by Jones + AssociatesWhat are Your Rights under Criminal Law?
Thanks to TV shows and pop culture, many people believe they understand how the criminal justice system works. Police shows, procedural dramas and legal adaptations tend to create a false sense of familiarity with the criminal justice system in the average person. But while loose cannon cops and lawyers who bend the rules make good television fodder, they have very little in common with the realities of police-work and legal professionalism. If you find yourself caught within the criminal justice system, it is important to remember that you have rights.
Arrest
When being arrested, there are three procedural steps that officers are required to follow. The officer must tell you that you are under arrest and briefly explain why, and you must either voluntarily surrender to the officer or you will be taken into custody through force. Police in Queensland do not have to “read you your rights”, and though you do have the right to remain silent, you are still required to inform the arresting officer of your name and address in order to avoid additional charges. Once arrested, you will escorted by the arresting officer to a police station or watch-house to be processed and await court or given bail.
Warrants
The police are not required to have a warrant in order to arrest you. If they have a reasonable suspicion that you are breaking the law, have broken the law, or are about to break the law, they have the power to arrest you as a reasonable necessity, because of the type or seriousness of the offence, or in order to:
- stop you from breaking more laws;
- discover your identity;
- ensure a court appearance;
- obtain or retain evidence;
- prevent the creation or destruction of evidence;
- prevent witness harassment or interference;
- protect your safety and the safety of others;
- prevent your escape; or
- hold you for questioning.
The threshold for demonstrating reasonable necessity is generally low and the police will likely be allowed to arrest you without a warrant. It is in your best interests to calmly comply, ask for a lawyer as soon as possible, and remain silent except for providing your name and address, until your lawyer arrives.
What Are My Rights?
You have the right to remain silent and wait for the arrival of your lawyer. You cannot be formally interviewed until the police inform you that you have a right to a lawyer, a family member, or friend. Importantly, you must remember that the police are not allowed to coerce a confession out of you by making false promises or threats. As mentioned above, the police must inform you that you are being arrested and explain to you why.
Additionally, you have the right to go to court for a bail application at the earliest reasonable opportunity, and if you are not taken straight to court, you have the right to ask the police for bail. Remember that without an arrest you do have the right to refuse a request to come to the police station, but be careful to handle the situation calmly and respectfully or else risk an actual arrest or additional charges.
Being Arrested for Questioning
When the police have a reasonable suspicion that you have committed an indictable offence, they are able to detain you for a reasonable amount of time in order to conduct an investigation and/or question you about the offence. Police may detain you for up to eight hours, but can only question you for four hours out of the eight. If they want to keep you longer, the police must petition a magistrate or justice of the peace to question you for a further period. During this time period, you still have the right to remain silent after sharing your name and address.
We are here to help
At Jones + Associates, we are dedicated to securing the best possible outcomes for our clients. Contact us criminal lawyers Brisbane today.
by Jones + AssociatesThe Drink Driving Guide
As statistics graphically illustrate, drink driving remains an international problem. According to a World Health Organization (WHO) report, in 2015 more than 50% of all traffic deaths on South African roads were attributed to alcohol consumption. In the same year, drinking and driving also contributed to more than one-third (34%) of all road deaths in Canada, 31% of all motor vehicle fatalities in the United States and 30% of all fatal road accidents in Australia.
In the report’s Executive Summary, however, the WHO also notes that the adoption and enforcement of “good laws” is “effective in changing road user behaviour on key risk factors for road traffic injuries”, including drink driving. And to that end, authorities throughout Australia continue to crack down on motorists that engage in the dangerous activity.
With that in mind, here’s what you should know about the consequences of drink driving in Queensland.
If you are caught, you will receive a summons to appear in the Magistrates Court closest to where the offence occurred. The Magistrate will make a determination about the penalties, which range from a fine and disqualification to imprisonment. The type of punishment imposed will depend on several factors including:
- Your breath or blood alcohol concentration at the time of the offence;
- your driving record (traffic history);
- whether you have any prior convictions for drink driving.
