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Can I be Charged for Drink-Driving if I am Sitting in a Stationary Vehicle?

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In Australia, the dangers of drink-driving are well known. We have almost all viewed and been exposed to the government funded Road Safety Commission television advertisements and educational campaigns. It is generally common knowledge amongst license holding Western Australian’s that driving with a blood-alcohol level of over 0.05% is illegal. However, not many people know that sitting in a stationary car and drinking alcohol, or being under the influence of alcohol, may also be against the law.

According to Section 63 of the Road Traffic Act 1974 (WA):

  • A person who drives or attempts to drive a motor vehicle-
    • While under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of alcohol or drugs to such an extent as to be incapable of

          having proper control of the vehicle,

          commits an offence, and the offender may be arrested without a warrant.

In order to determine whether or not a person is under the influence of drugs or alcohol, Section 66 of the Road Traffic Act relevantly states that:

  • A police officer may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first-mentioned requirement was made.

A person may therefore be charged with drink-driving if they are over the legal blood alcohol limit and they are:

  1. Driving a motor vehicle; or
  2. Attempting to put a motor vehicle into motion; or
  3. ‘In charge’ of a motor vehicle.

A person will be determined to be ‘in charge’ of a motor vehicle if they have the ability to exercise physical control over it. This is a broad definition which encompasses a range of situations, such as: sitting in an idling vehicle; sitting in a stationary vehicle while in possession of the keys; or even sleeping behind the wheel of a stationary vehicle.

Whether or not a person is determined to be ‘in charge’ of a vehicle will depend upon a combination of the following factors:

Location of the Person

The location of the person is a key factor in determining whether or not a person is ‘in charge’ of a motor vehicle. Put simply, the closer the person is to the ignition of the vehicle, the more likely they are to be determined to be ‘in charge’ of it.  For example, a person is sitting in the driver’s seat is, by nature, far more likely to be able to exercise physical control over the vehicle than a person who is sitting in the backseat.

Location of the Car

Another important factor in determining whether or not a person is ‘in charge’ of a motor vehicle is the location of the car. The location of the car will not only give police an indication of whether the person was driving before the offence occurred, but the extent to which putting the car into motion may have presented a danger to the public. For example, a person parked in their own driveway may present less of a concern to police than someone who is parked on the side of the freeway or on a major street in a busy area.

Location of the Keys

The location of the keys will also play an important role in determining whether or not a person is ‘in charge’ of a motor vehicle. Given that keys are required to start the engine of most motor vehicles, not having possession of them would indicate to police that a person is unlikely to be able to exercise physical control over the vehicle. The keys being located in a person’s bag, on the backseat of the vehicle or in the boot would also be more favourable than being found in the ignition, for example.

 Status of the Engine

Like the location of the keys, the status of the engine will play a critical role in whether or not a person is determined to be ‘in charge’ of a motor vehicle. For example, if the vehicle’s engine is running, a person is far more likely to be able to exercise physical control over the vehicle than if it had been turned off. However, the status of the engine may also be mitigated by other factors, such as the location of the driver and how alert they appear to be. For example, a person sleeping on the backseat of their car may be able to justify the engine running for the purposes of air conditioning while they sleep.

Level of Alertness

The final factor in determining whether or not a person is ‘in charge’ of a motor vehicle is how alert the person appears to be; or in other words, whether they are awake or asleep when found by police. A person who is found to be asleep would, from a logical perspective, be far less likely to be able to exercise physical control over the vehicle than someone who is awake. However, a person who is asleep is not automatically excluded from committing an offence and would still need to prove that they were not ‘in charge’ of the vehicle when they were found by police.

 

Even if a person satisfies each of these factors and is determined to be ‘in charge’ of a motor vehicle, they may still be able to contest this charge if they can sufficiently demonstrate that they did not intend to drive and/or were not in control of the motor vehicle. This may apply in situations where a passenger was drinking alcohol but did not have sufficient control over the vehicle, for example.

