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habitual offender lawyer

Habitual Offender Legislation changes

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For many years it wasn’t uncommon to be approached by convicted traffic offenders who had been disqualified by the courts for significant periods. Sometimes in the vicinity in excess of 10 years. In addition to the person serving their period of disqualification they then received a further 5 years from the RMS pursuant to the Habitual Offender legislation.

A glimmer of hope for those serving a lengthy disqualification periods

In recognition of the problems that excessive disqualification periods caused, the government in NSW brought in amendments, which came into force on 28 October 2017. In essence the amendments can be potentially utilised once two years of the disqualification period has been served in some instances and four years in other instances. Further the power to be declared by the RMS to be a habitual offender and have a further period of 5 years imposed on your disqualification was abolished. Though drivers who have been declared habitual offenders prior to the amendments and had a further period added to their time off the road can seek to have the order quashed in the Local Court.

 

In relation to people who have been given lengthy disqualifications by the court, under the amendments, if they have served the relevant period of disqualification may go about making an application to the court to have the balance of the disqualification removed. There are however numerous matters, which could preclude the ability to successfully, apply to the court for the removal of the disqualification. Accordingly a careful analysis of each individual case would have to take place.

 

If all of the above are satisfied the process that must take place involves:

 

  • A preliminary application being completed with the Road and Maritime Services (Transport NSW).
  • Once the RMS has reviewed and deemed the person eligible they will forward a copy of your driving record and an eligibility status letter.

 

A person is then eligible to file an application with the court.

 

The court at a hearing will consider whether an applicant is eligible as referred to above and whether the applicant has been convicted of a driving offence committed during the relevant two or four year period of disqualification. The court if satisfied has discretion to remove the balance of the disqualification. In exercising this discretion the court must take into account the following:

 

ROAD TRANSPORT ACT 2013

 

221B Local Court may remove licence disqualifications after relevant offence-free period

 

2) The Local Court must take into account the following in determining whether it is appropriate to remove the licence disqualifications—
(a) the safety of the public,
(b) the applicant’s driving record (including the record before the relevant offence-free period for the applicant and the record for driving offences and other offences under the road transport legislation and for pending proceedings for alleged driving offences),
(c) whether the applicant drove or was in a position to drive a vehicle during the relevant offence-free period for the applicant,
(d) any relevant conduct of the applicant subsequent to the licence disqualifications,
(e) the nature of the offence or offences giving rise to the licence disqualifications,
(f) any other relevant circumstances (including, without limitation, the impact of the licence disqualifications on the applicant’s capacity to carry out family or carer responsibilities or on the applicant’s capacity to travel for the purposes of employment, business, education or training, the applicant’s health and finances and the availability of alternative forms of transport),
(g) any other matter prescribed by the statutory rules.

 

If the court exercises it’s discretion in the Applicant’s favour the disqualification will be removed.

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