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Drink driving offences

If you drink and drive you may have to go to court. You may also be breaking the law even if you don't drive. For example, if you don't blow into a breathalyser when the police tell you to or you have been drinking and you are the person 'in charge' of a vehicle.

Am I breaking the law if I drink any alcohol and drive a car or another vehicle?

Perhaps - it is illegal for you to drive a vehicle while you are what the law calls under the influence of alcohol, prescription drugs, or illegal drugs.

For alcohol, the police use a breathalyser to find out if you have any alcohol in your system. The breathalyser will show your blood alcohol concentration (BAC).

For some drivers, if your BAC is not zero, you are breaking the law. You are 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

For all other drivers, if your BAC is 0.05% or more, you are 'over the limit' and you are breaking the law.

What is a 'vehicle'?

The definition of vehicle is very wide and includes:

  • a motor vehicle
  • a boat or jet ski
  • and all other means of transport that move on wheels including bicycles.

You are breaking the law if you drive a motor vehicle when you are over the limit, no matter where you drive.  For vehicles which are not motorised, you are breaking the law if you are on a road when you are over the limit.

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, as you may be what the law calls 'in charge of the vehicle'. So if you don't drive but you try to start the vehicle or move it, or you are sitting in the driver's seat with the keys in the ignition or nearby, then you may be breaking the law if you are under the influence of alcohol or drugs.

It is also illegal to drive or be in charge of an animal (e.g. a horse) whilst under the influence of alcohol or drugs.

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 are not ‘in charge’. So even if the police haven't seen you driving, just by being in the car under the influence of alcohol or drugs (remember, zero alcohol if you are on a learner, provisional, probationary or restricted licence), you risk being charged with breaking the law.

I have to go to court for drink driving, is it ok for me to drive until court?

If the police pull you up and you are 'over the limit', your licence will be immediately suspended for the next 24 hours. If you drive within that 24 hours, even if it is just to go back to where you left your car and drive it home, you are breaking the law. If you are caught and still over the limit, you can be charged again for drink driving and also with the more serious offence of driving while suspended. Even if when you go back to get the car you are under the limit, you still risk being caught for driving while suspended.

For some drink driving offences your licence is suspended immediately, not just for 24 hours, and if you drive any time before you go to court  you are breaking the law. These include:

  • driving/in charge of a motor vehicle with a BAC of 0.10% or more (the high alcohol limit), or
  • 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 is possible to get a special licence to allow you drive before you go to court. Ask a lawyer about whether you can drive or whether you need to get a special licence before you can drive.

What can the police do if they pull me over or find me in a car?

If the police think you may be under the influence of alcohol they can require that you:

  • give your name and address
  • show your driver's licence
  • get a doctor to take blood from you for a blood test
  • take a breath test at a police station

It is an offence if you:

  • don't give your name and address
  • refuse or don't take a breath test (at the roadside or at the police station) if requested within three 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 (but you have no right to insist that there be a blood test) if requested within three hours of you driving or being in charge of a motor vehicle.

I'm going to court for drink driving - what will happen?

You will always be disqualified from holding or obtaining a Queensland driver's licence for at least one month if convicted of being under the influence or failing to supply a specimen of breath/saliva or blood when the offence involves a motor vehicle. The higher you are over the limit, the longer the period of disqualification is likely to be. You should hand in your driver's licence as it is cancelled then and there. To keep a cancelled driver's licence is an offence. As well as the licence disqualification, you are likely to be fined.  For very high readings or repeat offences you may be jailed.

If you are convicted of:

  • having a BAC of 0.15% or more
  • failing to provide a breath/blood specimen

these are called major offences.

If you are convicted of three major offences within a five year period, then your penalty must include jail. The court has no choice.

What drink driving programs are available?

  • Queensland Traffic Offenders Program is an option available to persons who wish to plead guilty to a traffic offence, ranging from drink driving to disqualified driving to unsafe and or reckless driving. The program is designed to increase the understanding of participants of their social commitments in general and traffic laws in particular. When sentencing an offender, a magistrate may take into account any changes of attitude exhibited by the offender while participating in the program. A fee applies, contact the organisation for the exact amount.

Do I need legal advice?

You may need legal advice if you

  • have been charged with a drink driving offence, especially your third or more charge within 5 years 
  • want to contest a drink driving charge
  • need to know your prospects of success in appealing a decision of a magistrate about the disqualification period
  • have more questions about applying for a work licence for drink driving.

Important: before seeking legal advice you must have a copy of your traffic history to show the lawyer - this is available from a Department of Transport and Main Roads Customer Service Centre by filling in a form and paying a fee. You should also apply for your QP9 and criminal history before seeing a lawyer - contact your local police/police prosecutions office to find out how. There is a fee for getting your criminal history.

Get legal advice

Legal Aid Queensland may provide legal advice on drink driving and work licences. Our Traffic Clinic provides specialist legal advice on complex matters.

The services below may also be able to provide you with legal advice.

Community legal centres may provide preliminary legal advice on drink driving matters - check with individual CLCs whether they will advise on your matter.

Queensland Law Society can refer you to a specialist private solicitor for advice or representation.

Who else can help?

These organisations may also be able to assist with your matter. They do not provide legal advice.

Queensland Traffic Offenders Program (QTOP) is an educational court diversion program for first and second time offenders who want to plead 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 concerning drivers licence, registration, traffic fines, etc.

Last updated 26 May 2021

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