Drink Driving Defences Qld: In this article assess the various difference legal defences which are available to drink driving offenders at law in Queensland. It must be noted that defending a drink driving offence can prove to be quite a difficult process most of the time BUT certainly not an impossibility, so it is definitely worth becoming aware of the available legal defences.

Drink Driving Defences QLD

In Queensland drink driving is considered a strict liability offence whereby the onus of proof is placed upon the defendant to prove that they are not guilty of the elements of drink driving. This can often be a difficult thing to prove when the Police are abale to present scientific evidence showing that you were in charge of a vehicle whilst having a positive blood alcohol concentration reading which is over the legal limit.

In saying this there are still a number of Drink Driving Defences Qld available which are worth exploring and potentially using if they fit your particular set of circumstances. We have listed the various Drink Driving Defences Qld below.

Conclusiveness of Breath Analysis Certificates

The conclusiveness of a certificate stating the result of an analysis might be negated by evidence that the breathalyser was defective or not effectively run (s 80(15H) TORUM Act). Likewise, the conclusiveness of certificates of saliva or blood analysis may be negated by proof that the laboratory test did not offer a correct result (s 80(16G) TORUM Act). In the case of a certificate stating that a person cannot supply a specimen of breath or blood, the certificate can be disproved by any means (ss 80(15B), 80(15F), 80(16E) TORUM Act).

Defective Breathalyzer Equipment

When a person plans to fight a charge on the basis that a breathalyzer was defective or not appropriately operated, or a saliva or blood test result was incorrect, written notice needs to be provided to the charging officer not less than 2 Week before the court hearing. To be successful with this Drink Driving Defence Qld it would need to be proven that the Police equipment or procedure was not used in accordance with relevant Queensland policing rules.

Unlawful Police Procedure & Operation

In accordance with the Courts, if a roadside breath or saliva test has actually been unlawfully administered, the result of this breath, saliva or blood analysis might still be utilized as evidence. However, a court does have discretion to reject such evidence since it was unlawfully acquired (Bunning v Cross (1978) 141 CLR 54).

3 Hour Rule

In some cases, an individual is not stopped by police while driving and, on returning home, consumes alcohol or drugs. Later, if a Police officer shows up and makes a presumption on reasonable grounds that the individual was the driver, they might ask them to take a breath or saliva test. If this is positive, the person might be taken to a police station for a breath, saliva or blood analysis test. The blood alcohol or drug concentration recorded will clearly not be the same as it would have been at the time of the alleged driving.

Despite this, under ss 80(15G) and 80(16FA) of the TORUM Act, the reading or result acquired at the later time is conclusive evidence of the existence of a relevant drug or the blood alcohol concentration of the individual (from the time of the driving to the time of analysis) if the sample was taken not more than 3 hours after the event of driving.

Criminal & DUI Defences QLD

With the exception of the defence of mistake of fact (s 24 Criminal Code Act 1899 (Qld) (Criminal Code)), the following criminal defences stated in the Criminal Code 1899 still apply and they include:

• section 23 for accident;
• section 25 for extraordinary emergency;
• section 27 for insanity;
• section 28 for involuntary intoxication; and
• section 31 for compulsion.

These abovementioned criminal defences may be applied in usually the most rare of circumstances to drink or drug driving offences (s 79( 12) TORUM Act).

Repeat DUI Offenders

If the driver has previously been found guilty of the same or comparable offenses within the previous 5 years, the penalties are increased. On a 3rd conviction for an offense of driving under the influence or a combination of other serious traffic offences within 5 years, a mandatory sentence of imprisonment will be enforced (s 79(1C) TORUM Act).

The 5 year duration is calculated in reverse from the "date of conviction" (the court date) not the date the offence was commissioned. Any suspension of the duration of jail time under s 147 of the Penalties and Sentences Act 1992 (Qld) might be ordered.

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