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Week 11 & 12 - Motor Vehicle Offences (Alyce Elder)

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Drink Driving Offences Definition: WRITE: The offence of drink driving is created in s 79 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TO(RUM)’), which may be major or minor depending upon the accused’s blood alcohol level. Has [accused] committed the offence of drink driving? WRITE: Under TO(RUM) s 79, four elements must be satisfied to find that the accused has committed the offence of drink driving. 1. Was [accused] driving, putting in motion or in charge of the object? (a) Drive: WRITE: ‘Drive’ is not defined in TO(RUM). However, the common law establishes that a person is ‘driving’ where they have ‘physical control over the movement and direction of the motor vehicle in a substantial sense’ (McNaughton v Garland). The underlying notion of ‘driving’ is propulsion, that is, the driver must have control of moving the vehicle (McGrath v Cooper). Apply the following situations [if any] to the facts:  Steering towed vehicles: WRITE: [accused] was not ‘driving’ where they were controlling, steering and operating the brakes in a vehicle being towed whose engine is not running as the person has limited control over the direction and speed of the vehicle (MacNaughton v Garland).  Coasting down a hill: WRITE: [accused] was driving as they were able to control the brakes and direction of the car, despite the fact that the engine was not engaged (Allan v Quinlan). However, where the accused was coasting down a hill for a little bit and stops shortly afterwards, they were not ‘driving’ (Burke v Wilton).  Vehicle being pushed: WRITE: [accused] was not ‘driving’ because of the limited control over the object’s movement (McGrath v Cooper ).  Accused taking hold of steering wheel: WRITE: [accused] was not ‘driving’ because they did not have control over the speed or propulsion of the vehicle (Murray’s case).  Driving instructor (with dual controls): WRITE: [accused] was driving’, even though they had limited control over the direction of the vehicle (Rowe v Hughes).  Fall asleep at wheel: WRITE: [accused] would be classified as ‘not driving’ historically (Scarth’s case). However, arguably today, it is more likely to be considered that the accused was driving as, except in circumstances of a medical condition, the accused could have stopped the vehicle before falling asleep.  Epilepsy, stroke, concussion, coma, blow to the head, attacked by swarm of bees: WRITE: [accused] would not be considered to be driving according to common law (Allan v Quinlan; Hill v Baxter). OR (b) ‘Attempting to put in motion’ WRITE: It is clear from the facts that [accused] was/was not trying to put the object in motion. OR 1 (c) ‘In charge of’ WRITE: [accused] may alternatively have been ‘in charge of’ the object. TO(RUM) s 124(1)(t) states the presumption that even though a person is not the actual driver of an object, if they appear to be the driver, they may be held to be ‘in charge of’ the object. However, this presumption is rebuttable if the court is satisfied that [accused] had manifested an intention not to exercise control over the vehicle. Cases:  Elloy v Noble: defendant not ‘in charge of’ his motor vehicle - allowed another man to drive him home, was passenger at time of crash, driver fled, defendant leaned against car showing ownership, offered to pay for damage, keys in ignition.  White v Wood: defendant not ‘in charge of’ motor vehicle - slumped over steering wheel, under influence of alcohol, keys placed on front steps of house where car parked.  Brooks v Sposovski: was ‘in charge of’ motor vehicle – sat in driver’s seat, keys in lap, under influence of alcohol. Apply the following situations [if any] to the facts: WRITE: [Accused] will likely not be considered to be ‘in charge of’ as s/he will be able to establish the defence under (TO(RUM) s 79(6)) that he/she was:  not occupying the driver’s compartment or not in the motor vehicle as s/he has manifested the intention of refraining from driving;  not under the influence of liquor or drug as to be incapable of forming the intention to refrain from driving;  not unsafely parked in the object so as not to constitute a source of danger to other persons or traffic;  not previously convicted of a dangerous driving offence in the previous 12 months. Cases:  Newburn v McCann; Ex parte McCann: manifested an intention not to drive – asleep in driver’s seat, keys taken by another person, bucket seat forced into reclining position, defendant lying back & upper part of body outside driver’s compartment. 