You may be charged with an offence and must go to court if you drink alcohol and drive a vehicle. You may also be breaking the law if you are 'in-charge' of a vehicle after you have been drinking alcohol, or if you don't blow into a breathalyser when the police ask you to.
Get legal advice if you have been caught drinking alcohol and driving a vehicle.
Am I breaking the law if I drink alcohol and drive a car or another vehicle?
The police use a breathalyser to find out if you have any alcohol in your breath. The breathalyser will show your blood alcohol concentration (BAC).
For some drivers, their BAC must be zero (0) to legally drive. You're breaking the law if you drive with any alcohol in your system and:
- you have a learner licence
- you have a provisional, probationary or restricted licence (for example, a ‘P’ licence)
- you have a class RE motorbike licence and you have held that licence for less than 12 months, or you are learning to ride a class R motorbike
- you drive a tractor or specially constructed vehicle
- you drive a truck, a bus, articulated vehicle, road train, a vehicle carrying dangerous goods, a tow truck, pilot vehicle, taxi, limousine or driving instructor vehicle
- you're unlicensed.
For all other drivers, if your BAC is 0.05% or more (referred to as the ‘general limit’), you are ‘over the limit’ and are breaking the law.
If the police believe that they have evidence that your ability to drive safely was affected by your BAC, you may be charged with driving or being 'in-charge' of a vehicle under the influence of liquor (alcohol).
If you have a BAC of 0.15% or more, this is automatically considered to be proof that you are under the influence of alcohol. In some situations, the police may be able to prove that person is under the influence, even if they don't have a BAC of 0.15% or more. Being charged with driving under the influence is a more serious charge than just being over the general alcohol limit.
Driving over the mid-range BAC
Mid-range offences are driving or being 'in-charge' of a vehicle with a BAC of 0.10% or more but less than 0.15%. This is more serious than just being over the general alcohol limit but less serious than being under the influence.
What is a 'vehicle'?
The definition of vehicle is very wide and includes:
- a motor vehicle
- a boat or jet ski
- all other means of transport that move on wheels including bicycles.
If you drive a motor vehicle when over the limit (no matter where you drive) you're breaking the law. For non-motorised vehicles, you're breaking the law if you're on the road when under the influence.
What if I've been drinking but I'm just sitting in the car and not driving?
You don't have to be driving the car or other vehicle to be breaking the law, if you are what the law calls 'in-charge' of the vehicle. If you're over the BAC limit for your type of licence and you try to start the vehicle or move it or are sitting in the front of the vehicle and have access to the keys and could, if you chose, drive the vehicle then you may be breaking the law.
If I've been drinking alcohol, can I go and 'sleep it off' in my car?
No, you can't sleep in the front compartment and even if you sleep in the back, you will have to prove you're not ‘in charge’ of the vehicle. Even if the police haven't seen you driving, just by being in the car with a BAC over the limit, you risk being charged with an offence.
I am going to court for drink driving, can I continue to drive until my court date?
Your license will immediately be suspended for at least the next 24 hours if the police stop you and you're 'over the limit'.
If you drive within that 24 hour period, even if you're just going back to where you left your car to drive it home, you're breaking the law. If you're still over the limit, you can be charged again for drink driving and with the more serious offence of driving while suspended. If when going back to your car you are under the limit, you still risk being charged with driving while suspended.
For some drink driving offences your licence is immediately suspended, not just for 24 hours, but until the charge is dealt with by the court. You're breaking the law if you drive any time before your court date. These offences include:
- Driving or being 'in-charge' of a motor vehicle with a BAC of 0.10% or more (mid-range) or under the influence.
- Not giving the police a breath specimen or allowing them to take blood for it to be analysed.
- A second drink driving offence while you still have a drink driving charge to be finalised in court.
Sometimes it's possible to get a special licence, called a Section 79E licence, allowing you to drive before the matter is dealt with by a court. Ask a lawyer if you may be eligible for this. You need to apply to the court for an order allowing you to drive until the matter is dealt with by the court. This option is only useful if pleading not guilty to the charge and you have legal advice that you’re likely to be found not guilty.
What can the police do if they pull me over or find me in a car?
The police may need you to:
- give your name and address
- show your driver's licence
- take a road-side breath test
- get a doctor to take blood from you for a blood test
- take a breath test at a police station.
It's an offence if you:
- Don't give your name and address.
- Refuse or don't take a breath test at the roadside (or other place) or at the police station if asked within 3 hours of you driving or being 'in-charge' of a motor vehicle. This is called failing to provide a breath specimen.
