Last updated 29 August 2016 This chapter is currently under review.
An immediate 24-hour suspension from driving applies to any person charged with driving while under the influence of alcohol or a drug or over the legal alcohol limit, or who has failed to provide a specimen of breath or blood for analysis (s 80(22AA) Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act)). It is an offence to drive during this period (s 80(22D) TORUM Act). A notice to that effect will be served upon the person, together with a notice to appear or summons to appear in court. A person will very rarely be arrested for drink-driving offences unless a more serious offence is also being charged. However, a person cannot resist being detained or transported to a police station or hospital for the purpose of a breath or blood test.
A licence may also be suspended in some instances where a person accumulates a certain number of demerit points (e.g. for an offence of speeding more than 40 km per hour over the limit (pt 11–12 Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld)) or under the State Penalties Enforcement Act 1999 (Qld) for non-payment of fines).
Suspension until charge is finalised
In some circumstances, a person’s licence is suspended immediately upon being charged with an offence, and the suspension continues until the charge has been finalised by the court or the court issues a replacement licence (s 79B TORUM Act). This applies where the person is charged with:
- driving a motor vehicle while under the influence of alcohol and an analysis certificate has been given to the person (does not apply to under the influence of a drug)
- failing to provide a specimen of breath, blood or saliva
- driving while over the no-alcohol limit, over the general alcohol limit or while a relevant drug is present, and that charge has arisen either after the person has earlier been charged with any one of those offences and the earlier charge has not been finalised, or while the person is the holder of a replacement licence issued under s 79E of the TORUM Act
- dangerous operation of a vehicle while adversely affected by alcohol.
A notice of the suspension must be given to the person (s 79D TORUM Act). It is an offence of unlicensed driving to drive while the licence is suspended, and a conviction for this offence results in disqualification from holding a licence for a minimum of two years (s 78(3)(i) TORUM Act).
When a court disqualifies a person from driving, every driver licence held by that person is deemed to be cancelled from the date of disqualification (s 127 TORUM Act). Once the disqualification period has ended, that person must apply for a new licence or licences to drive at the Department of Transport and Main Roads (Transport Department). It is an offence to apply for a licence when still disqualified.
A licence may also be cancelled administratively by an accumulation of demerit points. Cancellation means that the licence is completely invalid and the person must apply again for a new licence when the cancellation period expires.
When a driver is convicted of a drink driving offence, they are automatically disqualified from holding or obtaining a driver licence.
The period of disqualification in any given case will be decided by the court within the statutory minimums and maximums. The factors that the court will look at include the blood alcohol concentration, the manner of driving, any mitigating factors as to the context for the driving, the person’s character and previous driving record, the person’s need for a licence and the danger to other road users.
Section 187 of the Penalties and Sentences Act 1992 (Qld) provides power for the court to order disqualification of a licence where an offender is convicted of any offence in connection with or arising out of the driving of a motor vehicle. This will occur if the court is satisfied that the person should be prohibited from driving in the interests of the public, having regard to the nature of the offence or the circumstances in which it was committed. Even if a person has been acquitted of such an offence, either on indictment or summarily, the trial judge or magistrate may still order disqualification if they consider it is in the public interest (ss 89–90 TORUM Act).
Absolute disqualification and applying for removal of disqualification
In some circumstances, a person may be disqualified absolutely from driving or for a specified period of time longer than two years. This does not mean that the person may never again obtain a driver licence or even that the person must wait the entire period where it exceeds two years. At any time after two years from the date of disqualification (whether it be an absolute disqualification of some other period of disqualification in excess of two years), they may apply for the removal of the disqualification to any court of similar jurisdiction to the court which ordered the disqualification (s 131(2) TORUM Act).
The court has a wide discretion in the matter, but it is required to have regard to the character of the applicant, their conduct since the disqualification, the nature of the offence and any other circumstances of the case including the person’s traffic history. These issues must be addressed by affidavit material, filed and served by the applicant in support of the application, and the witnesses must be available for cross-examination by police if required. Police must be given notice of an application in order to also make relevant enquiries. If the court refuses the application, the person cannot re-apply for at least one year. A Removal of Disqualification kit can be obtained at the courts or from the Legal Aid Queensland offices or website.
As an alternative, any person who was disqualified absolutely prior to 13 March 2002 for an offence of unlicensed driving (including disqualified driving) may apply after five years directly to the Department of Transport and Main Roads (Transport Department) for removal of the disqualification, rather than applying under s 131(2) of the TORUM Act to the court. If the application is refused, the person cannot re-apply to the Transport Department or to a court for at least one year.
The disqualification is cumulative with any other disqualifications for other offences of this type that were committed at a different time (s 90B TORUM Act), and where the person is disqualified from driving for any of the following offences:
- drink or drug driving
- failure to provide a specimen for analysis
- driving in breach of the conditions of a restricted licence or a replacement licence
- dangerous operation while adversely affected by an intoxicating substance.
Further, if any other offence (e.g. drink or drug driving offence, fail-to-provide offence or a dangerous operation while adversely affected offence) occurs when a person is unlicensed or disqualified, then any disqualification imposed for the unlicensed or disqualified driving offence must also be made cumulative with the disqualification for this other offence (s 90C TORUM Act).
It is unclear whether cumulative periods amounting in total to more than two years can be the subject of an application (s 131(2) TORUM Act) to remove the disqualification after two years.