Traffic and Criminal Law FAQ

Frequently Asked Questions

Dealing With The Police

Do I need to talk to the police?

If the police suspect that you have broken the law, they can ask you for your name and address to identify you. If you do not provide these details, you have committed an offence. However in almost all circumstances, you are not required to provide any further information to the police. This is important, because if you do say something to the police, they can use this against you in court. There are however situations where you might need to give more information than just your name and address. Therefore if you are being questioned by the police and you do not know what to do, ask to speak with your lawyer first or, even better, arrange for your lawyer to be present with you during the questioning.

Can the police search me?

Yes, the police can search you, but they do not have an automatic right to do so. They can only search you if:

  • You consent to being searched;
  • The police have a search warrant; or
  • If a law specifically permits them to search you.

The laws allowing the police to search a person are strict and must be complied with. They include, for example, where a police officer reasonably suspects that you are carrying certain items such as stolen property, illegal drugs or graffiti equipment. If a police officer searches you without any justifiable excuse, the search may be unlawful.

Arrest & Bail

What does it mean to be arrested?

If a person is “arrested”, it means that the police have lawfully taken that person into police custody.

What happens if I am arrested?

If you are arrested, you will be required to accompany the police to either a police station or a watch-house. There, you will be processed and then either taken to court at a later stage or released on bail. You do not need to accompany the police if you have not actually been arrested or formally detained for questioning about an indictable offence.

A person can be arrested if a warrant has been issued for their arrest. This often happens if a person does not attend court when required and are therefore in breach of their bail undertaking. There are also a number of situations where a person can be arrested without a warrant, such as where the police reasonably suspect that the person is committing an offence and they believe that arresting the person will cause them to stop committing the offence. The arrest of a person means that their liberty has been deprived. For this reason, the police should only arrest a person in accordance with strict policies and procedures.

What is bail?

If a person has been arrested and charged with a criminal offence, he or she may be released on “bail” which releases them back into the community while waiting for the next court hearing. Bail conditions can be imposed on a person, such as a requirement that the person lives at a particular address. Bail is not automatically granted and often an application will need to be made to the Court for an order permitting a person to be released on bail. An experienced criminal lawyer will be able to make this application on your behalf to assist with your release into the community.

What happens if I breach a bail condition?

A breach of bail conditions can be a very serious offence. If you do not comply with your bail conditions, your bail can be revoked and you can also be charged with breach of bail, arrested and brought back before the court.

I have an outstanding warrant. What should I do?

If you know that warrants have been issued against you for your arrest, the first thing you should do is speak to an experienced criminal lawyer as soon as you can. He or she will then guide you through the process and will represent you when you actually go to court. If you are caught by the police before you have taken any steps to address the outstanding warrant, the consequences can be much more serious for you. Therefore it is always better that you voluntarily take action first to sort out the warrant.

Legal Proceedings

I have been charged with a criminal offence. What should I do?

Even if you have been charged with a very minor criminal offence (such as urinating in public), the first thing you should do is speak with an experienced criminal lawyer. Your lawyer will be able to check whether the police are following all the correct procedures and whether there is actually enough evidence against you which justifies the charge. He or she will also ensure that no matter what you decide to do, your rights are always being protected.

I have been charged with the wrong criminal offence. What should I do?

Sometimes a person is charged with the incorrect offence. For example, a person might be charged with break and enter when they should have only been charged with trespass. If this happens to you and you do not realise the error, you may be convicted of a much more serious offence than necessary.If you have been charged with a criminal offence, you should always speak with an experienced criminal lawyer to discuss the allegations being made against you. If your lawyer believes that the charge is incorrect, or that it would be more appropriate for you to be charged with a lesser offence, then he or she can negotiate your charge with the prosecution.

Should I plead guilty or not guilty?

There is no simple answer to this question, as it depends on a wide range of factors. In addition to whether you admit that you committed the offence or not, other factors that should be considered include: whether you have been charged with the most appropriate offence; whether there are any diversionary programs available; and whether the prosecution have enough evidence to justify the charge. Before you decide how you want to plead, it is recommended that you get the advice of an experienced criminal lawyer who will go through your matter with you and then give you his or her advice.

Do I need a lawyer?

Almost always, the answer will be yes. For reasons why you should speak with a lawyer, see here. The only time when it might make sense for you to represent yourself is if you have been charged with a very minor offence, you have no previous history and you intend to plead guilty. However even in very simple cases, a lawyer can often help you by ensuring that your court matter proceeds with minimal disruption to your life.

What will happen at my first court appearance?

