Criminal Law News & Current Affairs

By Peter Woodhouse


Driving whilst tired? An awakening on the laws of dangerous driving.

Today marks the start of another long weekend.  On weekends like this and as the weather warms, Australians (and Canberrans in particular) will take to the roads and flock to the coast.


We are all aware that double-demerit points apply on long-weekends to speeding, seatbelt offences and offences relating to the use of mobile telephones whilst driving.  There are well-understood reasons for their application and although we all hate the double-demerit points, we understand they are aimed at limiting the risk to road users during times of particularly heavy road use.  If people speed or drive whilst distracted, they are more likely to be involved in a collision and if they are in a collision and are not wearing a seatbelt, they are more likely to be killed or seriously injured.


For similar reasons, if a collision occurs and somebody is killed or injured and the driver was under the influence of drugs or alcohol, driving with excessive speed or with a significant degree of negligence that driving is considered to be ‘dangerous driving’ (called ‘culpable driving in the ACT) and would result in charges of dangerous driving causing  death or grievous bodily harm.


For obvious reasons, such offences are treated very seriously by the Courts and will almost always result in a sentence of immediate imprisonment upon conviction.  In NSW, a charge of dangerous driving causing death carries a maximum penalty of 10 years imprisonment.  In the ACT, the equivalent charge of culpable driving causing death carries a maximum penalty of 14 years imprisonment.


To most people, nothing said so far is particularly surprising.


Something perhaps a lot of readers will not be aware of is that there is another category of ‘dangerous driving’ that is less obvious, but carries the same very strict penalties of causing death or serious injury to someone when you are drunk driving or speeding excessively – and that is continuing to drive whilst tired.


The law in Australia in this area is pretty well-settled.  If you suddenly nod-off without any warning and the resulting accident causes the death or serious injury to another person you are taken to not be in control of your motor vehicle at the time and should (provided you are well-represented) escape punishment.


However it is a very different story if you are aware of your tiredness and continue to drive regardless.  If you take off on a journey without proper sleep, after a long day of work or decide to continue driving despite your fatigue your driving is likely to be dangerous. That is because it is the period of driving immediately before the sleep that is examined in order to assess the dangerousness.  A driver’s knowledge of the risks of sleep and continuing to drive anyway is likely to be the determining factor.


There has been a fair amount of research on the dangers of driving whilst tired in the last 20 years or so and when you look at the statistics, the reasons for taking tired driving so seriously are obvious and pretty confronting.


About 20% of fatal motor vehicle collisions involve driver fatigue and most accidents occur at night or in the early hours of the morning.  The reaction speed (that is the time it takes to perceive and then react to a risk) of a tired driver is impaired in a similar way as the reaction speed of a drunk driver or person under the influence of a drug.  A person who has been awake for 17 hours has the same chance of having a collision as a person with a blood alcohol content (BAC) reading of 0.05 and therefore twice as likely to have an accident.  A person who has been awake for 24 hours will have a driving performance similar to a person who has a BAC of 0.1 and therefore seven times more likely to have an accident.


When you set off on your next road-trip it is important that if you consider yourself fatigued you take an appropriate break until you are safe to drive.  If you find yourself involved in a serious motor vehicle collision, the consequences can be very serious, and it is important you contact one of Aulich’s experienced criminal lawyers immediately and before you speak with police to ensure your interests are best protected.