The four blood alcohol concentration limits used in Queensland
In Queensland, four classifications pertaining to blood alcohol concentration are used to determine which penalty or penalties will be imposed for a drink driving offence. These are: the no alcohol limit, 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).
The no alcohol limit prohibits certain drivers from having any alcohol in their blood at all while operating vehicles on Queensland roads. This applies to you if you are a learner or if you have a P1, P2 or a restricted licence (regardless of your age). It also applies to anyone driving a truck, taxi, limousine, tow truck or tractor.
The commission of a DUI offence of drink driving while over the no alcohol limit usually results in the disqualification of your ability to obtain or hold a Queensland driver’s licence for at least three months upon conviction. Furthermore, you are ineligible to apply for a drink driving work licence if a Magistrate finds you guilty of this offence.
The general alcohol limit, which is a blood alcohol concentration of 0.05%, applies to most Queensland drivers. Specifically, it applies to anyone who has a valid Queensland driver’s licence and is exempt from the no alcohol limit.
If you are convicted of a DUI drink driving offence in which your blood alcohol concentration exceeds the general alcohol limit, your ability to obtain or hold a Queensland driver’s licence will automatically be disqualified for at least one month. However, you may be able to apply for a drink driving work licence if you meet certain criteria.
There are more serious consequences upon conviction for a DUI drink driving offence when your blood alcohol concentration exceeds the middle alcohol limit, or 0.10%. In this case, your ability to obtain or hold a Queensland driver’s licence will be disqualified for at least three months, but you may be able to get a drink driving work licence.
Finally, if your blood alcohol concentration exceeds the high alcohol limit of 0.15% when you are behind the wheel, you will be charged with the most serious DUI drink driving offence.
Because there is a legal assumption that you are under the influence of alcohol or liquor based on the extreme reading in these circumstances, this offence is sometimes called “driving under the influence of liquor” (or “UIL”).
Conviction for this type of offence brings the harshest penalties, beginning with a disqualification of your ability to obtain or hold a Queensland driver’s licence for at least six months. Since there is no maximum period for disqualification, your licence could be disqualified for a year or more, depending on your specific circumstances. If this isn’t your first conviction, you may even face probation, community service or jail time. In any case, you will not be able to get a drink driving work licence.
Understanding the drink driving ‘ranges’
If you are charged with “low-range drink driving” in Queensland, it means your blood alcohol concentration (“BAC”) was above the general alcohol limit (0.05%) but below the middle alcohol limit (0.10%).
A low-range drink driving conviction brings a maximum penalty of three months imprisonment and/or a 14 Penalty Unit fine for a first offence.
If you commit and are convicted of a second offence within five years, you face up to six months imprisonment and/or a 20 Penalty Unit fine. Conviction for a third or subsequent offence within five years brings a maximum penalty of nine months imprisonment and/or a 28 Penalty Unit fine.
As we have already noted, you will be unable to obtain or hold a Queensland driver’s licence if you’re convicted on this type of drink driving charge. The length of your disqualification can range from one to nine months for a first offence, and three to 18 months if you’re convicted for a second and/or subsequent offence.
If the Magistrate imposes more than one period of disqualification (which may happen if you’re a repeat offender), you must serve these cumulatively. In other words, one term won’t begin until the previous term ends.
You should also be aware that if you have multiple convictions for low-range drink driving, you must have an Alcohol Ignition Interlock device attached to your nominated vehicle for 12 months once you regain your driving privilege.
If Queensland authorities catch you driving a vehicle with a BAC greater than the “middle alcohol limit” (0.10%), but below the “high alcohol limit” (0.15%), you will likely be charged with “mid-range drink driving.” This is the second most serious drink driving offence under Queensland law, punishable by a maximum of six months imprisonment and/or a 20 penalty unit fine for a first offence.
