Drink Driving Convictions and Blue Cards

If you are facing a drink driving charge in Queensland, it is highly likely that you are concerned about what impact the punishment will have on your life.

The courts have a lot of powers when it comes to sentencing drink drivers. This can include fines, licence disqualifications and even jail.

However, for lots of Queenslanders, their biggest concern might be what impact a drink driving conviction will have on their Blue Card.

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What Are Mitigating Circumstances?

When a person is convicted of a crime in Queensland, they will be sentenced to an appropriate punishment. This could be anything from a fine to a lengthy jail term.

Generally speaking, judges and magistrates have the power to decide what sentence should be given. The sentence however must be consistent with the law and also within an appropriate range.

This means, for example, it is simply impossible for a person to get a fine for murder. On the other hand, it is impossible for a person to go to jail for public urination.

When deciding what sentence should be imposed, the court has to take into account a number of different factors and the Penalties and Sentences Act provides guidelines to assist the court in considering these factors.

Some of these factors are referred to as “mitigating circumstances” and we will review these below.

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What Happens If You Miss a Court Date?

If you are charged with a traffic or criminal offence in Queensland, you will (almost always) need to attend court. You will then have the option to plead guilty or not guilty to the charge.

However, people sometimes miss their court date and this could be for any number of reasons.

For example, a person may be sick on the day of court and be so physically or mentally unwell that they cannot make it to court.

Occasionally, a person may simply be disorganised and forget that they have a court date. This often happens when the person is heavily intoxicated when being charged with the offence. They wake up the next morning and don’t remember that they were in fact charged with an offence.

If you think that you will miss a court date for any reason, or if you think you might have already missed an appearance, it is important that you understand what might happen to you as a result and what you should do to fix the problem.


The Penalties for Missing a Court Date

If you fail to attend court at the required time, the consequences can be serious.

If it was your first court appearance for your case, the magistrate will likely issue an arrest warrant. This means that the police have the power to find and arrest you and bring you before the court for failing to appear.

You will then need to explain why you missed court. If you are unable to provide a good enough reason, you will be punished by the magistrate. Ordinarily, this would involve a fine for the first time you fail to appear. However, if you have a history of failing to attend court, a magistrate can impose a more serious punishment which can include imprisonment.

If it was not your first time in court and you had previously been granted bail for the offence, you can be charged with breaching your bail conditions. This is seen as contempt of a court order and is treated very seriously.

In addition to being given a punishment such as a fine or jail, you may also need to convince the magistrate that you deserve to be given bail again. This can be difficult if you have just breached your bail conditions.


What To Do If You Fail To Appear

If you fail to attend court when required, the first thing you should do is seek legal advice. An experienced criminal lawyer will be able to provide you with advice and possibly appear in court with you to explain why you did not attend court.

If you have any documents which explain why you did not attend, you should make sure you get these. This could include, for example, a medical certificate from your doctor.

Lastly, you should surrender yourself to the police or the local courthouse. You should do this as soon as possible, especially if you know that a warrant has been issued. It is a much better option than being arrested by the police and taken to court.


Deemed Possession of Drugs

It is a well-known fact that it is a crime to possess certain items in Queensland.

For example, the Weapons Act makes it illegal to possess weapons such as a switchblade knife.

It can also be a criminal offence under the Summary Offences Act to possess certain items if they are to be used for committing other offences, such as burglary or unlawful use of a vehicle. This could include a crowbar, for example.

The laws relating to possessing dangerous drugs in Queensland is quite clear and these are outlined in section 9 Drugs Misuse Act.  In summary, it is an offence to possess dangerous drugs (such as cocaine, marijuana etc) unless the person has a lawful excuse.

What is less-known however is that you do not need to physically be in possession of dangerous drugs to be charged with being in possession. In fact, they do not even need to be your drugs. This unusual rule is called “deemed possession”.

What Is Deemed Possession

The relevant law about drug possession states that “a person who unlawfully has possession of a dangerous drug is guilty of a crime”.

However more detailed information about possessing drugs is found in section 129(1)(c) Drugs Misuse Act. This section states that if drugs are found in or on a place that is owned or under the control of a person, that person can be charged with possessing the drugs.

In practical terms, this means that you can be charged with possessing drugs if the police search your vehicle and drugs are found in the boot.

