Your driver’s licence is probably one of your most valuable assets. When it is at risk, we can help. Work licence applications, special hardship orders, drink driving offences and the removal of disqualification are matters in which we can assist.
How can a drunk driver apply for a licence allowing them to drive for work?
Officially called Restricted Licences, these allow some disqualified drunk drivers to stay on the road to earn their living. Not every offender is eligible. To apply for a Restricted Licence the driver must have:
- A provisional or open Queensland driver’s licence;
- A blood alcohol reading of less than 0.15%;
- Not been charged with the more serious offence of driving under the influence;
- Not been subject to a zero alcohol limit;
- Not been driving in the course of their employment at the time of the offence;
- Been driving a vehicle authorised by the licence at the time of the offence;Not been already on a restricted licence at the time of the offence;
- No disqualifications or cancellations within the past 5 years (some suspensions will also rule out an application); and,
- No convictions for drink driving or dangerous driving within the past 5 years.
A court will order a restricted licence only if satisfied that:
- The driver is a fit and proper person to hold a restricted licence; and,
- Without the restricted licence the driver or the driver’s family would suffer extreme hardship caused by depriving the driver of the means of earning their livelihood.
The conditions of the restricted licence allow driving for work purposes, but not for any other reason. For example, the driver may only be allowed to drive on certain days of the week, or between certain hours.
If a driver with a restricted licence drives outside the conditions, then they commit a serious offence and lose their licence for at least an extra 3 months. The conditions are enforced strictly. For example, in the case of Paraone v Fisher the driver stopped at a shop on his way home from work. He was found guilty of driving outside his conditions. The court held that the conditions were broken the moment he turned into the driveway of the shop.
The procedure for obtaining a restricted licence involves the driver submitting written evidence to the court, in the form of an affidavit. The driver may also be required to enter the witness box and answer questions asked by the prosecutor. An affidavit is also required from the driver’s employer, unless the driver is self-employed.
A driver who applies for a restricted licence may usually continue driving until the date of their court hearing.
The grant of a restricted licence is a factor that the court must take into account in deciding how long the disqualification period should be. However, that does not mean that the court must impose a longer disqualification. The minimum period of a restricted licence is 1 month.
Some drug driving offenders may also apply for a restricted licence. Those charged with an offence of having a drug present in blood or saliva may be eligible. Those charged with the more serious offence of driving under the influence of a drug will not be eligible.
Traffic Matters – Special Hardship Orders
How does a driver suspended for too many demerit points apply for a licence allowing them to drive for work?
A Queensland driver with an open licence may accumulate up to 11 demerit points in any 3 year period. If they reach 12 points, then a letter will be sent to the driver asking them to make a choice. They must choose between:
- A suspension for 3 months (or even longer for more points); or
- A one point good behaviour period for one year.
Drivers who need their licence in order to work almost always choose the good behaviour period.
What happens then if, during the good behaviour year, the driver commits a traffic offence worth more than 1 point? Usually, they will lose their licence for at least 6 months. However, some drivers may be able to apply for a Special Hardship Order to keep them on the road.
To apply for a Special Hardship Order, the driver must have:
- an open or provisional Queensland driver’s licence;
- not been suspended, disqualified or cancelled within 5 years (not all suspensions count for this purpose);
- not been convicted of dangerous driving within 5 years.
An application for a Special Hardship Order is made to a Magistrates Court. Any application must be filed within 21 days after the licence was suspended.
Until the day before the case is heard in court, the driver will be able to continue driving, if the application is properly filed with the Court, and properly given to the Department of Transport and Main Roads.
The court will grant the Special Hardship Order only if satisfied that:
- the driver is a fit and proper person to continue to drive; and,
- without the order, the driver or the driver’s family would suffer extreme hardship caused by depriving the driver of the means of earning their livelihood; or,
- without the order, the driver or the driver’s family would suffer extreme hardship in some other way.
The procedure for applying involves the driver submitting written evidence to the court, in the form of an affidavit. The driver may also be required to enter the witness box and answer questions asked by the prosecutor. An affidavit is also usually required from the driver’s employer, unless the driver is self-employed.
The conditions of the order may allow driving for only some purposes. For example, the driver may only be allowed to drive on certain days of the week, or between certain hours.
If a driver under a Special Hardship Order drives outside the conditions, then they commit an offence and lose their licence for at least an extra 3 months. The conditions are enforced strictly. For example, in the case of Paraone v Fisher the driver stopped at a shop on his way home from work. He was found guilty of driving outside his conditions. The court held that the conditions were broken the moment he turned into the driveway of the shop.
A driver may also apply for a Special Hardship Order if convicted of speeding by more than 40 km/h over the limit.
Drink Driving Offences
A Queensland driver on a learner, provisional , probationary or restricted licence must observe a no alcohol limit. This means what it says. Zero.
A driver on a Queensland open driver’s licence must not drive with a blood alcohol concentration of more than 0.05% (the general alcohol limit).
The middle alcohol limit is 0.10% and the high alcohol limit is 0.15%. Breaching these limits increases the severity of penalty, and the length of the disqualification period. Exceeding the high limit also rules out applying for a restricted work licence.
Drink driving is an offence for which the offender can be imprisoned. For example, the maximum penalty for a first time offender on an open licence, over the general limit, is 3 months in jail. However, first time offenders are rarely sent to prison. The usual penalty is a fine of several hundred dollars.
Drivers facing a third drink driving conviction are at very serious risk of being sent to jail.
Every drink driving offence carries a mandatory period of disqualification from holding a licence. The minimum period is one month – for a driver with no previous drink driving convictions, an open licence, and under the middle limit (that is, between 0.05% and 0.10%). Higher mandatory periods apply to drivers on other licences, who have previous convictions or who have higher blood alcohol readings. In serious cases, a driver can be disqualified absolutely; that is, for life.
Every drink driver will therefore lose their licence and be unable to drive for some time, unless they obtain a restricted work licence.
Drink driving offences in Queensland are criminal offences. Although driving offences are usually recorded on a person’s traffic history, a conviction for a drink driving offence is still a conviction for a criminal offence. It is something that must often be declared on applications (for jobs, visas, other types of licence etc) in answer to the question, “Have you ever been convicted of a criminal offence.” It can therefore be important for many drivers to ask the court not to record the conviction.
In Queensland, a conviction that is not recorded is taken not be a conviction for any purpose (unless specified by an Act of Parliament). The law in relation to whether a conviction should be recorded is the same for drink driving offences as it is for any other criminal offence. Yet in practice in drink driving cases it is often more difficult to persuade the court not to record a conviction. The important questions are:
- How serious was the offence?
- What is the driver’s age and character?
- What impact would recording a conviction have on the driver’s economic or social well-being or chances of finding employment?
The court will sometimes expect concrete evidence that a conviction will harm employment prospects. You often need to demonstrate something more than it is “a bare possibility”. However sometimes, particularly for young offenders, and even if there is no direct evidence, it is a matter of obvious common sense.
Removal of Disqualification
How can a disqualified driver apply to get their licence back?
Any driver in Queensland who is disqualified for more than 2 years can apply, after 2 years, for the disqualification to be removed.
The application must usually be made to the same court that imposed the disqualification. In practice, the decision will often be made by the same judge or magistrate who made the original order.
The Court will consider the steps the disqualified driver has taken to rehabilitate themselves, any change in their attitude, and the risk to the public generally. Usually, the disqualified driver will put evidence before the court in writing, in the form of affidavits.
If the application is refused, the disqualified driver must wait at least another year before re-applying.