Last updated 29 August 2016 This chapter is currently under review.
Section 79 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act) outlines the main offences that may be committed by a person who drives, attempts to drive or is in charge of a motor vehicle after consuming liquor or drugs:
- driving while over the no-alcohol limit—it is an offence to drive with any alcohol content while:
- under 25 and not holding an open licence
- driving various special vehicles including a truck, bus, taxi, limousine, tow truck, pilot vehicle or driver training vehicle
- driving pursuant to a restricted licence or a replacement licence. For a first conviction, the maximum penalty is a fine of $1649.20 and/or three months imprisonment. In addition, the offender is disqualified from driving for at least one month (s 86(2)(f))
- driving while over the general alcohol limit—it is an offence to drive with a blood alcohol concentration of 0.05 but less than 0.15 (i.e. over the general alcohol limit but under the high alcohol limit). For a first conviction, the maximum penalty is a fine of $1649.20 and/or three months imprisonment. In addition, the offender is disqualified from driving for at least one month
- driving while under the influence—it is an offence to drive while under the influence of alcohol or any drug. With alcohol, a person is conclusively presumed to be under the influence if their blood alcohol concentration is 0.15 or more (i.e. more than 150 mg of alcohol in 100 mL of blood or 0.150 g of alcohol in 210 L of breath). For a first conviction, the fine is $3298.40 and/or nine months imprisonment. In addition, the offender is disqualified from driving for at least six months (s 86(1))
- driving while a relevant drug is present in the blood or saliva—it is an offence to drive while a relevant drug is present in the blood or saliva. Relevant drugs are delta-9-tetra-hydrocannabinol (cannabis), methylamphetamine (speed and ice) and 3,4-methylenedioxymethamphetamine (ecstasy) (reg 172 Traffic Regulation 1962 (Qld)). Any amount of drug detected is sufficient to constitute the offence. The penalties, including disqualification, are the same as for driving over the general alcohol limit (s 86(2)(f))
- failure to provide a breath specimen—it is an offence to fail to provide, upon request from police, a specimen of breath or saliva (s 80(5A)). The maximum penalty is a fine of $4712 and/or six months imprisonment. In addition, the offender is disqualified from driving for at least six months (s 80(11)(d)). It is a defence to this charge if a person has a medical certificate from a doctor stating that they are unable, because of an illness, to provide a specimen (s 80(5B)).
Whether or not a person is under the influence of drugs in their system is a triable issue. For example, if someone is found to have cannabis in their blood by virtue of a blood test, the level of cannabis and the length of time since cannabis use may determine whether the person would have been affected by the drug at the time of driving. Expert evidence of the scientific explanation for effects of any drug may become relevant.
For under-the-influence charges, drugs found in the person’s system need not be unlawful; prescription drugs may also affect driving. A combination of various drugs, with or without alcohol, may also render a person under the influence.
While the level of drug is relevant to whether a person is under the influence of the drug, the level is not relevant to a charge of driving while a relevant drug is present. It is for this reason that the ‘relevant drug is present’ offence only applies to blood and saliva, and does not apply to urine. Urine can show presence of some drugs long after any effects have worn off, whereas presence in blood or saliva indicates the drug is still active in the person’s system. Presently, only saliva tests are routinely carried out by police, who use a swab method to collect and test the saliva.
Being in charge of a vehicle
A conviction can result if someone is over the legal alcohol limit, under the influence of alcohol or a drug, or has a relevant drug present in their saliva or blood, even though they are not driving if they can be said to be in charge of the vehicle. For instance, any such person found asleep inside a vehicle may be convicted. According to s 79(6) of the TORUM Act, it is a defence to being in charge if it is proved beyond reasonable doubt that the person:
- had manifested an intention not to drive by either not being in the driving compartment at the time or by some action while outside the vehicle (e.g. having told others of their intention or giving the keys to another person)
- was not so affected by alcohol or drugs as to be incapable of understanding what they were doing or of forming an intention not to drive
- had parked the vehicle in a way that was not dangerous to other people or traffic
- had not been convicted in the last year of any alcohol-related or drug-related driving offence.
Bicycles and horses
It is also an offence to drive/ride any horse or other animal, or any other vehicle besides a motor-driven one while under the influence of liquor or a drug (s 79(7) TORUM Act). This includes bicycles. The offence is punishable by a maximum fine of $4712 or nine months imprisonment.