This law also has serious consequences for people who own or rent a home that has drug users visiting. If those visitors leave drugs at the residence, the owner/renter can be charged with possessing the drugs.

If you are deemed to be in possession of drugs, you can be charged and convicted as if you were in fact the owner of the drugs.

Is There a Defence?

The law provides a defence which states that a person will not be guilty of the offence if they can prove that he or she neither knew, nor had reason to know, that the drug was in or on the place.

This defence, however, creates a serious issue for anyone wanting to rely on it.

Unlike the standard rule that the police need to prove their case against an accused, this defence requires the accused to prove that they did not know about the drugs.

The problem is that it is extremely difficult to provide evidence that you did not know something!

Alternatively, an accused may be able to argue that there was no reason for them to suspect that the drugs were present. Again, this can be difficult to prove.

How To Avoid Being Charged With Deemed Possession

The best way to avoid being charged with possessing dangerous drugs is, of course, to avoid drugs altogether.

However, as this article shows, you also need to make sure you don’t get charged with possessing someone else’s drugs.

You can take steps to avoid this by knowing more about your friends or visitors. If you suspect that they be in possession of drugs, you can ask them to not bring them into your house or car.

If you lend your car to someone or let someone stay in your home while you are away, you can also ask them whether they have left anything that may be illegal.

We understand however that these steps might not be so easy in real life.

Therefore if you face being charged with possessing dangerous drugs (whether your own or someone else’s), you should seek legal advice immediately. An experienced criminal lawyer will be able to help you navigate the criminal justice system to get the right outcome.


You Have The Right To Silence – Use It!

“You have the right to remain silent”.

This is a phrase we hear so often that it’s almost become a cliché. In fact, if you were to ask someone to name a legal right that they know they have, they would probably tell you that they have the right to silence.

Despite this, we at Harper Finch Lawyers are concerned by how many people don’t exercise their right to silence, leading to all sorts of problems with their case later on.

In this article, we look more closely at the right to remain silent and just why it’s so important to exercise your right.

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Can You Record The Police?

If you are stopped by the Queensland police, you may be tempted to pull out your mobile phone to record them interacting with you. By doing so, you would have a video record of what was said and done by the police in case there was a dispute later.

However, do you know if you are in fact legally allowed to record the police? Do you know what your rights are if you are ordered to confiscate your phone?

These are the questions that we explore in this article.

Recording the Police

In Queensland, there is no specific law that states that you cannot film the police while they are carrying out their duties in public. This means that you have the right to record them, regardless of whether they are dealing with you or someone else.

As a result, the police do not generally have any of the following powers if they see you filming them:

  • Confiscating your phone;
  • Asking you to stop recording;
  • Telling you to delete your images or videos.

There are, however, certain situations where recording the police might not be allowed or where the police may have certain specific powers.

Obstructing the Police

It is a criminal offence in Queensland to obstruct a police officer in the course of their duties. If you do unlawfully obstruct a police officer, you face fines or even possibly jail.

Therefore, if you are filming the police while they are carrying out their duties, but you are also obstructing them at the same time, you can be arrested and charged with the offence of obstruction. As a result, it is important that you do not get in the way of the police while you are recording them.

Filming Surveillance Officers

If police officers are carrying out surveillance, their safety and well-being will be considered as being a priority. This is a simple matter of security due to the highly dangerous covert work that they do.

Therefore, if you are seen filming surveillance officers, it is likely that the police will be able to exercise their powers to either order that you stop recording or alternatively confiscate your phone.

Evidence of a Crime Being Committed

The police may also attempt to confiscate your phone if they believe that it has evidence showing the commission of a crime.

Section 29(2)(a) of the Police Powers and Responsibilities Act  states that the Queensland police can seize anything from a person “that may provide evidence of the commission of an offence”. However, before they exercise this power, they need to reasonably suspect that it is necessary to search that person without a search warrant.

The above law therefore does not give the police random powers to confiscate a mobile phone, even if they believe it has evidence of a crime being committed.

What to Do If Challenged by The Police

Many people (including police officers) assume that you cannot record someone in public unless you have their permission.

If the police approach you and asked you to stop filming them, you should politely tell them that you are not getting in their way, but you will keep recording.

If they continue challenging to challenge you, tell them that you would like to contact your lawyer for legal advice.

Also, you should attempt to upload the footage to a secure online storage service such as Dropbox. This will ensure that your recordings are safe, even if the police delete them from your phone.


