Queensland Consolidated Acts

TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 - SECT 79

79 Vehicle offences involving liquor or other drugs

(1) Offence of driving etc. while under the influence Any person who, while under the influence of liquor or a drug—

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.

(1A) Liability under subsection (1) if convicted within 5 years under subsection (1) If within the period of 5 years before conviction for an offence under subsection (1) the offender has been previously convicted under that subsection, the person is liable for that offence to a maximum penalty of 60 penalty units or 18 months imprisonment.

(1B) Liability under subsection (1) if convicted within 5 years on indictment or against Criminal Code, section 328A If within the period of 5 years before conviction for an offence under subsection (1) the offender has been previously convicted on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the offender or has been summarily convicted of an offence against any provision of the Criminal Code , section 328A , the offender is liable for the first mentioned offence to a maximum penalty of 60 penalty units or 18 months imprisonment.

(1C) Liability under subsection (1) if 2 convictions within 5 years under various provisions If within the period of 5 years before conviction for an offence under subsection (1) the offender has been twice previously convicted—

(a) under subsection (1) ; or

(b) on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the offender; or

(c) summarily of an offence against any provision of the Criminal Code , section 328A ;

or has been previously convicted—

(d) under subsection (1) and on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the offender; or

(e) under subsection (1) and summarily of an offence against any provision of the Criminal Code , section 328A ; or

(f) on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the offender and summarily of an offence against any provision of the Criminal Code , section 328A ;

the justices must for that offence impose, as the whole or part of the punishment, imprisonment.

(1D) Liability under subsection (1) if convicted within 5 years under other subsections If within the period of 5 years before conviction for an offence under subsection (1) the offender has been previously convicted of an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) , the offender is liable for the first mentioned offence to a penalty not exceeding 30 penalty units or to imprisonment for a term not exceeding 1 year.

(1E) Liability under subsection (1) if 2 convictions within 5 years under other subsections If within the period of 5 years before conviction for an offence under subsection (1) the offender has been twice previously convicted of an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) , the offender is liable for the first mentioned offence to a maximum penalty of 60 penalty units or 18 months imprisonment.

(1F) Offence of driving etc. while over middle alcohol limit but not over high alcohol limit Any person who, while the person is over the middle alcohol limit but is not over the high alcohol limit—

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 6 months.

(2) Offence of driving etc. while over general alcohol limit but not over middle alcohol limit Any person who, while the person is over the general alcohol limit but is not over the middle alcohol limit—

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.

(2AA) Offence of driving etc. while relevant drug is present in blood or saliva Any person who, while a relevant drug is present in the person’s blood or saliva—

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.

(2A) Offence of driving etc. while over no alcohol limit but not over general alcohol limit if particular type of driver or licence Any person who is the holder of a learner, probationary or provisional licence or is not the holder of a driver licence, and who, while the person is over the no alcohol limit but is not over the general alcohol limit—

(a) drives a motor vehicle (other than a motor vehicle to which subsection (2B) applies); or

(b) attempts to put such motor vehicle in motion; or

(c) is in charge of such motor vehicle;

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.

(2BB) Definition for subsection (2A) In subsection (2A) —

"learner, probationary or provisional licence" includes a licence, permit, certificate or other authority issued under a law of another State, the Commonwealth or another country that corresponds to a learner licence, probationary licence or provisional licence.

(2B) Offence of driving etc. particular motor vehicles while over no alcohol limit but not over general alcohol limit Any person who, while the person is over the no alcohol limit but is not over the general alcohol limit—

(a) drives a motor vehicle to which this subsection applies; or

(b) attempts to put such motor vehicle in motion; or

(c) is in charge of such motor vehicle;

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.

