Although not the most serious charges arising out of misusing a motor vehicle, both of these types of offences carry a debilitating consequence of being convicted: namely, that you are usually disqualified from holding a driver’s license. It is so significant that superior courts, like the New South Wales Court of Criminal Appeal have recognized that:
“… it can have a devastating effect upon a person’s ability to derive income and to function appropriately within the community…”
So, in my view, every effort must firstly be put into defeating the charge—if that can be done.
Defences
A good example of a seldom used but strong legal defence to such offending is that the driver believed they were operating a vehicle with an intoxicant in their blood.
In the case of NSW Police v Carrall [2016] NSWLC 4 the driver claimed the last time he had ingested cannabis was 9 days prior to interception, and so it was ultimately accepted that when he drove, he honestly and reasonably held the view he did not have any cannabis in his system. This acquittal would have spared him a potential minimum period of disqualification of at least 3 months.
That is an example of a common law defence, but the legislation of both states still allows for technical defences to be mounted. For example, in the case of Zwann-Ward v Barran [2005] QDC 376, the driver was charged with failing to supply a breath specimen. His counter to that was he was so anxious and could not help but breathe through his nose. Although this might seem absurd, when carefully crafted, it fit the legislative defence in the Act. And so, he was acquitted.
Sentencing
But if the charge cannot be defeated, then the focus shifts to removing a disqualification from the types of punishment that can properly be imposed. For example, in the case of R v Raffaghello [2019] NSWDC 624, even though the driver had previously been convicted and disqualified for a mid-range drink driving offence, the court accepted that his current drink drive offending was minor and did not fit his current character. Accordingly, the court was persuaded not to take his driver’s license.
There are, however, times when a disqualification cannot be avoided. In these cases, real care must be taken to ensure that only the matters which permissibly worsen the offending are alleged against the driver.
For example, in the case of Faulker v Morris [2010] QDC 33, the charged driver had previously been convicted of a similar drink driving offence within the previous 5 years. The law, though, only allows that conviction to worsen the punishment be imposed if it is placed on a special notice and served on the driver prior to him being dealt with at court.
The police failed to do this and consequently his previous conviction was not allowed to worsen the punishment he received, which wound up saving him 8 months of disqualification. Regrettably, I have seen many lawyers fail to identity this simple issue when pleading out a client’s case.
Will a conviction be recorded?
In New South Wales, the law prohibits a driver being disqualified if a conviction is not recorded. In Queensland, the law had been that convictions were habitually recorded for traffic matters, because they were seen differently from criminal charges. This has all changed now, and as was amply demonstrated in the case of Wilson v The Commissioner of Police [2022] QDC 15, a court can refrain from recording a conviction for drink or drug driving if there is evidence that the consequence is harmful to a driver’s employment.
Disqualified Driving
Whilst it is unusual to see a first offender imprisoned for this type of offence, it is not out of the question for that to happen – see Rogers v Harding & Peel [2007] QDC 112. Given that almost all charges of this kind result in the driver pleading guilty, in my view, great care must be taken to deal with each of the matters that will influence the sentencing court. In Queensland some of those are reflected in the offence creating provision itself and must be addressed or a court is not required to take any into account – see Johnstone v Commissioner of Police [2019] QDC 109. But many lawyers forget that the ordinary sentencing considerations also apply, most notably the principle that even for this offence a sentence of imprisonment should still be considered to be a sentence of last resort. In the case of Prew v Queensland Police Service [2012] QDC 178, the appeal court found that the original sentencing court failed to recognize that and it led to the driver being imprisoned when they shouldn’t have been.
New South Wales matters require the same approach, and whilst (like Queensland) a driver cannot raise as a defence to the charge that they didn’t know they had been disqualified, in that State a drivers lack of knowledge about the fact they were disqualified is relevant to whether they should be disqualified or not – see DPP v Kailah [2008] NSWSC 752. That means that a competent criminal lawyer should focus on finding evidence to demonstrate that the driver didn’t know they were disqualified because it can save them many months off the road.
The law as it relates to drink and drug driving is complex. It involves everything from work licenses to interlock devices. These are just a few examples of cases where an experienced criminal lawyer has provided a result that has spared the driver the weighty complications that result from a conviction for drink or drug driving. However, there’s a lot more to it than just that—for more assistance, don’t hesitate to contact me on (07) 5619 6860 or 0409 273 430