Don’t Get Legal Advice from Google

In today’s digital age, it is normal to turn to the Internet to find answers for our everyday problems.

What is the weather forecast? Check Google.

How to make banana bread? Check Google.

Who won the last season of The Bachelor? Check Google.

There is no denying that the Internet is an incredible source of information with information on almost any topic imaginable.  It is a valuable resource and we always recommend that people who face criminal charges do some basic research to better understand their situation.

It is however important to understand that there is a lot of false information on the Internet or information that might appear to be relevant to you but is not. This can have serious consequences if you make life-changing decisions based on this potentially incorrect information.

Below, we look at some of the main reasons why you shouldn’t get legal advice from Google.


Outdated Information 

Laws are constantly changing.

The Government may decide that a new criminal offence should be in place, so they create a new law. Or, it may increase the penalty for an existing criminal offence to reflect the seriousness of the offence.

These changes can literally happen overnight.

Therefore, unless a website is constantly being checked and updated, it is highly possible that the information on that site is outdated, especially when it comes to websites displaying legal information.

If you are researching your criminal charges online, make sure that you check the date when the article was published.

For the most current legislation, you can visit the Queensland Government Legislation site which will always be a reliable source.


Different Places = Different Laws

Each country has its own unique local laws which usually do not apply anywhere else in the world. If a country is made up of different States, they will usually have their own individual laws as well.

In Australia, each State and Territory has its own set of laws that, although similar, are often different to the others. This means that the laws in New South Wales are not the same as the laws in Queensland and vice-versa.

This can cause serious problems if you are doing legal research about your case without first checking which jurisdiction applies. If you read that you will receive a particular punishment in New South Wales for drink-driving, you may be shocked when you receive a completely different outcome because you’re actually appearing in court in Queensland.

Therefore, the best thing that you can do is contact a criminal lawyer from the State or Territory where you will be appearing in court.


Beware The “Hard Sell”

It is an unfortunate reality that some lawyers are more interested in getting your business than providing you with genuine advice.

You can tell who these lawyers are when you visit their website and it gives the impression that you face a jail sentence no matter what offence you have been charged with – and only they can keep you out of jail.

They use fear and intimidation to convince you to hire them and they do this by presenting biased information.

If you’re facing criminal charges, you need to hear the truth about your case. Therefore, you should always look at a website and ask yourself whether it appears to present the information in a clear, unbiased way.

If you are in doubt, you should contact a lawyer directly so that you can explain your case in detail and then receive personalised advice.

The Internet is a goldmine of information, but it can also be a minefield if you don’t tread carefully. We certainly recommend that you spend some time researching your case online, but you should not just rely on Google for legal advice.

The best thing you can do is to speak with an experienced criminal lawyer. This will ensure that you receive legal advice that is current and that applies to your personal situation.


Legal Aid for Traffic Offences

If you have been charged with a traffic offence in Queensland, you potentially face serious consequences. These could range from a lengthy licence disqualification to actual imprisonment. It is therefore important that you seek legal advice to ensure that your rights are protected and that you receive the correct outcome.

The best thing that you can do is to hire a lawyer to represent you throughout your case. An experienced traffic lawyer will know the laws and the procedures to ensure that you get the best results.

Sometimes, however, a person simply cannot come up with the funds needed to hire a private lawyer. In such situations, the Queensland Government can provide assistance through Legal Aid Queensland which will cover the fees for a lawyer to represent you in court for free.

Legal Aid funding is not automatically granted though. Legal Aid Queensland will only grant funding to certain applicants and its decision will be based on several different factors. The most important factors it will consider are:

  1. The type of case that a person needs assistance with; and
  2. The applicant’s financial circumstances.


What Cases do Legal Aid Queensland Fund?

Legal Aid Queensland can provide funding for a wide range of cases, including family law and civil law cases.

Relevantly, Legal Aid Queensland also provide funding for criminal law matters including traffic offences such as drink-driving, drug-driving and unlicensed driving.

Therefore, a private lawyer can be funded by Legal Aid Queensland to represent you in court for traffic offences.

This does not however mean that all traffic offences are covered by Legal Aid. In fact, they have a specific policy which states that “legal assistance is not available for minor traffic prosecutions”.

Therefore to be eligible for legal aid funding for a traffic offence, you need to be able to show that you face a real likelihood of being sentenced to actual jail for the first time or, if not your first time, for a period of six months or longer.