If your offence is a simple one and you intend to plead guilty, then you may be able to have your matter heard and finalised on the first appearance. However if your matter is serious or if you want to plead not guilty, then it will be adjourned to a later date. If you have a lawyer representing you, he or she will meet you at court and will arrange with the prosecutor for your matter to be heard. He or she will then speak on your behalf when the matter is before the magistrate and will let the Court know your intentions. However if you are self-represented, you will need to speak with the prosecutor yourself to let them know that you are ready for your matter to be heard. When your matter is called before the magistrate, you will need to let the Court know what you intend to do with your matter. If there is a Duty Solicitor at the Court, he or she may also be able to provide you with some guidance on what to do and say.

I’m under 18. Can I be charged with a criminal offence?

Yes. Any person aged 10 or older can be charged with a criminal offence in Queensland. If the accused person is aged between 10 and 14, there is a presumption that a child is ‘incapable of crime’ under legislation or common law, however this presumption can be rebutted by the prosecution if, for example, the accused has earlier similar criminal history. In most circumstances, matters involving an offender under the age of 17 will be heard in a special court called the Childrens Court which has its own particular rules and procedures. Offenders aged 17 years old are treated as adult offenders in Queensland. This means that they can be sent to adult jails and can do community service alongside adults. Queensland is the only jurisdiction in Australia that treats 17 year olds as adults for the purposes of the criminal and justice system.

What does Onus of Proof mean?

The term “onus of proof” refers to the duty of one party to make out the case against the other party and to prove to the court that the case has been established. The general principle in Queensland is that the prosecution has the onus of proof. This means that it is up to the prosecution to prove their case against the accused person. However in some situations, the accused person bears the onus of proof if they want to rely on a defence.

Criminal Offences & Penalties

What penalty will I receive if I am convicted of a criminal offence?

It depends. If you are convicted of a very minor offence, you may receive a small fine and nothing more. On the other hand, you can be given a sentence of life imprisonment for very serious offences. The actual penalty you will receive therefore obviously depends on the offence that you have been charged with. However there are additional factors which determine what penalty you will receive, including: whether you pleaded guilty or not guilty; whether there were any aggravating circumstances; whether you have already paid compensation (if applicable); and whether there were any victims. An experienced criminal lawyer will know how to represent you so that you receive the best penalty, taking into account all the circumstances.

Will a conviction be recorded if I am found guilty?

Normally, yes. If you are convicted of an offence, the Court will usually want to record a conviction. This can have a significant impact on your future, including your ability to get a job or to travel overseas. However the Judge or Magistrate often has the discretion whether to record a conviction or not. This means that if appropriate and convincing submissions are made to the Court, a conviction might not be recorded. You should speak with your lawyer about whether a conviction will be recorded or not as it will depend on your individual circumstances.

Can I appeal my conviction?

Yes, a person who has been convicted of an offence in Queensland can appeal their conviction to a higher court, provided that they have a valid ground of appeal. The relevant grounds for an appeal against a conviction in Queensland are:

  • The jury’s verdict is unreasonable or cannot be supported having regard to the evidence; or
  • The trial judge has made a wrong decision on a question of law; or
  • There has been a miscarriage of justice.
  • An accused may also appeal against a sentence that was imposed by the Court. The primary ground for an appeal against sentence is that the sentence was “manifestly excessive”.

I need to attend probation/parole. Where do I need to go?

For a full list of Probation and Parole offices, click here.

Drink Driving & Random Breath Tests

What alcohol limit applies to me?

In Queensland, the alcohol limit that applies to drivers depends on what type of driver’s licence they hold. Generally speaking, the following legal alcohol limits apply:

  • Learner, provisional or probationary licence: 0.00
  • Restricted licence: 0.00
  • Licence allowing driving of particular vehicles (eg trucks, buses, taxis etc): 0.00
  • Open licence: below 0.05

Will I lose my licence if I am convicted of drink driving?

Yes. In Queensland, there is a minimum licence disqualification of one month that is imposed for drink driving offences. This means that even if you are just 0.01% over the applicable alcohol concentration level, you will lose your licence for at least a month. However if you have been charged with a drink driving offence and your alcohol reading is less than 0.15%, you may be able to apply for a restricted work licence which will allow you to continue driving for work purposes. You should speak with an experienced lawyer to discuss whether you can apply for this type of licence.

Can I refuse a random breath test?

No. If you do not provide a sample of breath for testing as requested, you can be charged with failing to provide a sample of breath. This offence is treated in the same way as if you were driving with a blood alcohol concentration of 0.15% or above which results in a six month licence disqualification as a minimum. You can be convicted of this offence even if you had not consumed any alcohol before driving. A defence may be available if, for example, you are medically unable to provide the sample of breath as required, however you will need to provide evidence of this. For this reason, you should seek professional legal advice if you have been charged with failing to provide a sample.

