Did you know that you could get done drink driving on an electric scooter?
Article by Erin Mitchell, Senior Criminal Lawyer
On Saturday 13 January 2019, a man in his 40s was intercepted by Police in Brisbane riding one of those new green electric scooters that you see parked around the Brisbane CBD.
It is alleged the man was riding the scooter without a helmet and proceeded through a red light without stopping. When Police intercepted him, they breathalysed him and he returned a reading of 0.174% blood alcohol concentration (BAC).
The man was charged with driving under the influence – a high range drink driving offence, given the reading was over 0.15% BAC.
Can this be correct? Can a person be charged with drink driving a motorised scooter?
Under section 79 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM), any person who, while under the influence of liquor or a drug drives a motor vehicle, train, train or vessel (or attempts to put in motion or is in charge of a motor vehicle, tram, train or vessel) is guilty of an offence.
The maximum penalty under this section (provided the person does not have any previous convictions) would be 28 penalty units or up to 9 months’ imprisonment. If a person does have previous convictions within the relevant 5 year period, the maximum penalties increase.
Whilst a car is a very simple example of a motor vehicle, one might wonder whether a motorised scooter meets the definition of “motor vehicle”.
What makes this case an interesting one for us traffic lawyers, is that the definition of “motor vehicle” as contained in the TORUM legislation is as follows:
“motor vehicle” means a vehicle propelled by a motor that forms part of the vehicle, and—
(a) includes a trailer attached to the vehicle; but
(b) does not include a motorised scooter, a personal mobility device or a power-assisted bicycle.
At first glance, it looks like an open and shut case. How could Police have charged him when the law clearly says that a motorised scooter is NOT a motor vehicle?
Well, one must first check that the scooter actually meets the definition of a “motorised scooter”.
When you review the definition of “motorised scooter”, for the purposes of this legislation, it must meet the following criteria:
- has two or more wheels and a footboard supported by the wheels; and
- is steered by handlebars; and
- is designed to be used by a single person; and
- is propelled by gravity, the user pushing 1 foot against the ground and/or an electric motor/ motors; and
- it is fitted with an electric motor or motors that comply with the following requirements:
- The maker has certified the ungoverned power output of the motor/ motors (by engraving the motor/s or a attaching a plate to the motor/s); AND
- The maximum power output of the motor, or the combined maximum power output of the motors (if more than 1), is not more than 200 watts; AND
- When propelled only by the motor/s, the scooter is not capable of going faster than 10 km/h on level ground.
It is our understanding that the Lime scooters you see zooming around Brisbane (and the scooter alleged to have been involved in this particular case) can exceed the 10km/h speed limit and as such fails to meet the definition of a “motorised scooter”.
This means they meet the definition of a motor vehicle and, consequently, a person can be charged with drink driving, just like this man has been.
The consequences are quite serious for this man, or someone else, who might find themselves in this position.
- At the time of being charged, his driver licence would have immediately been suspended. That suspension will be in place until his matter is finalised before the Courts. If a person drives during that disqualification, they face a minimum disqualification of two years, up to five years.
- If convicted, he will be penalised by the Courts (which may be a significant fine). He will also be disqualified from driving a motor vehicle. Under our Queensland traffic laws, a person charged with a high range drink driving offence (provided they do not have previous convictions for like offences within the last 5 years), will be disqualified for a minimum period of 6 months. Often for a reading such as this one, the disqualification is much higher. That disqualification period only commences on the date of conviction. So in other words, that 6 months (or greater, depending on the Court’s order) will be in addition to the time he has been without a licence awaiting the resolution of his matter.
- Those charged with this offence are not eligible for any type of work licence, due to the reading being 0.15% BAC or over and as such the impact on their lives, and that of their family, can be significantly impacted.
- The other consequence for this man, which he may not yet realise, is that if convicted, Queensland’s alcohol ignition interlock laws will also apply to him.
What are the alcohol ignition interlock laws?
Following the lengthy disqualification period imposed by the Court at his sentence, when this man is due to get his licence back, he will be required to obtain an interlock licence or face a further 2 years without a licence (unless he meets one of the exemptions).