As a result, most people who have been charged with a traffic offence in Queensland will not be eligible for Legal Aid funding since they will not face imprisonment.


Are You Financially Eligible for Funding?

If you have been charged with traffic offences and you face the prospect of an actual jail sentence, the next step is to review your financial circumstances.

Legal Aid Queensland have two tests that they apply to examine a person’s financial circumstances:

  1. The Income Test; and
  2. The Assets Test.


The Income Test

Applicants for Legal Aid are required to disclose their income from all available sources, including salaries, income from insurance payouts, child support payments and rental income from investment properties.

Legal Aid Queensland will then consider your total income along with whether you are married and/or have children. If your income exceeds the allowable limit, your application for funding will ordinarily be denied.

The Assets Test

Similarly, you will need to disclose all the assets you own including real estate, cash and vehicles. Funding may still be granted if your assets exceed certain amounts, but you will be expected to contribute an amount towards the legal fees.

There are special conditions and exceptions that apply to the assets test. For example, certain amounts of assets are not included in the calculation of a person’s assets. A person’s age can also have an impact on the assets test.

What If Your Application is Refused?

If your application for Legal Aid funding is refused, you can appeal the decision. Legal Aid Queensland will then carry out an “internal review” to decide whether the refusal was appropriate.

If the internal review decides that the refusal was appropriate, you can then request an “external review”. An External Review Officer will go through the application to decide whether it should have been granted or not.

If all of these options are unsuccessful, the decision is final and you will not receive financial assistance from Legal Aid Queensland.

There are however other community-based legal organisations that may be able to help. They can provide you with free legal advice about your case but will not be able to provide representation.

If you think that you may be eligible for Legal Aid funding, we are a Legal Aid Queensland preferred supplier which means that we can help. Contact us now so that we can discuss how we can assist you.

Going to Jail for Drink Driving Offences

It is well known that drink driving in Queensland is a serious offence. The police are constantly issuing warnings about the dangers to the community of driving under the influence of alcohol and drivers are taught right from the beginning that it is an offence to drive over the blood alcohol limit.

Despite this, thousands of Queenslanders are still caught drink driving after they fail a breath test when required by a police officer.

In this situation, it is not surprising that their first concern is what punishment they will receive and whether they are likely to go to jail.

This article will outline what the Queensland laws are when it comes to drink driving and going to jail.

Can You Go To Jail for Drink Driving?

The law is very clear that it is possible to go to jail for a drink driving offence. For example, the penalty for a “high range” (0.15% or above) DUI charge is a fine of up to 28 penalty units or imprisonment for a term not exceeding 9 months. A lower range offence can lead to a prison sentence of up to 3 months.

In more serious cases where a driver already has previous history of drink driving, the maximum possible jail sentence is increased to 1 year.

Is Jail Mandatory?

In most cases, the court will have the power to decide whether a person should be given a prison sentence for drink driving. Instead of sending someone to jail, the court might impose a fine or order that the offender complete a community based order such as probation.

However, a jail sentence is mandatory in some specific situations.

Two Previous Offences – Same Type

A court must impose a jail sentence if a person is convicted of a high range drink driving offence and, in the five years before they were convicted of that offence, they were also convicted of two previous offences of:

  • High range drink driving; or
  • Any offence involving a motor vehicle if the case was dealt with in the District or Supreme Court; or
  • Dangerous driving if the case was dealt with in the Magistrates Court.

Example 1: John pleads guilty to drink driving with an alcohol reading of 0.158%. Within the last five years, he has two convictions for the same offence. In this case, John would be given a mandatory jail sentence.

Example 2: Jane pleads guilty to drink driving with an alcohol reading 0.172%. Within the last five years, she has one conviction for a high range DUI offence and one conviction for a low range DUI offence. Here, jail would not be mandatory (but could still be a possible outcome).

Two Previous Offences – Different Types

A prison sentence must also be imposed if a person is convicted of a high range drink driving offence and they have previous history within the last five years of:

  • High range drink driving and any offence involving a motor vehicle if the case was dealt with in the District or Supreme Court; or
  • High range drink driving and dangerous driving if the case was dealt with in the Magistrates Court; or
  • Any offence involving a motor vehicle if the case was dealt with in the District or Supreme Court and dangerous driving if the case was dealt with in the Magistrates Court.