Drink driving offences of this nature are a complicated and niche area of law. Due to the complexity of the situation, the specific factual circumstances play a prominent role in any defence.

If the content of this article appears relevant to your circumstances, or if you require assistance with another matter related to Traffic Law, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Will my Past Criminal Convictions Stay on my Criminal Record Forever?

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The short answer: if the last conviction is at least 10 years old, then you may be able to clear your record.

Your criminal record is adduced from your criminal history, which consists of all arrests, court appearances, convictions, non-convictions and police warnings that are kept on file by the police. Naturally, you may be anxious about these past issues staying on your criminal record forever. This record may have an impact on potential job applications, should an employer make a request for you to disclose any criminal convictions.

While there is no obligation for the police in Western Australia to destroy your conviction record information – you may be able to apply for a spent conviction.

 

What is a Spent Conviction?

A spent conviction is essentially the same as having no conviction recorded. This means the disclosure requirements for that conviction will be limited. A spent conviction does not have to be disclosed under most circumstances, and will not be included when you apply for a National Police Clearance check (a key document employers may require when applying for employment).

However, it is noted that although a conviction is ‘spent’, the conviction does not disappear completely – the police will keep the record as part of your private criminal record, and your whole criminal history will be reviewed if you find yourself in court for another offence.

Certain situations do require you to disclose a spent conviction such as when you apply for a Working with Children Check, or if you are applying to work for a casino or the police.

For a full list of exemptions, you can review the Spent Convictions Act 1998 (WA), or talk to a lawyer regarding your specific situation.

 

How can I Apply for a Spent Conviction?

You can apply for a spent conviction while you are being sentenced. Preparing this simultaneous application will not have any impact on your actual penalty, rather this is treated as a separate matter once the sentence has been handed down.

If your concern is regarding a previous conviction, you may apply to have it spent by submitting a Spent Conviction Application form, or through a National Police Certificate application as the application includes a request for the WA Police to spend any eligible WA Convictions.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA, the conviction must;

  • Be a ‘lesser conviction’ in which the penalty was;
    • A fine of $15,000 or less; or
    • An imprisonment term of 12 months or less.
  • Have been heard in a West Australian Court;
  • Be over 10 years old; and
  • The most recent conviction (if multiple), including traffic and interstate matters, must be over 10 years old or have a fine of under $500.

All serious convictions that imposed penalties above the $15,000 or 12-month limit can only be spent by making an application to the District Court.

A successful District Court application will depend on a number of factors including:

  • Your personal circumstances;
  • The type of offence;
  • The penalty you receive; and
  • Your criminal history.

You must ensure that you provide adequate reasons for the Court to make this decision in their discretion. Carter Dickens Lawyers specialises in spent conviction applications and may assist you with efficiently working through the necessary steps to apply for such orders.

 

Commonwealth (Federal) Offences

If you have been convicted of a Federal offence, this conviction may automatically become spent after a certain amount of time under the Crimes Act 1914 (Cth). These times are:

  • For an adult, 10 years beginning on the date of conviction, and
  • For a minor, 5 years beginning on the date of conviction.

 

How can a lawyer help?

If you would like to discuss your eligibility and the process involved in applying for a spent conviction, Carter Dickens Lawyers are able to guide you through this application.

If your matter concerns a serious conviction, preparing your case to convince the Court can be a difficult task, and for this reason, it is advised that you speak to a lawyer before commencing your application process.

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

It’s the Drugs, Not Me!: How Perth’s Drug Court addresses drug addictions and helps to reduce overall sentences simultaneously

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Drugs are often related to crime through the effects that they have on the user’s behaviour. In the eyes of the law, an offender cannot use their drug use as an excuse for criminal actions.

However, while an offender cannot blame drugs on their offending behaviour, an acknowledgement of a drug problem may enable them to access the Perth Drug Court for help.

