Drink Driving Defences QLD

In Queensland, drink driving (DUI) is generally treated as a strict liability offence. This means that once police evidence shows a driver was in charge of a vehicle with a Blood Alcohol Concentration (BAC) above the legal limit, the burden shifts to the defendant to prove a valid defence.

However, while challenging a drink driving charge can be difficult, it is not impossible. Below, our Queensland Traffic Lawyers outline the most recognised Drink Driving Defences QLD available under the Transport Operations (Road Use Management) Act 1995 (TORUM) and the Criminal Code 1899 (Qld).

Conclusiveness of Breath Analysis Certificates

Under section 80 of the TORUM Act, a certificate from an authorised breath analysis is considered conclusive evidence of BAC. However, this can be challenged if the device was defective, incorrectly operated, or the testing process was flawed. Sections 80(15H), 80(16G), and 80(15B–16E) allow for defences based on improper operation or invalid laboratory results.

Defective Breathalyzer Equipment

If a defendant believes the breathalyser was defective or misused, written notice must be given to the prosecution at least 2 weeks before the hearing. To succeed, it must be proven that the device or its operation did not comply with police procedural standards or manufacturer calibration requirements. Technical expert testimony often strengthens this defence.

Unlawful Police Procedure & Operation

If the roadside test was unlawfully administered, the resulting evidence may still be admissible. However, under the High Court’s decision in Bunning v Cross (1978) 141 CLR 54, courts retain discretion to exclude unlawfully obtained evidence where it would be unfair or contrary to justice. This discretion forms the basis for several successful DUI defences in QLD courts.

The “3 Hour Rule”

Sections 80(15G) and 80(16FA) of the TORUM Act establish what is known as the 3 Hour Rule. If a breath or blood sample is taken within three hours of the alleged offence, the reading is deemed to reflect the BAC at the time of driving. However, if alcohol was consumed after driving but before testing, this defence can be raised to show the result does not represent the driver’s BAC at the relevant time.

Criminal & DUI Defences QLD

While DUI is a strict liability offence, the Criminal Code 1899 (Qld) provides additional general defences that may apply in rare cases, including:

• Section 23 – Accident
• Section 24 – Mistake of Fact (excluded as a DUI defence)
• Section 25 – Extraordinary Emergency
• Section 27 – Insanity
• Section 28 – Involuntary Intoxication
• Section 31 – Compulsion

These can sometimes mitigate liability or reduce sentencing when exceptional circumstances apply under section 79(12) TORUM.

Repeat DUI Offenders

Under section 79(1C) TORUM, repeat offenders with two or more convictions within five years face mandatory imprisonment. This 5-year period is measured from the date of conviction, not the date of the offence. Sentencing under section 147 of the Penalties and Sentences Act 1992 (Qld) allows for suspended or wholly suspended imprisonment in some cases.

Contact Our QLD Drink Driving Lawyers

If you believe your matter involves one of the above drink driving defences, you should seek immediate legal advice. Our experienced Traffic Law team can assess your situation and represent you across all Queensland Magistrates Courts.

Contact Boorman Lawyers Today