The commission of and conviction for a second mid-range drink driving offence within five years can also result in up to six months imprisonment and/or a 20 penalty unit fine. However, the commission of and conviction for a third or subsequent offence in that period brings a maximum penalty of nine months imprisonment and/or a 28 penalty unit fine.
When you’re convicted of a mid-range drink driving offence for the first time, the Magistrate will automatically disqualify you from holding or obtaining a Queensland driver’s licence for three to 12 months. Repeat offenders face immediate disqualification for three to 18 months.
The stipulations that apply to multiple disqualification periods and Alcohol Ignition Interlock devices for low-range drink driving convictions also apply to mid-range drink driving convictions.
Lastly, if you have a BAC greater than 0.15% percent or the “high alcohol limit” while behind the wheel, you will be charged with “high-range drink driving”. As we have already noted, this is the most serious drink driving offence under Queensland law. As such, the maximum penalty upon conviction is nine months imprisonment and/or a 28 Penalty Unit fine – and that’s just for a first offence.
The maximum penalty for a second, or subsequent, offence within five years is 18 months imprisonment and/or a 60 Penalty Unit fine. Furthermore, Queensland law mandates that a sentence that “includes imprisonment” is imposed if you are convicted of a third, and any subsequent, offence within five years of the first. While this doesn’t necessarily mean that you will serve out your entire jail sentence, it is likely that will be the case.
Whenever it finds someone guilty of high range drink driving, a court must disqualify them from holding or obtaining a Queensland driver’s licence for at least six months for a first offence; at least one year for a second; and at least two years for any subsequent offences. Although it rarely does so, the Magistrate (or Magistrates Court) is also authorised to disqualify someone absolutely (meaning they can never hold or apply for another Queensland driver’s licence) – even for a first high range drink driving offence.
The stipulations pertaining to multiple disqualification periods for low-range and mid-range drink driving offences also apply to those resulting from high-range drink driving offences.
If you’re convicted of high-range drink driving, you must also have an Alcohol Ignition Interlock device affixed to your nominated vehicle for 12 months after your licence is restored.
Understanding what affects your blood alcohol concentration
Clearly the easiest way to avoid running afoul of Queensland’s drink driving laws, and to avoid hurting or killing yourself or others, is to refrain from having any alcohol at all when you know you will be driving. If you insist upon having “one or two drinks” with family or friends, it is also important that you understand the factors that can affect the way in which your body processes alcohol – and therefore your BAC. These factors include but are not limited to your:
- Age
- Drinking habits (consumption)
- Gender
- Body type
- Medication
- Fitness
The amount of alcohol in the adult beverage(s) you’ve consumed, whether or not the beverages are carbonated, and whether or not you’ve eaten can also influence your BAC.
Seeking legal assistance
Being charged with any drink driving offence in Queensland is a serious matter. With your driving privileges and even your freedom potentially at stake, you should never leave anything to chance. Contact our DUI Lawyers Brisbane for legal advice and representation today.
by Jones + AssociatesWhat You Need to Know About Search Warrants
Though TV crime dramas like to glorify the loose cannon cop who doesn’t “play by the rules” and will break down a door in a heartbeat, in reality there are protections in place to shield citizens from such reckless behaviour by police. Below, you can find a brief overview of searches, both with and without a warrant, as well as the definition of some important terms. If you are in need of advice regarding a search matter, please contact a Brisbane Criminal Lawyers today and protect your rights.
Home Searches
Right to refusal: Police in Queensland do not have an automatic right to enter your home. If you are refusing them entry, state clearly that you are not inviting them in nor do you consent to any officer remaining on any part of your premises. It is important to keep calm and treat the officers with respect, as anything you say may be used as evidence against you later. Also, make note of any witnesses so that there are other stories to support your claim that you refused police entry.