Example 1: Mary pleads guilty to a high range offence and, in the last five years, has a District Court conviction for a robbery charge involving a getaway vehicle and also a dangerous driving charge that was finalised in the Magistrates Court. Mary would receive a jail sentence for the most recent DUI offence.

Example 2: Mike pleads guilty to a high range offence. In the last five years, his only history is a conviction for a single dangerous operation charge that was dealt with in the Magistrates Court. He would not automatically receive a prison sentence for the DUI offence.

How To Avoid Actual Jail

Even though jail is mandatory in some cases, it does not mean that you must actually go to jail. The law simply states that a jail sentence must serve some, or all, of your punishment.

There are various forms of prison sentences. The most commonly understood form is where a person has to actually serve time in a jail. However, a prison sentence can also be “wholly suspended” or a person can be given granted “immediate parole”. In both of these situations, the convicted person will receive a jail sentence but will not need to serve any actual time in custody.

To give yourself the best chance of avoiding going to jail, you need to be extremely well-prepared for court. This might involve you attending a safe driving program, obtaining some glowing character references or meeting with a psychologist.

There is definitely a risk that you might go to jail for a drink driving offence but it’s not a guaranteed outcome. If you think that you are facing a jail sentence, we strongly recommend that you contact us immediately to discuss how we can help.

Driving with Pets in Queensland

It is no secret that Queenslanders love their pets. In fact, around 37% of Queensland households own one or more dogs and about 26% own one or more cats. Many more people own fish, birds and other animals.

Queenslanders also love their car trips, whether it’s just to their local supermarket or on a long road trip to Sydney. It’s therefore no surprise that many drivers want to bring their pets along for the ride.

But do you know what laws apply to you if you have your pets in your car while driving? Do you know how to keep your pet safe while they are in your car? Read on to find out all the answers.

Driving With Pets On Your Lap

It’s not uncommon for drivers to see other drivers driving with their pets (usually dogs) sitting on their laps.

This is actually an offence under section 297(1A) of the Queensland Road Rules which states that “a driver must not drive a vehicle if a person or an animal is in the driver’s lap”. Therefore, it doesn’t matter whether it’s your Great Dane or your goldfish in a small bowl – it is against the law in Queensland to drive with it on your lap.

This offence is punishable by a fine of up to 20 penalty units which is more than $2,000.

Restraining Pets In Your Car

Many people assume that it is a legal requirement to restrain animals when they’re being driven. Surprisingly, there is in fact no law in Queensland that states you must restrain your pet when you’re travelling with them in your car.

However just because you don’t legally need to restrain your pet, it is still strongly recommended that you do it anyway.

Firstly, you can be charged with an offence if the animal interferes with your driving in any way. For example, your pet dog might jump onto your lap causing you to be distracted. If this happens and you cause an accident, you could be charged with careless driving or even dangerous driving.

Secondly, restraining your pet is important for its health and safety as there is a very real risk of your unrestrained animal being hurt or killed. In Australia, more than 5,000 pets are injured or killed every year as a result of road accidents. Therefore, if you are in an accident or if you are forced to brake suddenly, a properly fitted restraint may help to prevent your pet from serious injuries.

Driving With Pets In The Back Of A Ute

You are legally allowed to drive with pets in your ute tray as long as they are properly restrained. This is especially important due to the extra risks that pets in utes face. These risks include:

  • Falling over the side of the ute onto the road;
  • Falling over the edge and choking on their leash; and
  • Exposure to extreme weather elements such as heat.

It is also a law requiring that all loads in the back of a ute be properly secured and animals in utes are considered a “load”.

How To Restrain Your Pet

The most appropriate way to restrain your pet will obviously depend on the animal you’re transporting. Your best option is to speak with your local pet shop so that you can receive proper advice for your pet. Some of the options that may be available to you include car harnesses and pet carriers.

If you have a ute, your best option is likely to be an enclosed cage that is big enough for your pet to move around in and covered for shelter.

You should also always try to restrain your pet in the back seats instead of the front passenger seat. Most cars nowadays have airbags in the front passenger seats which could cause serious injury to your pet if activated following an accident.

Lastly, be careful about driving with windows that are too wide open. You should ensure your windows are closed enough to avoid any chance of your pet jumping out.

Driving with pets can be a fun and rewarding experience but make sure you follow the above tips to avoid your trip becoming a disaster.