Can the police search my vehicle during a random breath test?

Maybe. The police have the power to stop and enter a vehicle in order to arrest or detain someone. They can also stop and search a vehicle if they reasonable suspect that the vehicle contains certain items including unlawful weapons, drugs or stolen property. This means that if you are stopped for a random breath test, the police should not have the authority to search your vehicle without a warrant unless they can show that they reasonably suspected that you were involved in the commission of a crime in some way. If the police want to search your vehicle and they say that they have a search warrant, ask to see a copy of it and make sure all the details are accurate and complete.

Can I be charged with drink driving a horse?

Yes. The law states that you can be convicted of drink driving horses and other animals. However unlike being caught driving UIL in a car, you shouldn’t lose your driver’s licence.

Can I be charged with drink driving a bicycle?

Yes. You can also be charged with drink driving skateboards, scooters and other non-motorised vehicles. However unlike drink driving a car, you should not lose your driver’s licence and should only receive a fine.

Can I be charged with drink driving if I wasn’t actually driving?

Yes and no. While you shouldn’t be charged with driving UIL if you weren’t actually driving, you can be charged with the offence of being in charge of a vehicle while under the influence of alcohol. This offence can arise if, for example, you were found by the police asleep in the driver’s seat with the key still in the ignition. A conviction for an offence of being in charge while under the influence can have the same outcome as if you were actually drink driving and therefore if you are going to be near your vehicle while under the influence, you need to be careful that you do not put yourself in a position where you can be charged with this offence.

Speeding & Speed Detection Devices

I have been caught speeding. How many demerit points will I receive?

The number of demerit points you will accumulate will depend on how much over the speed limit you were driving. The following list shows how many points will be accumulated, and how much the fine will be, for each speeding offence.

  • Less than 13km/hr over the speed limit: 1 demerit point and a $146 fine
  • 13 – 20km/hr over the speed limit: 3 demerit points and a $220 fine
  • 20 – 30km/hr over the speed limit: 4 demerit points and a $366 fine
  • 30 – 40km/hr over the speed limit: 6 demerit points and a $513 fine
  • More than 40km/hr over the speed limit: 8 demerit points and a $1,026 fine

Will I lose my licence for speeding?

Maybe. It depends on the type of licence you hold, how many demerit points you have already accumulated and of course the speed you were going when you committed the speeding offence. If you hold an eligible Queensland licence and your speeding offence causes you to accumulate too many demerit points, you may be able to elect to go on a good driving behaviour period. This period lasts for one year and you can only accumulate one demerit point for the whole year. If you accumulate two or more demerit points during this period, your licence will be suspended for twice the suspension period that would have applied if you had not elected for the good driving behaviour period. However if you are caught driving 40km/hr or more over the speed limit, your licence will automatically be suspended. You will not be offered the option of a good driving behaviour period, but you may be able to apply for a special hardship order which will allow you to continue driving for certain purposes.

Can I dispute my speeding fine?

Yes, provided that you have not yet paid the fine. If you want to dispute a speeding fine, you will need to elect within the specified time-frame to have your matter heard in court. You will then need to attend court on the required date where you will inform the Magistrate that you want to plead not guilty to the offence. Your matter will then be listed for a summary trial. Before you dispute a speeding fine through the courts, we recommend that you get the advice of an experienced traffic lawyer. He or she will sit down with you and go through your matter and will then advise you on whether you have a legally valid reason to dispute the fine.

Can cruise control stop me from speeding?

No. Although cruise control can help you to maintain a constant speed on a flat road, however if you are going downhill, it will not slow you down to match the speed limit. Many people unfortunately get caught out by this and you should always make sure that you are monitoring your vehicle’s speed, even if you are using cruise control.

Can I be charged with drink driving a horse?

The Queensland Police use four different methods to detect speeding motorists:Speed detection devices

There are several types of speed detection devices used in Queensland. They are:

  • Dash-mounted radars used in police patrol cars;
  • Hand-held lasers (also known as LIDAR);
  • Mobile speed cameras; and
  • Fixed speed cameras.

Follow speed

The follow speed method is used where the speed of a vehicle is determine by comparing it to the speed of a following police car. This is a highly unreliable method given the variances that can apply.

Estimation

The estimation method is used where a police officer observes a vehicle and makes an estimation about the vehicle’s speed based on the officer’s experience and knowledge. This method lacks accuracy but may in some circumstances be sufficient to at least show that a vehicle was exceeding the speed limit to an extent.