Police entry without warrant: Though you generally have the right to refuse police entry on your property, there are situations where they will be able to enter without a warrant and without your consent. For example, an officer may enter your home when: handing over a legal document; in an emergency; testing blood alcohol content after a traffic incident; pursuing an escapee; searching for evidence that is in danger of being hidden or destroyed; executing an arrest; reaching a crime scene; or in the event of an anti-terrorism order. These reasons need to be based on “reasonable belief” and within a “reasonable time” (see definitions below).
Police entry with a warrant: A warrant will allow police the right to search your property. Always ask to see the warrant, read through it carefully. The police will then be allowed a reasonable amount of time to conduct their search and have certain powers: detaining those present; removing wall, floor, and ceiling panels; taking pictures; digging and searching those present.
Informal police interviews: It is important to not answer any questions asked while the search is underway, as anything you say can be used against you as evidence.
Searches of your person or vehicle: Police have no automatic right to search you or your vehicle without cause. The officer will be allowed to conduct a search if they have a reasonable suspicion that you have a weapon, illegal drugs or drug paraphernalia, stolen property, contraband, graffiti tools, tools of theft, something you are intending to use to harm yourself or another, evidence of public drinking, or evidence of any offence punishable by at least seven years of jail-time.
Police requirements: When conducting such a search, police must treat you with respect and follow certain guidelines. You should not be searched in the presence of security cameras, and if any clothes are seized for evidence you must be provided alternate pieces of clothing. If and when the search is in public, the officer must strive to cause you the least amount of embarrassment and limit the search to a frisk if possible. More invasive searches should be conducted in private and, unless an immediate search is required, searches should be conducted by an officer of the same sex.
Computers and mobiles: You are allowed to refuse a request to search your computer or mobile phone and police will have to acquire a warrant to conduct this search. However, the police may seize these items in the interim to prevent tampering or deletion of evidence.
Definitions
“Reasonable Time”: The amount of time required to ask questions and make reasonable observations or investigation.
“Reasonable Suspicion”: Most courts agree that a reasonable suspicion can be assumed when there is presence of some fact that would make a reasonably minded person believe the same thing. An important note is that a suspicion does not need to be right but merely reasonable.
by Jones + AssociatesHelp with drug charges & rehabilitation for you or your loved one
Drug Charges & Rehabilitation
Over the last 4 years, Jones + Associates have utilised their unique relationship with other organisations to assist drug offenders obtain the best possible results when sentenced by Queensland Courts.
When sentencing offenders, courts must take into account various factors. Importantly, courts look to the efforts an offender has made to address the issues at the heart of their offending behaviour. Courts look favourably upon offenders who have taken a proactive approach to addressing the issues that contributed to their offending, whether it be drug or alcohol addiction, mental illness or another concerns.
Jones + Associates’ unique relationship with a well-known not for profit organisation enables us to provide clients with access to a ‘rehabilitation co-ordinator.’ Co-ordinators use their wealth of experience and knowledge to refer clients to a range of targeted support services. Through a personalised rehabilitation plan, clients are able to identify and begin to address issues specific to their offending. This targeted support not only assists clients in their personal development but also provides courts with definitive evidence of their rehabilitative efforts.
Jones + Associates have represented many clients with a background of illicit substance abuse or other personal issues for sentencing before the District and Supreme Courts. The assistance provided by our ‘rehabilitation co-ordinators’ has proved to be a significant factor in these clients either avoiding prison time altogether or reducing the usual sentence. Our results speak for themselves.
It has often been commented upon by Judges the significant and impressive nature of our clients rehabilitative efforts, particularly those undertaken with the support of our rehabilitation strategy.
Should you or a loved one find themselves charged with a criminal offence and have an underlying personal issue to address, you should contact a member of Brisbane Criminal Lawyers at Jones + Associates to not only provide you with the best legal representation available but also access to the support required to address your personal circumstances.
What Do The Next Step?
Contact our experienced Brisbane drug lawyer or fill out an online contact form to hear back from a member of the criminal lawyer’s team today.
by Jones + AssociatesDo the Police Need a Search Warrant?
