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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.

 

 

Is It Worth Fighting a Speeding Fine?

If there is one thing that seems to infuriate Queensland drivers more than anything else, it’s receiving a speeding fine. Whether it’s being pulled over on the side of the road by a police officer with a handheld radar or opening up a letter containing a speeding fine, no one likes finding themselves in this position.

Unsurprisingly, we get a lot of people contacting us to find out whether it’s worth fighting their speeding fine and, if so, what’s actually involved with taking it to court.

Our advice about whether it’s worth fighting a speeding fine usually depends on each person’s reasons for wanting to fight it in the first place. For some people, they’re at risk of losing their driver’s licence due to demerit points or because of a high-speed offence (more than 40km/hr above the speed limit). For others, they are worried about how they will pay the fine. Lastly, there are those who simply want to fight the fine out of principle.

We therefore thought that it would be helpful to review some of the factors you should consider when deciding whether to fight a speeding fine or whether you should simply pay the fine and put it behind you.

Are You Actually Guilty?

The first issue (and arguably the most important) is whether you are actually guilty of the speeding offence or not. Sometimes, it’s difficult to know the answer to this. For example, you might receive the fine weeks after the offence was allegedly committed and there may be multiple vehicles in the photo.

In other cases, you know you’ve done the wrong thing and there’s no question about whether you were exceeding the speed limit or not.

It is important to know whether you are actually guilty or not because this may determine the strength of the police case against you. If you know that you were not speeding, the police case will likely be a lot weaker and therefore easier to contest. However if you know that you were in fact speeding, it will be much harder to fight the fine as the evidence against you will be much stronger.

It is however also important to understand that the police case against you might not be that strong, even if you think that you actually were speeding. The police are required to prove that you were speeding and if they do not have all the required evidence, their case against you will be significantly weakened.

It is recommended that you seek legal advice to discuss whether you are likely to be found guilty or not guilty.

It Takes Time

Many people do not realise just how much time it can take to fight a speeding fine in court. In reality, you should allow for three or four days (or more) actually in court and the entire process can take many months from start to finish.

After you indicate that you want to take the speeding fine to court, you will be given an initial court date. If you have a lawyer representing you, you will receive priority at court and your case will be heard quite quickly. Otherwise, you will need to wait in the courtroom until your name is called. At that point, you will need to confirm that you want to plead not guilty and proceed to trial.

There will likely be a few court appearances after your initial court date so that you and the police can update the magistrate about how the case is proceeding. Again, you may be waiting for most of the day for your case to be heard.

After perhaps four or five months, you will appear in court for your trial. There will likely be several trials listed for the same day and in the same court and you might not get priority (people represented by lawyers almost always get priority). As a result, your trial might only take place in the afternoon or, even worse, it may be adjourned to another day if the court does not have the time to hear your case.

It is therefore important that you consider the impact of this on your family and/or employment.

You May Receive a Worse Punishment

When you receive a speeding fine, the fine itself will indicate how much you will need to pay if you accept the fine.

However if you take the speeding fine to court and you are unsuccessful in fighting it, the magistrate is not required to impose the same fine as what was written on the ticket. In fact, the magistrate has the power to impose a fine exceeding $4,000 plus court costs.

In addition, the magistrate also has the power under s187 Penalties and Sentences Act to disqualify your driver’s licence immediately at court. Although this would likely only occur for particularly serious offences, the magistrate may also decide that it’s appropriate based on your prior traffic or criminal history.

Speeding Fine Trials are Complex

Speeding fine trials can be surprisingly difficult. Often, they come down to technical arguments which relate to whether a particular radar device was working properly or not. Other times, the trials will be decided according to complex legal arguments where it will be you versus experienced police prosecutors who may have spent years training for trials just like yours.

For this reason, we strongly recommend that you seek legal advice before contesting a speeding fine, even if you decide to fight the ticket in court yourself.

Conclusion

As can be seen, there are many different things to consider when deciding whether you should fight a speeding fine or not. You are the only person who can decide whether it’s actually worth it or not.

If you are at risk of losing your driver’s licence, there may be other options available and we can discuss these with you. For example, you may be able to apply for a special hardship licence which will allow you to continue driving despite being suspended due to a speeding fine.

Hopefully this guide has assisted you with making a decision about whether you want to fight a speeding fine. If you have any further questions, contact us now to discuss how we can help.

Drink Driving + DUI Queensland: The Ultimate Guide (2019)

Drink driving is a very serious offence in Queensland and can lead to:

  • Significant fines;
  • Loss of your driver’s licence;
  • Termination of employment; and
  • Imprisonment.

Despite this, Queenslanders are still being caught drink driving every day.

Often, people are charged with a drink driving offence simply because they did not know or understand Queensland’s DUI laws.

This is why we have prepared this article: The Ultimate Guide to Drink Driving + DUI Laws in Queensland.

If you have a question about drink driving or DUI laws in Queensland, we hope that we have covered it here.

If not, contact the team at Harper Finch Lawyers to speak with an expert drink driving and DUI lawyer.

Continue reading “Drink Driving + DUI Queensland: The Ultimate Guide (2019)”

Can You Drink Alcohol While Driving?

Everyone knows that drink driving is an offence throughout Australia and that the consequences of committing a drink driving offence can be severe.

However have you ever wondered whether you are legally allowed to drink alcohol while driving, as long as you are within the legal alcohol limit?

Let’s explore the laws of a few different States to find out more.

