hearing, just to swear the affidavit.
To succeed in the application you will need to provide evidence in the affidavits to support the following facts:-
that you are a fit and property person to hold a driver’s license having regard to your traffic history and the circumstances of the drink drive offence;
that you require your license for work and if you do not have a driver’s license you will be deprived of the means of earning a living;
if you are deprived of the means of earning a living due to the disqualification of your driver’s license you and/or your family will suffer severe financial hardship.
If you can not satisfy the Magistrate that you are a fit and proper person to hold a driver’s license then the Magistrate will not hear from you on the issue of your need for a driver’s license or whether you will face hardship as a result of a disqualification of your driver’s license.
Even if you satisfy the Magistrate that you are a fit and proper person, you may not be able to satisfy the Magistrate that you and/or your family will suffer the hardship.
In either case, if you are unable to satisfy the requirements then your application will fail and your driver’s license will fail.
At the hearing the Magistrate will ask you if you are ready to proceed with your application. If you are not ready to proceed you will need to seek an adjournment. If you are ready to proceed then you need to tell the Magistrate that you wish to plead “guilty” to the charge and make application for a restricted work license. The Magistrate will then accept your plea but will reserve judgment until after the application has been heard.
The Magistrate will then read your application and supporting affidavit evidence. The Magistrate may then ask you some questions regarding your documents. The Magistrate may also require you to standing in the witness box and swear (or affirm) that your evidence will be the truth. The Magistrate and the police prosecutor may then ask you questions, under oath, regarding your evidence.
If your application is unsuccessful then the Magistrate will disqualify you from holding or obtaining a Queensland driver’s license for a period of time depending on the facts of the offence and your traffic and criminal history. You will also be fined.
If you application is successful then the Magistrate will still disqualify you from holding or obtaining a Queensland driver’s license for a period of time depending on the facts of the offence and your traffic and criminal history and will fine you, however the Magistrate will make an Order directing that Queensland Transport issue you with a restricted work license authorizing you to driving a certain class of vehicle, for certain times of the day and days of the week for purposes directly connected with your means of earning a living. The Magistrate may impose additional conditions such as a ban on passengers or the requirement that you carry a log book at all time with the purpose and destination of the trip recorded prior to undertaking the trip.
Regardless of whether you are successful with your restricted license application you will not be allowed to drive from the Court. If you are unsuccessful you will continue to be disqualified as discussed above. If you are success you will need to wait until the clerk of the Court prepares a copy of the Order for you. You must then take a copy of the Order to Queensland Transport who will issue you with a probationary driver’s license noting the conditions imposed by the Court.
If you are caught driving before you have received your new driver’s license you will be disqualified from driving and fined and you will lose your right to the restricted work license. Similarly if you are caught driving outside of the restrictions you will be disqualified from driving, fined and will lose your right to the restricted work license.
The comments above are a general discussion of charges relating to drink driving and should not be taken as legal advice. Before you make any decisions you should consult a qualified solicitor to protect your interest. You can speak to a solicitor at D.C. Adolphe Legal by calling (07) 3010 9492.
DRINK DRIVING 
