In Queensland, courts are typically cautious when it comes to accepting defences for drink driving offences, especially those involving high range readings. This is largely because if defences were freely accepted, nearly every person charged would attempt to use one. For this reason, most drink driving matters are settled without proceeding to trial. Often, the practical approach is to engage a traffic lawyer who can negotiate with the prosecution, aiming to either reduce the charges or have them dismissed where possible.

While there are only a few defences legally available in drink driving cases, they are quite restricted and only relevant to specific scenarios. As mentioned earlier, these defences don’t apply broadly and must meet very particular criteria. If you’re thinking about contesting a drink driving charge, we strongly recommend obtaining legal advice, contact us on 07 3999 8661 to arrange a free consultation.

Below are some defences that may apply in drink driving cases:

Not ‘in charge’ of the vehicle

If you didn’t have the ability to control or operate the vehicle at the time of the alleged offence — for example, if you were lying in the backseat or didn’t have access to your keys — it could be argued that you weren’t technically ‘in charge’ of the vehicle.

Extraordinary emergency

This defence is only accepted in rare and extreme cases. It may apply if you were responding to a sudden and serious emergency, where a reasonable person in your position would have also driven over the limit to avoid greater harm. The circumstances must be genuinely exceptional for this defence to succeed.

Involuntary intoxication

You might be able to claim this defence if your high BAC resulted from being unknowingly drugged or having your drinks spiked. However, this is very difficult to prove and usually requires strong supporting evidence, such as CCTV footage and witness accounts.

Three hour limit

Queensland law requires police to perform a breath or blood test within three hours of the alleged drink driving incident. If testing is done outside that window, the results may be inadmissible in court. This defence is highly technical and depends on precise timelines and the prosecution’s evidence.

If your BAC is between 0.05% and 0.099% you will face several legal penalties, even if it’s your first offence. Once charged, your driver’s licence will be suspended for a period of 24 hours.

Below, we’ll break down the different types of penalties that can apply for low range drink driving. However, in most cases, the outcome will include fines, disqualification periods and imprisonment for repeat offenders.

Low range drink driving (first offence)

For a first time low range drink driving offence in the last five years, you will generally receive a fine and a mandatory licence disqualification period prescribed by law.

What is the maximum penalty you can get for low range drink driving (first offence) in QLD?

The maximum penalty for low range drink driving is a fine up to $2258 or imprisonment up to three months.

There is also a mandatory minimum disqualification period ranging from 1 to 9 months. The exact disqualification period is determined by the Magistrate’s discretion, based on the circumstances of the case.

Low range drink driving – second and subsequent offences

If you’re charged with a second or subsequent low range drink driving offences within 5 years, the disqualification periods increase, and you will generally face a higher fine than your first offence.

The maximum penalty for low range drink driving is a fine up to $2258 or imprisonment up to three months.

When the Magistrate decides on a penalty for a drink driving offence, they will generally weigh up several important factors in determining an appropriate sentence. They will generally focus on these factors:

• The BAC reading and whether it is on the higher or lower end of the scale

• Traffic history

• Criminal history

• Whether a relevant drug was present

• If there was a real or potential danger to the public, based on the circumstances of the case

As a starting point, the higher your BAC reading the more at risk your driving can pose to public safety. However, the Magistrate must weigh up the factors if there was a real or potential danger to the public, these factors help the court determine the appropriate penalty that is fair and proportionate to the offence committed.