- Refuse to allow a blood test if requested within 3 hours of you driving or being 'in-charge' of a motor vehicle. You don't have any right to demand a blood test instead of a breath test unless you have a medical certificate showing that you're unable to supply a specimen of breath and this is given to the police at the time of the request.
The police don’t have to suspect you of being over the BAC limit for your type of licence for you to give a breath or blood specimen. These are commonly referred to as “random breath tests.”
In some situations, the police may need you to give a breath test even if you’ve not been found in a vehicle. They may ask for a sample if there’s a reasonable suspicion that you’ve been driving or ‘in-charge’ of a vehicle within the last 3 hours at the time of the request.
What happens when I go to court for drink driving?
You’ll always be disqualified from holding or getting a Queensland driver's licence if found guilty of driving or being ‘in-charge’ of a motor vehicle while over the BAC for your type of licence or failing to give a specimen of breath/saliva or blood for analysis. Your licence may be disqualified for failing to give a roadside specimen, but the Magistrate doesn’t have to disqualify your licence for that offence.
The period of disqualification may be longer depending on your BAC level, and any previous offences.
You should hand in your driver's licence to the Prosecutor at Court or to the Department of Transport because it will be cancelled when the disqualification order is made. It’s an offence to keep a cancelled driver’s licence. As well as having your licence disqualified, you may be fined. You may be jailed for very high BAC readings or repeat offences.
It’s considered a major offence if you’re convicted of driving under the influence or failing to give a breath/blood specimen for analysis. If you are convicted of 3 major offences within a 5-year period, then the court has no choice but to include jail as your penalty.
Queensland Traffic Offenders Program
Queensland Traffic Offenders Program is available to people pleading guilty to traffic offences, ranging from drink driving to disqualified driving to careless or reckless driving.
It aims to increase the participants understanding about their general responsibilities as drivers, and the safety risks to themselves and other drivers or passengers when disobeying traffic laws.
During sentencing, the Magistrate may consider any changes or attitude shown by the offender while participating in the program.
A fee applies, contact the program for more information.
Drink Driving Education Programmes
For drink driving related offences (including “in charge:") committed on or after 10 September 2021, you will have to complete a drink driving education programme before Department of Transport and Main Roads will issue you with a new driver licence after your disqualification has been completed.
Alcohol Ignition Interlocks
For some offences, you will be required to participate in the interlock programme after the disqualification has ended as a condition of getting a new licence. If you have a blood alcohol content reading of 0.10% and successfully apply for a work licence, you will be required to commence your participation in the interlock programme as soon as you obtain your work licence.
Do I need legal advice?
You may need legal advice if you
- have been charged with a drink driving offence, especially if you have previous offences within 5 years and want to know the likely penalty, including the disqualification period
- want to contest a drink driving or failing to provide a specimen of breath or blood or analysis charge
- are considering applying for a Section 79E licence or a work licence
- need to know your prospects of success in appealing a decision of a magistrate about the disqualification period
Important: Before getting legal advice or speaking to a lawyer you’ll need a copy of your traffic history. This is available from a Department of Transport and Main Roads Customer Service Centre by filling in a form and paying a fee. You may be able to get a copy of ‘Queensland Police Traffic Outcomes’ from Police Prosecutions with your QP9 for free. This will sometimes be sufficient. If you dispute anything on your history or the conditions of your licence, you will need to get your traffic history from Department of Transport and Main Roads. Alternatively, you may be able to get a copy of “Queensland Police – Traffic Outcomes” with the QP9. Contact the police prosecutions office for the court you will be attending for more information.
Get legal advice
We may provide legal advice about drink driving offences and work licences. Our traffic clinic gives legal advice if you are pleading not guilty to a drink driving charge or there is something complicated about your matter.
These services may be able to give legal advice:
Community legal centres may give preliminary legal advice on drink driving matters. Contact the relevant centre to find out if they can help you with your matter.
Queensland Law Society can refer you to a specialist private solicitor for advice or representation.
Who else can help?
These organisations may be able to help. They don't give legal advice.
Queensland Traffic Offenders Program (QTOP) is an educational court diversion program for offenders pleading guilty to a traffic offence, including drink driving, unsafe driving, disqualified driving, suspended licence, appealing licence disqualifications (fees apply for this service).
Department of Transport and Main Roads deals with complaints and enquiries about driver licences, registration, traffic fines, etc.