Drink Driving – S79(1) Two Prior Convictions Arising From Motor Vehicle

What the law says

Drink Driving – S79(1) Two Prior Convictions Arising From Motor Vehicle.

Section 79 of the Transport Operations (Road Use Management) Act Queensland states:

• (1) 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;
  • (d) is guilty of an offence.
• 1C. 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)…
    the justices must for that offence impose, as the whole or part of the punishment, imprisonment.
• 3. 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 under the influence of liquor

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. Was:
   • (a) driving a motor vehicle, tram, train or vessel; OR
   • (b) attempting to put a motor vehicle, tram, train or vessel into motion; OR
   • (c) In charge of a motor vehicle, tram, train or vessel; AND
2. Was under the influence of liquor or a drug; AND
3. Has two prior convictions in the last 5 years under section 79(1) – Driving under the Influence.

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

• Maximum Penalty – a period of imprisonment, at the discretion of the Magistrate.
• Licence Disqualification – 2 years unless the Magistrate makes a specific order otherwise.
• Minimum Licence Disqualification – 2 years.
• Max Licence Disqualification – at Magistrate’s discretion.
• Persons convicted under this section are not entitled to apply for a work licence.

Which court will hear the matter

Under section 3(5) of the Criminal Code Act  Queensland this offence is classed a simple offence and therefore may be heard in the Magistrates Court pursuant to section 19 of the Justices Act Queensland.

Possible defences

Possible defences to this offence include but are not limited to

1. The accused did not in fact drive a motor vehicle, tram, train or vessel.
2. The accused did not in fact attempt to put a motor vehicle, tram, train or vessel into motion.
3. The accused was not in fact in charge of a motor vehicle, tram, train or vessel.
4. The accused was not under the influence of alcohol (i.e. reading below 0.15) or a drug.
5. The accused does not in fact have two prior convictions in the last five years under s 79(1).
6. Duress – example: there was a threat of harm against the accused or another person and the accused reasonably believed that the threat would be carried out if he or she did not drive at that time.
7. Necessity – example: there was an extraordinary emergency that compelled you to drive at that point.
8. Insanity
9. Identification i.e. the offender was not the accused