Dangerous Operation Of A Motor Vehicle Causing Death Whilst Adversely Affected

What the law says

Sections 328A of the Criminal Code Queensland states:

1. A person who operates, or in any way interferes with the operation of a vehicle dangerously in any place commits a misdemeanour for which the maximum penalty is 200 penalty points or 3 years imprisonment.
2. If the offender-
   • (a) at the time of committing the offence is adversely affected by an intoxicating substance; or
   • (b) at the time of committing the offence is excessively speeding or taking part in a dangerous race or unlawful speed trial; or
   • (c) has been previously convicted either upon indictment or summarily of an offence against this section;
     the person commits a crime for which the maximum penalty is 400 penalty points or 5 years imprisonment.
3. If the offender has been-
   • (a) previously convicted either upon indictment or summarily of an offence against this section committed while the offender was adversely affected by an intoxicating substance; or
   • (b) twice previously convicted upon indictment or summarily (or once upon indictment and once summarily) of the same prescribed offence or different prescribed offences;
     the court or justices shall upon conviction, impose as the whole or part of the punishment, imprisonment.
4. A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death or bodily harm to another person commits a crime and is liable on conviction on indictment-
   • (a) to imprisonment for 10 years, if neither paragraph (b) or (c) applies or
   • (b) to imprisonment for 14 years if, at the time of committing the offence, the offender is-
     • (i) adversely affected by an intoxicating substance; or
     • (ii) excess speeding; or
     • (iii) taking part in an unlawful race or unlawful speed trial; or
   • (c) to imprisonment for 14 years, if the offender knows, or ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident, other than to obtain medical or other help for the other person before a police arrives.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

The accused:

1. operated a motor vehicle
2. in a place, namely……………
3. dangerously
4. as a result of the dangerous operation of the motor vehicle, causing the death of the deceased.
5. was adversely affected by alcohol
6. if it has been alleged that the defendant has been previously convicted of any of the offences referred to in 328A (2) or (3) this circumstance of aggravation must be pleaded and proved.

Circumstances of Aggravation:

1. The accused is has a blood alcohol concentration equal or exceeding .150.
2. The accused thereby as a result of the dangerous driving caused the death of the deceased.
3. The accused showed callous disregard to the deceased or injured person.
4. The accused was in a road race.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

The Maximum penalty for the offence of Dangerous Operation of a Motor Vehicle varies according to the circumstance of the offence as outlined above.

Which court will hear the matter

This matter is often indictable which can only be dealt with in the District Court. Dangerous Driving simpliciter (without aggravating features) may be dealt with in the Magistrates Court.

Possible defences

Possible defences to this offence include but are not limited to

The accused

1. was not operating the motor vehicle
2. he was not operating the motor vehicle dangerously in all the circumstances.
3. was not in a road race.
4. did not show callous disregard to the injured person.
5. did not cause the death to the person because of an intervening cause.
6. was in an accident (Objective Test applies in this defence)