(2C) Motor vehicles to which subsection (2B) applies Subsection (2B) applies to the following motor vehicles—

(a) a truck, a bus, an articulated motor vehicle, a B-double, a road train;

(b) a vehicle carrying a placard load of dangerous goods;

(c) a tow truck which is licensed or should be licensed under the Tow Truck Act 1973 while it operates as a tow truck under that Act;

(d) a pilot or escort vehicle that is escorting an oversize vehicle;

(e) a taxi or limousine under the Transport Operations (Passenger Transport) Act 1994 ;

(ea) a vehicle that is not a taxi or limousine under the Transport Operations (Passenger Transport) Act 1994 that is available to be used, about to be used or being used to provide a public passenger service under the Transport Operations (Passenger Transport) Act 1994 ;

Example of a vehicle available to be used to provide a public passenger service—

a driver of the vehicle is on duty to accept bookings for a booked hire service, including, for example, by being connected to a booking service or app to accept bookings

(f) a vehicle while it is being used by a driver trainer to give driver training;

(g) a specially constructed vehicle within the meaning of the driver licensing regulation;

(h) a tractor that is not a specially constructed vehicle mentioned in paragraph (g) .

(2D) Offence of driving etc. tram, train or vessel while over no alcohol limit but not over general alcohol limit Any person who, while the person is over the no alcohol limit but is not over the general alcohol limit—

(a) drives a tram, a train or a vessel to which this subsection applies; or

(b) attempts to put in motion a tram, a train or a vessel to which this subsection applies; or

(c) is in charge of a tram, a train or a vessel to which this subsection applies;

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.

(2E) Vessels to which subsection (2D) applies Vessels to which subsection (2D) apply are air cushion vehicles and non-recreational vessels that carry, or are authorised to carry, more than 12 passengers.

(2EA) For subsection (2E) —

"authorised to carry" , for a non-recreational vessel, means authorised to carry under—

(a) for an other Queensland regulated ship—the Transport Operations (Marine Safety) Act 1994 ; or

(b) for a domestic commercial vessel—the domestic commercial vessel national law.

"domestic commercial vessel national law" see the Transport Operations (Marine Safety—Domestic Commercial Vessel National Law Application) Act 2016 , section 20 .

"non-recreational vessel" means—

(a) an other Queensland regulated ship under the Transport Operations (Marine Safety) Act 1994 ; or

(b) a domestic commercial vessel under the domestic commercial vessel national law.

"passenger" , for a vessel, means a passenger as defined in part B of the National Standard for Commercial Vessels.

(2F) Liability under various subsections if conviction within 5 years under the subsections If within the period of 5 years before conviction for an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) the offender has been previously convicted under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) , the person is liable for that offence to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 6 months.

(2G) Liability under various subsections if 2 convictions within 5 years under the subsections If within the period of 5 years before conviction for an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) the offender has been twice previously convicted under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) , the person is liable for that offence to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.

(2H) Liability under various subsections if conviction within 5 years for other offences If within the period of 5 years before conviction for an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) the offender has been previously convicted on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the person or has been summarily convicted of an offence against any provision of the Criminal Code , section 328A or has been previously convicted under subsection (1) , the person is liable for the first mentioned offence to a penalty not exceeding 30 penalty units or to imprisonment for a term not exceeding 1 year.

(2I) Liability under various subsections if conviction within 5 years under the subsections and another conviction If within the period of 5 years before conviction for an offence under subsection (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) the offender has been previously convicted under those subsections and—

(a) has been previously convicted on indictment of any offence in connection with or arising out of the driving of a motor vehicle by the person; or

(b) has been summarily convicted of an offence against any provision of the Criminal Code , section 328A ; or

(c) has been previously convicted under subsection (1) ;

the person is liable for the first mentioned offence to a maximum penalty of 60 penalty units or 18 months imprisonment.

(2J) Offence for particular licence holders if driving etc. while over no alcohol limit but not over general alcohol limit A person who is the holder of a restricted licence, or is a section 79E driver or interlock driver, while the person is over the no alcohol limit but is not over the general alcohol limit, must not—

(a) drive a motor vehicle; or

(b) attempt to put a motor vehicle in motion; or

(c) be in charge of a motor vehicle.

Penalty—

Maximum penalty—20 penalty units or 6 months imprisonment.

(2K) Offence for class RE licence holders if riding etc. a motorbike while over no alcohol limit but not over general alcohol limit A person who is the holder of a class RE licence, while the person is over the no alcohol limit but not over the general alcohol limit, must not—

(a) ride a motorbike; or

(b) attempt to put a motorbike in motion; or

(c) be in charge of a motorbike;

unless the person has held a valid class RE licence for a period of least 1 year during the previous 5-year period.