The alcohol ignition interlock laws apply to any person who is charged with a high range drink driving offence in relation to a motor vehicle. They can also apply to other persons, such as repeat drink-driving offenders. They are designed to stop a person driving a motor vehicle unless their BAC is 0.00%.
Is there a way to get out of the interlock laws?
There are very few grounds of exemption that would allow a person to avoid these interlock provisions. The exemptions relate to:
- Those persons who live in a remote location (meaning outside a 150km radius from the nearest interlock installer’s place of business);
- Those persons who live on an island, that is not connected to the mainland by a bridge, where there is no interlock installer and the island is not a non-exempt island;
- Those persons who have a medical condition that stops them from providing the required volume of breath to operate the interlock device; or
- Those persons who have extenuating circumstances that impact their ability to reasonably use an interlock. The circumstances must be such that they would cause you or your family severe financial hardship and it has been noted that an exemption will not be granted simply because you are unable to install the interlock for employment or financial reasons.
So, unless you live on one of the following islands (Coochiemudlo, Fraser, Karragarra, Lamb, Macleay, Magnetic, North Stradbroke, Orpheus or Russell Island) or in a very remote area, chances are you may find yourself subject to the interlock laws if convicted of one of the relevant offences.
If the cost of installing the device is going to cause difficulties, there is financial assistance available in certain circumstances and more information is available on Queensland Transport’s website.
So what do the interlock laws mean for your driver licence?
The interlock laws mean that for a person to re-commence driving after their court ordered disqualification period, they have to take the following steps:
- Apply for an interlock licence; and
- Arrange to have an interlock installed in their nominated vehicle (and pay all associated costs for installation, rental, servicing and removal); and
- Notify the department of their nominated vehicle’s details.
If a person chooses not to undertake these steps, they will be unable to obtain a licence for a further 2 years. This is not a viable option for most people. If the person is driving a company vehicle, they will need to get their employer’s permission to install the interlock into the vehicle and complete the relevant forms in that regard.
Once a person has obtained their interlock licence, and become an “interlock driver”, they are only allowed to drive their nominated vehicle fitted with a prescribed interlock device. Generally speaking, an interlock driver is subject to the interlock requirement for 12 months from the day that he or she obtains a valid Queensland driver licence, and has a prescribed interlock fitted to a nominated vehicle. That 12 month period may be extended in certain circumstances, such as if a person driver drives their nominated vehicle knowing that the interlock was not operating properly or had been interfered with, tampered with, damaged, destroyed or removed.
It is an offence for an interlock driver to drive a “prohibited vehicle”. A prohibited vehicle is defined as “a motor vehicle other than a motor vehicle the person may drive under the interlock condition of the person’s Queensland driver licence”. This definition would seem to include any vehicle which is not a nominated vehicle (even if an interlock is fitted to that vehicle), as well as a nominated vehicle if that vehicle does not have an interlock fitted.
An interlock driver convicted of driving a vehicle not fitted with a prescribed interlock faces a fine of up to 28 penalty units (which is currently $3,655.40) and a mandatory 3 month licence disqualification. For a second or subsequent offence committed within 5 years of a previous conviction, the maximum fine is 60 penalty units (currently $7,833.00) with a mandatory 6 month licence disqualification.
What can I do? Do I need a lawyer?
If you find yourself facing a drink driving offence, some or all of the consequences outlined above may apply to you.
At Potts Lawyers, we have great experience in representing people charged with driving under the influence and other drink driving offences, and will be able to assist you in achieving a great outcome in your case. Please contact us to arrange a meeting if you find yourself facing a drink driving charge, so we can discuss what steps you can take prior to your court date to minimise the penalty and disqualification period. If you aren’t facing a high range drink driving offence (so any readings under 0.15%), you may be eligible for a work licence and we can talk you through that process.
 Although, it is impossible to say what penalty will be imposed without knowing all the circumstances and his background. Much will depend on the circumstances of the alleged offending (eg. aggravating features such as his other alleged offending at the time (fail to stop at red light/ not wearing a helmet) and what his traffic history is like (eg. whether he has like offences, numerous previous convictions, etc).