Speed formula

The speed formula method relies upon the time that a vehicle travels over a known distance. This can be achieved by either using an electronic time switching mechanism or the manual actuation of a timing device. This method is generally used by the police as a last resort.

Can I be charged with drink driving a bicycle?

Yes. You can also be charged with drink driving skateboards, scooters and other non-motorised vehicles. However unlike drink driving a car, you should not lose your driver’s licence and should only receive a fine.

Can I be charged with drink driving if I wasn’t actually driving?

Yes and no. While you shouldn’t be charged with driving UIL if you weren’t actually driving, you can be charged with the offence of being in charge of a vehicle while under the influence of alcohol. This offence can arise if, for example, you were found by the police asleep in the driver’s seat with the key still in the ignition. A conviction for an offence of being in charge while under the influence can have the same outcome as if you were actually drink driving and therefore if you are going to be near your vehicle while under the influence, you need to be careful that you do not put yourself in a position where you can be charged with this offence.

Application to Remove Licence Disqualifications

Can I apply for the removal of my licence disqualification?

If your Queensland driver’s licence has been disqualified for more than two years, and at least two years have passed since you were disqualified, then you should be eligible to apply to have the remainder of the licence disqualification removed. When considering whether to grant your application, the Court will consider a number of factors such as: whether you have been charged with any driving or criminal offences since your licence was disqualified; the reason you want your licence disqualification removed; and what you have been doing in the years since your licence was disqualified.

My disqualification removal application was unsuccessful. Can I apply again?

Yes. Even if your licence was disqualified absolutely by a Court, you can still make an application to have the disqualification removed. However because your licence was disqualified absolutely, it may be more difficult to convince the Court to grant your application than if your licence was disqualified for only 3 years, for example. An experienced solicitor should make this application on your behalf to ensure that your application is successful.

Special Hardship Orders

Can I apply for the removal of my licence disqualification?

A person can apply for a special hardship order if:

  1. They have accumulated too many demerit points while on a good driving behaviour period; and/or
  2. They have committed a speeding offence of over 40km/hr.

Other criteria apply, including the requirement that your driver’s licence must not have been suspended or disqualified within the previous 5 years. You also need to suffer some form of hardship if your application is refused. If you think that you might need a special hardship order, you should speak with an experienced traffic lawyer to discuss your options.

What restrictions can apply if I am granted a Special Hardship Order?

If the Court grants your application for a special hardship order, it can impose certain restrictions on your licence. These restrictions can include the type of vehicle you are allowed to drive while on a special hardship licence, the hours in which you can drive and the purposes for which you can drive while on the licence. If you breach any of these restrictions, you can be fined up to $2,000 and your licence can be disqualified for the rest of the special hardship suspension period as well as an additional three months.

What happens at the end of my Special Hardship Order period?

At the end of your special hardship order period, your suspension period ends (assuming you have not breached the special hardship order). However before you can start driving again, you will need to go to Queensland Transport to apply for the same licence you held before the special hardship order period started.

My Special Hardship Order application was unsuccessful. Can I apply again?

No. If your special hardship order application is unsuccessful then you do not get another chance to apply again. It is therefore very important that you do not make any mistakes and that you are fully prepared. For this reason, we always recommend that applicants use an experienced traffic lawyer to ensure the best chance of a successful application.

Drink Driving Work Licences

Can I apply for a drink driving work licence?

If you have been charged with a dui (drink driving) offence, then you may be eligible to apply for a work licence. You may also be eligible if you have been charged with a minor drug driving offence. The criteria for applying for a work licence is very strict and therefore you should speak with an experienced traffic lawyer to discuss whether you can apply or not.

What restrictions can apply if I am granted a work licence?

The most common restriction that applies to work licences is that a person can only drive for work purposes and between the hours permitted. This means that you can only drive for purposes directly connected to your employment and only within the hours that the Magistrate allowed. Other restrictions that can apply include whether passengers will be allowed and the type of vehicle a person can drive while on a work licence.

What happens at the end of my work licence period?

At the end of your work licence period, your restricted licence is no longer valid and you are legally considered to be unlicenced. Before you can begin driving again, you will need to go to Queensland Transport and apply for an ordinary licence. Once you have been given a new licence by Queensland Transport, you can continue driving (assuming your licence has not been suspended/cancelled for another reason).

My work licence application was unsuccessful. Can I apply again?

No. If your work licence application is unsuccessful then you do not get another chance to apply again. It is therefore very important that you do not make any mistakes and that you are fully prepared. For this reason, we always recommend that people wanting to apply for a work licence use an experienced traffic lawyer for the best chance of a successful application.