Penalty—

Maximum penalty—14 penalty units or 3 months imprisonment.

Note—

See subsections (2) and (2B) for offences relating to driving other motor vehicles.

(2L) Offence for class RE licence holders if learning to ride etc. a class R motorbike while over no alcohol limit but not over general alcohol limit A person who is the holder of a class RE licence, while the person is over the no alcohol limit but is not over the general alcohol limit, must not—

(a) learn to ride a class R motorbike; or

(b) attempt to put a class R motorbike in motion; or

(c) be in charge of a class R motorbike.

Penalty—

Maximum penalty—14 penalty units or 3 months imprisonment.

(2M) Definitions for subsections (2K) and (2L) In subsections (2K) and (2L) , where a following defined term appears—

"class RE licence" —

(a) means a class RE provisional, probationary or open licence within the meaning of the driver licensing regulation; and

(b) includes a licence issued under a law of another State, the Commonwealth or another country corresponding to a licence mentioned in paragraph (a) .

"class R motorbike" means a class R motorbike within the meaning of the driver licensing regulation.

"valid" , in relation to a class RE licence, means—

(a) the licence has not expired; or

(b) the licence has not been cancelled or suspended; or

(c) the licensee is not disqualified, by order of an Australian court, from holding or obtaining a driver licence.

(3) Presumption that defendant is under the influence of liquor if over high alcohol limit If on the hearing of a complaint of an offence against subsection (1) the court is satisfied that at the material time the defendant was over the high alcohol limit, the defendant is conclusively presumed to have been at that time under the influence of liquor.

(4) Conviction for offence against subsection (1F), (2), (2A), (2B), (2D), (2J), (2K) or (2L) in particular circumstance Subject to subsection (3) , if on the hearing of a complaint of an offence against subsection (1) the court is satisfied—

(a) as to all the elements of the offence charged other than the element of the defendant’s being under the influence of liquor or a drug at the material time; and

(b) that at the material time the defendant—

(i) was over the middle alcohol limit; or

(ii) was over the general alcohol limit; or

(iii) was a person to whom subsection (2A) , (2B) , (2D) , (2J) , (2K) or (2L) referred and was over the no alcohol limit;

the court must convict the defendant of the offence under subsection (1F) , (2) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) that is established by the evidence.

(4A) Conviction for offence against subsection (1F) or (2) in particular circumstance If in the circumstances provided for in subsection (4) , the court is satisfied that an offence under subsection (1F) or (2) and an offence under subsection (2A) , (2B) , (2D) , (2J) , (2K) or (2L) are both established by the evidence, the court must convict the defendant of the offence under subsection (1F) or (2) .

(5) Conviction for offence under subsection (2AA) in particular circumstances If, on the hearing of a complaint of an offence against subsection (1) , the court is satisfied—

(a) as to all the elements of the offence charged other than the element of the defendant’s being under the influence of liquor or a drug at the material time; and

(b) that at the material time there was a relevant drug present in the defendant’s blood or saliva;

the court must convict the defendant of the offence under subsection (2AA) that is established by the evidence.

(5A) Subsection (5) does not limit subsections (4) and (4A) .

(6) Court not to convict if satisfied of particular matters If on the hearing of a complaint of an offence against subsection (1) (c) , (1F) (c) , (2) (c) , (2AA) (c) , (2A) (c) , (2B) (c) , (2J) (c) , (2K) (c) or (2L) (c) in respect of a motor vehicle the court is satisfied beyond reasonable doubt by evidence on oath that at the material time—

(a) the defendant—

(i) by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle; or

(ii) not being in that motor vehicle, by some action;

had manifested an intention of refraining from driving that motor vehicle while any of the following circumstances relevant to a conviction on the complaint applied—

(iii) the defendant was under the influence of liquor or a drug;

(iv) the defendant was over—

(A) the middle alcohol limit; or

(B) the general alcohol limit; or

(C) if at the material time the defendant was a person to whom subsection (2A) , (2B) , (2J) , (2K) or (2L) referred—the no alcohol limit;

(v) there was a relevant drug present in the defendant’s blood or saliva; and

(b) the defendant—

(i) was not under the influence of liquor or a drug to such an extent; or

(ii) was not, as indicated by the concentration of alcohol in the defendant’s blood or breath, influenced by alcohol to such an extent;

as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a) ; and

(c) the motor vehicle in respect of which the offence is charged was parked in such a way as not to constitute a source of danger to other persons or other traffic; and

(d) the defendant had not previously been convicted of an offence under subsection (1) , (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) within a period of 1 year before the date in respect of which the defendant is charged;

the court must not convict the defendant of the offence charged.