2. Was the object a motor vehicle, tram, train or vessel? a) Motor Vehicle: WRITE: Under TO(RUM) sch 4, a ‘motor vehicle’ is a vehicle propelled by a motor that forms part of the vehicle, and includes a trailer attached to the vehicle. Further, a ‘vehicle’ is any type of transport that moves on wheels and a hovercraft but does not include a train or tram (TO(RUM) Sch 4). Here, it is clear from the facts that the object used by the accused was/was not a motor vehicle. OR b) Train, tram or vessel Train: any conveyance or group of connected conveyances borne upon a rail or rails of a railway (TORUM Sch 4). Tram: any conveyance or group of connected conveyances used or designed for use upon a tramway (TORUM Sch 4). 2 Vessel: ship, boat, punt, ferry, air cushion vehicle and every other kind of vessel used or apparently designed for use in navigation whatever may be the means of its propulsion (TORUM Sch 4). Note: s 79(7) TORUM makes section apply to horse or other animal. 3. Was [accused] on a road or elsewhere? a) Road WRITE: TO(RUM) Sch 4 defines ‘road’. Look to see if the following apply to ascertain if ‘road’ (TO(RUM) Sch 4):  A busway;  An area that open to or used by the public and was developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise.  Dedicated to public use as a road. **Does not include area declared under a regulation not to be a road. Examples: bridge, footpath (Hall v Coughlan), median strip (Kunze v Vowles), cattle grid, culvert, ferry, ford, railway crossing, shopping centre car park, tunnel and viaduct. WRITE: Therefore, [accused] can/cannot be considered to have been on a ‘road’. OR b) Elsewhere WRITE: ‘Elsewhere’ should be construed widely, given its literal meaning. It covers a situation where a vehicle is entering private property from a public road (Fleming v Skerke; Hodgson v Turner). 4. Was [accused] ‘under the influence’ or over the general alcohol limit but under the high alcohol limit? a) Under the influence: WRITE: Under TO(RUM) s 79(1), to be ‘under the influence’, [accused] must have had a blood alcohol level that was over the high alcohol limit. The ‘high alcohol limit’ is 0.15 (TO(RUM) s 79A(3)). As [accused]’s blood alcohol limit was [], s/he was/was not ‘under the influence’. Further, the accused will be more likely deemed to be ‘under the influence’ if they display indicia, from their physical appearance or behaviour, of intoxication. The prosecution must show that the accused’s physical and mental capacity was so affected that they were no longer in a normal condition (Noonan v Elson) or at the relevant time, they were to some observable degree, influenced by liquor (O’Connor v Shaw). From the facts, it is clear that the [accused] displayed the indicia of…apply relevant factors below: o Slurred speech o Bloodshot eyes o Breath smelling of alcohol o Staggering o Colour of person’s face o Needle marks 3 o Clothing soiled o Hallucinations o Unable to follow instructions o Unable to balance head o Hiccupping o Lack of balance CASES:  Noonan v Elson: not enough indicia – eyes heavy & weary, breath smelled of alcohol, general dull & tired appearance, aggressive & resisted arrest.  O’Connor v Shaw: enough indicia – smelled of alcohol, couldn’t control his head, slurred speech, repetitive statement. IF NOT ‘UNDER THE INFLUENCE’, CONSIDER… b) Over general alcohol limit but under high alcohol limit: WRITE: Proof of this offence is dependent upon proof by way of a certificate issued after a breathalyser or blood test. The accused will be considered to be over the general limit if they had a blood alcohol level of more than 0.05 (Transport Operations (Road Use Management) Act 1995 (Qld) s 79A). Therefore, the accused’s blood alcohol limit of [] deems him/her over/under the general alcohol limit. Conclusion/Penalty If accused’s blood alcohol level is more than 0.05 but less than 0.15: WRITE: Under TO(RUM) s 79(1), as the accused’s blood alcohol level was above the general limit but lower than the high limit, he/she is likely guilty of committing a minor drink drinking offence and will be liable to a maximum penalty of 14 penalty units or 3 months imprisonment. If accused’s blood alcohol level is more than 0.15: WRITE: Under TO(RUM) s 79(2), as the accused was considered ‘under the influence’ at the time of the incident, he/she will likely be guilty of committing a major drink driving offence and will be liable to a maximum penalty of 28 penalty units or 9 months imprisonment. Also refer to TO(RUM) s 79(1A)-(1E) and 79(2A)-(2J) for aggravating factors to penalty. FURTHER PENALTIES – ** FAILURE TO SUPPPLY: 1. Check procedure for administration of breath test valid (TO(RUM) s 80): 1. Preliminary breath test:  Roadside by RBT unit (authority for stopping vehicles for purposes of admin breath tests – s 80(2))  Roadside, police station or other place: o Following an accident (s 80(2A)); or o If police officer suspects on reasonable grounds that during preceding 2 hours person had been driving, attempting to put in motion, or was in charge of a motor vehicle (s 80(2)).  Can be administered on private property (Fleming v Skerke). 2. Breathalyser test (s 80(6)/(8)): (a) breath test indicates presence of alcohol; or (b) breath test not conducted and/or where person is 4 (i) Detained/arrested for offence against ss 79 o
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