 

What is the Drug Court? What does it do?

The Perth Drug Court operates in the Perth Magistrates Court and is aimed at breaking the cycle of drug related offences by allowing individuals to enter a treatment program prior to sentencing. Allowing the participant to deal with the problems prior to sentencing shows the Court that they have taken positive steps in the attempt to reduce the likelihood of reoffending. As a result, the presiding judicial officer will take these steps and efforts by the offender to change their behaviour into account, and may subsequently reduce their overall sentence in light of this information.

This process aims to help individuals by:

  • Supporting participants in addressing their substance misuse and associated lifestyle;
  • Helping participants change their behaviour so that they can lead a constructive, fulfilling and law-abiding life;
  • Reducing the imprisonment of those with substance misuse issues by addressing problems that are integral to offending behaviour; and
  • Reducing post-treatment supervision requirements for participants by having them address relevant requirements at an earlier stage in the process.

A review of the Perth Drug Court conducted by the Department of the Attorney-General found strong evidence that involvement in a Drug Court program had a positive effect in reducing the level of re-offending among individuals charged with a drug-related offence. Specifically, it was found to be associated with a net reduction in recidivism of 17% over prison and 10.4% over community corrections.

 

Who is accepted by the Drug Court?

Not everyone is automatically eligible to participate in the Drug Court program. To participate, an applicant must:

  • Admit that they have an illicit substance abuse problem;
  • Enter a plea of guilty to all charges;
  • Be willing to undergo appropriate and agreed evidence-based drug treatment, in the community or a residential rehabilitation facility; and
  • Be willing to be supported and supervised by the Drug Court and the Court Assessment and Treatment Service (CATS).

 

How do I get referred to the Drug Court?

The Perth Drug Court accepts referrals from the Magistrate, District and Supreme Courts, and is normally referred at your first court appearance. After you have been referred to the program, you will undertake an initial assessment, and be considered by the Drug Court Magistrate as to your suitability.

The Drug Court Magistrate, when assessing your suitability, will take into consideration the seriousness of your drug problem, the seriousness of the offence and what individual requirements have been identified during the assessment. If accepted, your final sentencing will be deferred until after you complete the treatment program.

 

What are the Drug Court programs? Which one will benefit me?

There are three different pre-sentence programs available within the Perth Drug Court, which are as follows:

  • Supervised Treatment Intervention Regime (STIR): For those that have committed less serious offences that would not result in a prison sentence. This program runs for up to 6 months and involves community-based treatment and less intense case management.
  • Drug Court Regime (DCR): For those with a significant criminal history and drug problems, who have committed a serious offence. This program runs for up to 6 months.
  • Pre-Sentence Order (PSO): For those with a significant criminal history and who are looking at a substantial prison sentence. This program runs for approximately 12 months and heavy supervision is required.

All of the above programs require you to undertake regular drug screen urine tests, make regular appearances in the Drug Court, and participate in treatment through the help of support services and programs within the community.

 

How can a lawyer help?

Although decision making is largely dependent on the discretion of the Court, one of our lawyers may be able to assist in your matter by:

  • Providing you with detailed information on the Drug Court;
  • Discussing whether you are likely to be eligible for a program;
  • Representing you throughout your proceedings before the Court;
  • Providing you with specific information on how participating in a program can be beneficial to you;
  • Assisting you in obtaining a referral from the Court; and
  • Once the program is completed, assist you in preparing for your sentencing hearing with the aim of minimising your sentence to the greatest extent possible.

If you wish to be assisted in the matters outlined above or have any further questions about the Drug Court and wish to speak to a lawyer, please do not hesitate to contact Carter Dickens Lawyers on (08) 9408 5212.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Did you need to speed? Facing Traffic Offences with a Lawyer

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Most people choose to deal with traffic offences by copping the fine and the demerit points, even if they know it was unfair, there were extenuating circumstances or they are completely innocent. 

