FAQ – Criminal Defence

What are my rights if I’m approached by police?

If you are approached by police there are certain things that you have to tell them, on the other side of the coin there are a lot of other things that you do not have to tell them. It is very important to know what you do and don’t have to tell the police. It is very much like the old Kenny Rogers song, “know when to hold ‘em and know when to fold ‘em and definitely know when to walk away”.      

The police are permitted to approach people and ask them questions at any time, as anyone else in the community can do. Whether that person has to provide the police with the answers to their questions is a different story. If you are approached by the police you should provide them with your name and address and then contact a solicitor if you are concerned about their questions.

You must tell the police your correct name and address when asked by a police officer. The police must warn you that it is an offence for you not to tell them your correct name and address.

In car accidents and other traffic offence the police have broader powers to obtain information from people, however, generally once you have told the police your name and address you are able to remain silent.

When do police record conversations?

It is important to remember that police are usually recording everything that is happening around them. The police often have audio recorders in their shirt pockets and more and more often front-line police have body worn cameras on their shirts also. Because of this police are usually recording any conversation you have with them.

This is not just at the police station; this is whenever and wherever you are talking to a police officer. There is no such thing as “off the record” when it comes to the police so do not be fooled into believing that there is.

Do I have to answer all the police’s questions?

In short, no, you do not. However, there is certain information that you do need to tell them including your correct name and current address. The police must warn you that it is an offence for you not to tell them your correct name and address.

In car accidents and other traffic offence the police have broader powers to obtain information from people, however, generally once you have told the police your name and address you are able to remain silent.

There is nothing wrong with asking the police officer whether you have to answer their question or whether you have to let them do something to you or your property such as searching your vehicle. There is nothing wrong with asking the police officer if you can refuse their request.

Always remember that you should never answer any questions that you don’t have to answer. There is absolutely nothing that you can say in that moment that will help you in Court later on, so be quiet and do not try and talk your way out of the problem. Trying to talk your way out of the problem can only harm your prospects later on, so it is best for you to stay silent, go home, think it over, seek legal advice as soon as you can after being intercepted and then, once armed with all of that information decide what your best approach is from there.

What is a Notice to Appear?

If the police have decided to charge you with a criminal offence, they will issue you with a Notice to Appear.

The Notice to Appear is a small paper slip that usually has handwritten information on it including, your personal details, the details of the charge/s you have been issued, when you have to appear in Court, which Court you have to appear in and the arresting officer’s details.

The slip will be written by the arresting officer in a carbon copy booklet. Each Notice to Appear is done in triplicate. The officer will provide you with one copy and keep the other two.

If I’ve been given a Notice to Appear do I have to attend Court?

Yes. If you have been given a Notice to Appear you must attend the Court listed on the Notice on the date and at the time wirtten on the slip.

If you fail to appear then a warrant is likely to be issued for your arrest and you will be charged with Failing to Appear.

If for some reason you cannot appear you should contact the Courthouse to let them know.

What is a Notice to Provide Personal Particulars?

A Notice to Provide Personal Particulars is a Notice issued by the police usually with the Notice to Appear.

The Notice to Provide Particulars gives you 7 days to report to your local police station so that they can take your photograph, fingerprints and a DNA sample.

If you fail to attend within the 7 days provided then you are likely to be charged with an offence for failing to provide your particulars.

Drink Driving Offences

What happens if I’m caught drink driving?

If you are caught drink driving in Queensland, you will be provided with a Notice to Appear in the closest Magistrates Court to where the police intercepted you.

You will be processed by the police and required to attend Court on the day allocated in the Notice to Appear. The Magistrate with decide what penalty you are to be given on the day of your Court appearance. The penalties will include a monetary fine, a period of licence disqualification, and can even include a prison sentence.

How severely you are punished will depend on a number of factors. These include your blood alcohol reading at the time of interception, the length of your past traffic history and what offences are included on it, and any previous drink driving convictions you have had.

The penalties for drink driving offences are governed by the Transport Operations (Road Use Management) Act 1995 which is commonly referred to as TORUM. There are four alcohol limits in Queensland. Where your reading sits within these limits will affect the severity of your penalty. The four alcohol limits include the no alcohol limit (0.00), the general alcohol limit (0.05 to 0.09), the middle alcohol limit (0.10 to 0.149), and the high alcohol limit (over 0.15).

Will my drivers’ licence be suspended Immediately?

If your blood alcohol reading is less than 0.10 when you’re intercepted then, once processed you will be issued with an automatic 24 hour licence suspension. Once this lapses you will be able to drive again until your Court date.

The police are able to also issue you with an immediate suspension of your licence, this suspension will remain in place until your matter is finalised by the Court.

The police will immediately suspend your licence if you have committed a low range drink driving offence (0.05 to 0.09) while you have another, prior, drink driving offence still being finalised in the Courts. The police will also immediately suspend your licence if you have been charged with mid (0.10 to 0.149) or high (over 0.15) range drink driving on this offence, or you fail to provide breath or blood sample for analysis, or you are charged with dangerous driving in conjunction with a drink driving offence. This suspension will remain in place until your matter is dealt with by the Court.

The Court is unable to use the time between you being charged and the matter being finalised by the Court as “time served”, so it is best to have the matter dealt with, by the Court, as soon as you are able to.

What will happen if it’s my first time being caught drink driving?

What type of licence you are on, your blood alcohol reading, your age, your prior traffic history and any other aggravating circumstances (whether you crashed your car) will all play a part in what penalty you get for your first drink driving offence.

Even if it is your first drink driving offence, you will still have to go to Court and you will still lose your licence, even if your reading was very low (but over the limit).

If you are on a learner, probationary or provisional licence then you are not allowed to have any alcohol in your system and are considered to be on a no alcohol limit. You will be disqualified from holding or obtaining a drivers’ licence for between 3 and 9 months, a fine up to a maximum of $1,868, with a possible term of imprisonment of up to 3 months.

Any drivers, who are on an open licence, and who are caught with an blood alcohol reading of over 0.05 but under 0.09, is considered to have committed a low range drink driving offence. The Court has the discretion to disqualify their licence for between 1 and 9 months, they can issue a fine of up to $1,868, with a possible term of imprisonment of up to 3 months.

If you are on an open driver licence and are charged with a mid-range offence, being that you have a blood alcohol reading of between 0.10 to 0.149. You will be disqualified from holding or obtaining a driver licence for a period of between 3 and 12 months, with a maximum fine of $2,669, with a possible term of imprisonment of up to 6 months.

Open licence holders who are caught high range drink driving, having a reading of 0.15 or greater, will be disqualified from holding or obtain a driver licence for no less than 6 months, a maximum fine of up to $3,736 and a possible term of imprisonment of up to 9 months..

It is unusual for a Magistrate to sentence a first time drink driving offender with a prison sentence, however it is within their power, and each case will be determined on its own merits. If the Magistrate believes the circumstance of a particular case warrant a penalty of a prison term, then it is within their power to order such a sentence. There are many factors that come into sentencing.

What are the penalties for repeat drink driving offences?

If you are caught repeatedly drink driving, then the Court will believe that you have no care for the law or the safety of other motorists and will sentence you to harsher penalties.

If you keep going before the Court for drink driving offence you will get harsher penalties to those who are first time offenders. They are able to be fined up to $6600, and to have their licence disqualified for up to 2 years.

If your blood alcohol reading is higher than 0.15, or you fail to provide a blood or breath sample your vehicle will also be impounded, and possibly confiscated permanently and sold by the government.

You will be considered a repeat offender if you have had a previous drink driving offence in the last 5 years.