(7) Offence of driving etc. animals and other things while under the influence Any person who, while under the influence of liquor or a drug, drives or is in charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence.

Penalty—

Maximum penalty—40 penalty units or 9 months imprisonment.

(8) Use of ‘liquor or a drug’ in charge not bad A complaint for an offence against any provision of subsection (1) or (7) is not bad for uncertainty or duplicity because it charges the alleged offender with being under the influence of ‘liquor or a drug’.

(8A) Conviction even if particular influence not established If, on the hearing of a complaint mentioned in subsection (8) , the evidence led and admitted (including evidence (if any) for the defence) establishes—

(a) that the person so charged was under an influence which was that of liquor or a drug, or both liquor and a drug; and

(b) all other elements of the offence;

the person must be convicted of the offence even though the particular influence is not established by the evidence.

(9) Suspension of driver licence on failure to appear If a person charged with an offence against any provision of subsection (1) , (1F) , (2) , (2AA) , (2A) , (2B) , (2D) , (2J) , (2K) or (2L) in relation to a motor vehicle does not appear personally before a Magistrates Court at any time and place when and where the person is required to appear, the court must then and there order that any and every Queensland driver licence held by the person be from that time suspended until—

(a) the court revokes the order in the interests of justice; or

(b) the time when the charge is heard and decided or otherwise disposed of.

(9A) Subsection (9) applies subject to the following—

(a) subsection (10) ;

(b) the Bail Act 1980 , section 20 (3AA) to the extent the section provides that the person need not appear personally if the person is represented by the person’s lawyer.

(10) Court’s discretion for subsection (9) order A Magistrates Court has and may exercise a discretion not to make an order under subsection (9) if it is satisfied—

(a) on medical or other evidence placed before the court that the person’s failure to appear before it was caused by any medical or other circumstance making the person physically incapable of appearing before the court; or

(b) making the order would not otherwise be in the interests of justice.

(10AA) A Magistrates Court has and may exercise a discretion to make an order revoking an order made under subsection (9) if it is satisfied revoking the order is in the interests of justice.

(10A) Definition for subsection (10) In subsection (10) —

"medical or other evidence placed before the court" means—

(a) the oral testimony of at least 1 doctor adduced before the court; or

(b) at least 1 certificate placed before the court purporting to be a medical certificate by a doctor; or

(c) both such testimony and certificate; or

(d) such other evidence as is considered by the court to be sufficient in the circumstances to satisfy the court that the person was physically incapable of appearing before the court.

(11) Application of subsections (1)–(2L) Subsections (1) to (2L) apply in relation to any person—

(a) who is in charge of a motor vehicle on a road or elsewhere; or

(b) who drives a motor vehicle on a road or elsewhere; or

(c) who on a road or elsewhere attempts to put a motor vehicle in motion; or

(d) who drives or is in charge of or attempts to put in motion a tram or train on a road or elsewhere; or

(e) who drives or is in charge of or attempts to put in motion a vessel that is being used, or is apparently about to be used, in navigation.

(12) Criminal Code, section 24, not applicable The Criminal Code , section 24 does not apply to an offence under this section.

(13) In this section—

"attempts to put in motion" , a motor vehicle, for an interlock driver, does not, subject to subsection (14) , include an attempt to put in motion a motor vehicle nominated by the interlock driver under section 91L and fitted with a prescribed interlock.

"in charge of" , a motor vehicle, for an interlock driver, does not, subject to subsection (14) , include being in charge of a motor vehicle nominated by the interlock driver under section 91L and fitted with a prescribed interlock.

(14) The definitions in subsection (13) do not restrict the operation of subsection (1) or (2AA) in so far as the interlock driver attempts to put in motion, or is in charge of, a motor vehicle while under the influence of a drug or while a relevant drug is present in the person’s blood or saliva.