In many cases that’s the easier, cheaper option than trying to fight it. 

However, some charges can lead to a driver’s license disqualification, which can destroy your ability to do your job. 

For example, the following offences lead to license disqualification in WA, for various periods of time, if you are found, or plead, guilty tothe following charges: 

  • Reckless Driving will always lead to a license disqualification , and 
  • Dangerous Driving – If you already have dangerous driving offences on your record, you will always get a license disqualification . 
  • Drink Driving offences, other than first offences under a certain percentage blood alcohol, also have mandatory disqualification periods.  

This means that if you plead guilty, even if you have the best reason in the world, the Court must disqualify your license. The Judge or Magistrate doesn’t have a choice in the matter. 

Sometimes the best choice is to put your hand up. Sometimes your best choice is to fight. 

Unfortunately, justice often isn’t free – so it can come down to a financial decision. Even at this stage, a lawyer can help you decide whether it’s worth fighting. 

 

Why plead not guilty? 

Sometimes the best choice is to fight the charges. A lawyer can be of great assistance to you in these circumstances. For example: 

  1. When there isn’t enough evidence to show that it was you who committed the offence, or there isn’t enough evidence to show you were drunk at the time of the offence, a lawyer can help you negotiate with police to get the charges dropped, also known as “discontinued”.  
  2. A lawyer can help you negotiate with police to ‘downgrade’ the charges, so the penalties faced are less serious. 
  3. A lawyer can put forward another defence, such as an emergency defence, to show why your driving was in exceptional circumstances, which need to be taken into account. 

One of the reasons lawyers can help with this that you may not know, is that when Police take someone to trial without a lawyer, and they lose, there are no consequences for the police.

However – when they take someone to trial who has a lawyer, that lawyer can ask for their legal costs to be paid by police, which the police then have to pay – and you get a whole or partial refund. 

When the police know you’ve got a lawyer representing you, they know they’d better have a very convincing case to show the court, or they’ll be on the hook for your legal costs. This makes them more careful about whether they proceed to trial.  

Your lawyer can get the charges dropped at this point if they can show the police the holes in their case. They can also ‘bargain’ with police, for example suggesting that they drop a more serious offence, you would be willing to plea to a lesser offence. 

As a result, when you enter a plea of not guilty – the matter often still won’t need to go to trial. In fact – very few matters do go to trial. 

Of course, if you do go to trial, it goes without saying that your lawyer can be of assistance. 

 

Pleading Guilty 

If you decide to plead guilty, you have the opportunity to say something in your defence. This is called a “Plea in Mitigation.” This explains the circumstances in your favour that the court should take into account – and why they ought to apply the minimum penalty, rather than a higher one. 

A lawyer can help prepare, obtain documents which support your side, and present a plea in mitigation on your behalf, so you don’t have to speak. They can help put your best case forward, to obtain the best possible result by putting your actions in perspective. 

Even if the Court imposes a driver’s license disqualification, you still have options. If you need a driver’s license for work or to care for your family, you can apply for an Extraordinary Driver’s License.  

 

Are you eligible for an Extraordinary Driver’s License ? 

If you get a driver’s license disqualification, you can apply to get an Extraordinary Driver’s License (EDL). The grounds for applying for an EDL are primarily based around the need for a driver’s license to earn an income and look after your family. 

There is always a waiting period for at least a 21 day, often longer, before you can apply, and it will always take at least two weeks for an Application to be heard, so it will always take at least a month before you can get an EDL, after your license is disqualified. The waiting time before you can apply is longer especially for drink driving and drug driving offences, see s28 of the Road Traffic (Authorisation to Drive) Act 2008 (WA); 

Finally, when you apply, you’re not guaranteed to get an extraordinary driver’s license. A lawyer can assist you in preparing your application to give you the best chance in being awarded an EDL.

 

Please contact our Office today on (08) 9408 5212 to discuss your traffic offences.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au