Search warrants. Anyone who has watched a crime drama on television is familiar with the concept: police officers charging into a home on the authority of a piece of paper. Or, if it’s a slightly more exciting plot, loose cannon detectives throwing caution to the wind and opting to commit a search without a warrant…creating problems for the lawyers later on in the episode.
But in the real world, what does a search warrant actually entail? And when do the police need one to perform a search? Below we cover some of the most frequently asked questions about search warrants in Queensland.
What is a Search Warrant?
In Queensland, the police generally do not have the right to search a person or premises (though exception do apply and are outlined below). However, if the officers obtain a search warrant they will be allowed to both enter the premises and search therein.
A search warrant is a written order issued by a judge or magistrate that grants police the authority to enter and search a premises at a specified date and time for the narrow purpose of seizing specified evidence which is believed to be connected to the commission of a crime.
Searching a Residence
The police may try to enter a residence in order to conduct a search in order to obtain evidence relating to a crime. If the police are allowed to enter the premises and commit a search, then it is best for you to not answer any questions as any statements (including confessions) that you make may be used against you.
With a Warrant
If the police have a warrant, you should first ask to see it and then insist on receiving a copy of the warrant. Pay attention to the details and make note of anything that seems incorrect. Even with a warrant, the police may only stay as long as is reasonably necessary to complete the task outlined in the warrant. When entering the property, the police must also provide you with a list of their powers under the warrant, possibly including (but not limited to):
- Removing wall, floor, or ceiling panels when searching for evidence
- Photographing possible evidence
- Digging
- Seizing your property as evidence
- Opening locked safes, cupboards, chests, filing cabinets, etc.
- Detaining or searching individuals on the premises to determine if they have anything detailed on the warrant.
If your property is damaged by a police search authorized by a warrant which allows forced entry and they find drugs or evidence of an offence, then you probably won’t be compensated for the damage. However, if no evidence is produced, you should contact the senior police officer to file an official complaint.
Without a Warrant
If the police do not have a warrant, you can usually refuse them entry. If you refuse them entry, do so respectfully by clearly stating that you are not inviting them in and do not give your consent for them to remain on the property.
However, there are times when Queensland police can enter a property without a warrant or your consent, including:
- To arrest a person they reasonably suspect is located on the property
- To conduct a breathalyzer test
- To serve legal documents or notices
- When there is a seriously injured person on the premises
- To search for evidence that they reasonable suspect will be otherwise destroyed or hidden
- To reach a crime scene
- To detain someone under an anti-terrorism preventative detention order.
When they enter without a warrant for any of these reasons, they are only permitted to do so for the reasonable amount of time it would take them to perform the action or serve the document. If they are entering sans warrant to arrest or detain someone, the officer must have a reasonable suspicion that the person is actually on the premises. Reasonable suspicion, like reasonable time, is fairly subjective. But most courts agree that there needs to be some fact which would cause a reasonably minded person to conclude something.
Searching Your Person, Belongings, or Vehicle
Though the police are not automatically authorized to conduct a search of your person, belongings, or car, they may do so (even without a warrant) if they have a reasonable suspicion that any of the following items are in your possession:
- Weapons
- Illegal drugs or paraphernalia
- Stolen property
- Graffiti instruments
- Housebreaking or car stealing instruments
- Something you intend to harm yourself or others with
- Evidence of drinking alcohol in a public place
- Evidence of either willful damage or an offence punishable by 7 years jail-time.
If a police officer may legally search you, then the searching officer must be of your same sex, respect your dignity, and limit the scope of the search as much as possible. In the case of a strip search the police may not search your body cavities and respect your privacy.
Cellphones/Computers
In Queensland, the search warrant must specifically state that the search is meant to include your computer or cellphone. If it does not, then you have the legal right to refuse access. If it does, then you are legally required to provide the necessary passwords and facilitate access as best you can.