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QLD Government Proposes Major Changes to DUI Laws

The Queensland Government has recently released a discussion paper which proposes a number of significant changes to the current drink driving laws. If passed, these will have a significant impact on the penalties that are imposed on drink drivers.

Here, we examine the various proposals and how they will affect Queensland drivers.

Continue reading “QLD Government Proposes Major Changes to DUI Laws”

Drink driving a horse? You bet!

If you are going to be caught drink driving, it is probably safe to say that you will be either driving a car or riding a motorbike at the time. These are overwhelmingly the most common forms of transport being used when people are found drink driving. But does this mean that these are theonly forms of transport you can be caught drink driving? Absolutely not! 

 
The Transport Operations (Road Use Management) Act says that you can be charged with drink driving if you are operating a motor vehicle, tram, train or vessel. This therefore means that in addition to cars and motorbikes, you can be charged with drink driving trains, ships, ferries and any other type of motorised transport that moves on wheels.
 
However this Act then goes further to say that you can also be charged with drink driving a horse or other animal, as well as any non-motorised vehicle. This means that if you are found to be for example riding a horse with a blood alcohol concentration that exceeds the legal limit, you can be charged and convicted of drink driving. Similarly, you can be charged and convicted of drink driving a bicycle or a skateboard, as both of these forms of transport fall within the definition of a “vehicle”.
 
The maximum penalty for drink driving an animal or a non-motorised vehicle is $4,000 or 9 months imprisonment but generally does not involve any licence disqualification.
 
Many people are caught out by this law as they do not realise that the drink driving offence goes beyond cars and motorbikes. To make matters worse, this situation often arises after a person has had their car licence disqualified for drink driving and the person subsequently uses a bicycle to get around during the disqualification period. If they are caught drink driving the bicycle, they will be charged with their second drink driving offence which will increase any penalty they will receive.
 
The lesson to be learnt here is that if you need to go somewhere after a few drinks, your best options are to have someone else drive you or, if it is safe to do so, simply walk. 

Unlicensed Driving in Queensland

Unlicensed driving offences in Queensland

It is well known that a person needs to hold a driver’s licence in order to drive within Queensland. No licence = no driving. Despite this, thousands of people are still charged with the offence of unlicensed driving in Queensland every year.

Contrary to popular belief, it can in fact be quite easy to lose your licence as there are many ways that a person’s licence can be suspended or disqualified. The purpose of this article is to provide some information about the different ways that a person can be charged witih unlicensed driving.

 

REASONS WHY A PERSON MIGHT BE UNLICENSED

The simplest reason why a person may not have a licence is if they simply never obtained one. They may have applied and been refused for whatever reason or they may have simply never taken any steps to apply for a licence. In this case, they are not suspended or disqualified from holding a licence – they simply don’t have a licence.

Another common reason why drivers may not have a valid driver’s licence is if they forgot to renew their licence after it had expired. This happens often and it is usually a genuine mistake. For example, the driver may have moved house and simply forgotten to renew their address in time, meaning that they didn’t receive the renewal notice.

A person can also be driving while unlicensed because their licence was suspended. The most common reasons why licences are suspended are for failure to pay a SPER debt,  accumulating too many demerit points or if a person has committed a high-speed offence (driving more than 40km/hr over the speed limit).

Licences are also suspended following a charge for a drink driving or drug driving offence. For less serious offences, the licence will be suspended for a period of 24 hours whereas a charge for a more serious drink or drug driving will result in a person’s licence being immediately suspended until their charge is finalised.

If a person is convicted of an offence in court and they are disqualified from holding or obtaining a driver’s licence in Queensland, their licence is immediately cancelled. It is an offence to then drive while disqualified. Since the disqualification was imposed by a magistrate or judge, offences of disqualified driving are seen as ‘contempt of court’ and the penalties can be quite serious. For repeat offenders, it is not uncommon for jail sentences to be imposed.

 

PENALTIES FOR UNLICENSED DRIVING

There is a wide range of penalties that can be imposed if a person is convicted of unlicensed driving in Queensland. For the least serious unlicensed driving offences (such as forgetting to renew a licence), the penalty may be nothing more than a fine. For the more serious offences, a licence disqualification is mandatory in addition to a fine and the disqualification periods can range from 1 month to 5 years. It is also possible for drivers to be sent to jail if their traffic history is bad enough.

 

OUR ADVICE

Although it might be obvious, our first piece of advice is to always make sure that you are aware whether your licence is valid or not. It is no defence to say that you didn’t know that your licence was suspended.

If you are paying off any fines through SPER, make sure that your payments are being received and that they have your correct contact details.

Make sure that the Department of Transport also has your correct address, even if you don’t have any outstanding fines. You want to make sure that you receive any notices from the Department.

Finally, make sure you seek legal advice if you have any questions or if you have been charged with unlicensed driving. For most people, their driver’s licence is essential for their work and family requirements and therefore the loss of their licence can be catastrophic. At Harper Finch Lawyers, we are experts in helping our clients minimise penalties including disqualification periods so call us now if you need assistance.

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Why You Should See A Psychologist Before Court

psychologist_before_court_criminal_law_traffic_law_blog.jpgIf you have been charged with a serious traffic or criminal offence, you have probably spent a lot of time  already thinking about what you can do to improve your punishment if and when you are sentenced. For example, you may have gathered a handful of references from family and friends or you might have attended a defensive driving course.

But have you thought about seeing a psychologist before you go to court?

Even if you think that you do not need to see one, you might be surprised just how beneficial it can be – not just in court but in your life.

Read on to find out more about why you should see a psychologist.

Continue reading “Why You Should See A Psychologist Before Court”