Have you been charged with a first time offence? Are you confused by what to do, who to seek advice from or generally how to handle the situation? Seeking legal advice should be your first step. Traffic offences are a component of criminal law which requires assistance from a qualified legal expert.
What Type of Lawyer Do I Need To See?
If you have been charged with a criminal law offence then your first point of call should be seeking advice from a lawyer. Your first offence is the most critical offence because it paves the way for whether you hold a criminal history or not. It is critical to be aware of the consequences. All criminal offences are serious however some are more serious than others.
You will need to engage a legal representative who specializes in criminal law offences to assist with your matter. Your lawyer will need to understand the circumstances under which you have been charged so that they can properly advise you of the following;
Likely determination; guilty or not guilty;
Evidence that will need to be reviewed; and
Maximum penalty for your offence.
It is important that you are aware of the above before deciding how to proceed, specifically whether your best option is to plead guilty or not guilty to the offence.
Your lawyer will also help you put forward your best criminal offence to the court, i.e. I could not have been caught speeding by a camera as I was in South Australia at the time of the offence and the offence occurred in Queensland.
Traffic offences or driving offences are likely the most commonly committed offences within criminal law. The majority of society operate a motor vehicle and are subject to road traffic conditions. Most are also aware of the legal ramifications of breaking the law however consider themselves above it or untouchable. Driving offences can take many forms but some of the most common are as follows;
Driving without a valid driver’s licence;
Drink Driving offence;
Driving under the influence of drugs; and
Dangerous driving; etc
Most people can relate to at least one of those offences because almost everyone is guilty of committing a traffic offence regardless of whether they have been caught. Most people are guilty of exceeding the speed limit on occasion or not paying appropriate attention to the road, most are even guilty of losing a few demerit points, however that does not mean that we are right in doing so. Unfortunately, when we commit a crime, there are legal consequences for our actions. A traffic offence can be committed in a motor vehicle or a motor bike.
Speeding is an offence which is often written off as an insignificant legal offence. However, if you exceed the speed limit either significantly or by committing multiple subsequent offences then the penalty could be serious. Previously, penalties have been discretionary and there may have been a greater level of leniency afforded to you however, penalties are now legislated in each state’s road traffic and penalties Act. A period of disqualification is usually a guarantee for a driver.
Usually, the offence will result in a loss of demerit points and possible licence disqualification depending on how many demerit points you have left. The number of demerit points you will lose is dependent on how many km’s over the limit you were travelling. This information is usually detailed in your state’s traffic offence legislation.
Driving Without A Valid Driver’s Licence Offences and Penalties
Driving without a licence is an all too common occurrence however it is not an offence which is considered serious depending on the circumstances. If you are pulled over solely for driving without a licence then the penalty for your offence may not be as severe, however, this is rarely ever the case.
A person is usually pulled over for a subsequent offence such as driving dangerously or speeding and it is then determined that they are also driving without a licence. Nonetheless, the legal penalty for this as a first time offender is to have your licence suspended for an extended period of time (e.g. 2 years).
Drink Driving Offences and Penalties
Drink driving offences are unfortunately common offences however they are serious because a driver’s judgement is impaired when they are under the influence of alcohol. This means that an individual’s blood alcohol level has exceeded 0.05%. A drink driving offence will result in a loss of demerit points but is guaranteed usually to result in your licence disqualification. It is unusual for first time offenders to result in more serious penalties, such as terms of imprisonment.
In the event a driver is subject to a learner’s permit they are guaranteed to be disqualified from driving if they commit this offence. Drivers subject to a learner’s permit are not able to consume any alcohol while driving and must record a blood alcohol level of 0.00% if they are breathalyzed. The driver will also need to begin their licence process again. This is also true for drivers subject to a provisional licence as they too cannot hold a blood alcohol level which exceeds 0.00%.
In the event a driver commit’s high range drink driving, they may face a period of imprisonment as their penalty. The design of legal penalties for traffic offence is to deter other driver’s from committing the same offences. The term of imprisonment could be anything from 6 months to 2 years depending on the severity if convicted.
Driving Under The Influence Of Drugs Offences and Penalties
Similar to above, driving under the influence of drugs is a serious offence because it impairs an individuals ability to operate a motor vehicle. Drugs will be detected in an individuals saliva or blood depending on which test is undertaken. If a saliva test is taken then a blood test is usually undertaken to confirm the results.
The legal penalty for driving under the influence is both licence disqualification and a period of imprisonment depending on the severity of the circumstances. As a first offence, it is likely the punishment will be a period of licence disqualification and a mandatory fine. If you are caught and convicted of this offence on several occasions, your period of disqualification could be anything up to 5 years. This is because each offence will likely carry its own penalty and they add up. If you are unfortunate enough to have to start the process of getting your licence from scratch, it could take a minimum of two years for a driver to complete their learner and provisional licence obligations.
Dangerous Driving Offences and Penalties
This is a serious offence because the driver places other drivers and pedestrians at risk of injury as a result of circumstances. There is also a malicious aspect to this charge as an drivers ability to drive a motor vehicle is not impaired with this charge unless there is alcohol or illicit substances involved.
If there is no presence of these then the person is fully aware of their actions and aware of the offence they are committing. As a first offence the legal penalty will not normally be as severe depending on the circumstances however, if it is not a first offence, the maximum penalties one can receive is a term of imprisonment. Depending on the situation this penalty could be for any length of time, e.g. 2 years, 5 years, etc.
How Many Demerit Points Do I Have?
Fully licenced drivers holds 12 demerit points. If a driver loses any of these points then they will receive them back in a period of three years. If you are a driver subject to a learner’s permit or provisional licence then you only hold 4 demerit points. These points will be received back in a period of three years. It is important to note though that you will not automatically get 12 points back in 3 years time.
Drivers accrue each point back 3 years after it was lost meaning, that if you lose 2 this year but you lose 4 last year that you will earn the 4 from last year back a year earlier than the 3 you lost this year. If you lose all 12 of your demerit points, you will automatically be disqualified from driving.
What Is A Maximum Penalty?
A maximum penalty refers to the most severe punishment, allowed by legislation, (State Act) an individual can have imposed on them in relation to an offence. The minimum and maximum penalties for each offence committed are specified within the road traffic legislation for each state. The maximum penalty for any offence is a term of imprisonment.
In What Circumstances Am I Likely To Receive A Fine?
There are certain traffic offences which result in an automatic fine as punishment for drivers. These are usually speeding offences and may relate to law range drink driving offences. At the end of the day, the court seeks to avoid (as much as possible) unnecessary matters being brought to their attention. This is because the court system is already suffering from serious back log and delays and do not wish to add more pressure to the system.
The state legislation in relation to traffic offences and penalties, indicates that many matters which do end up coming before the court may also be subject to mandatory legal fines. This is certainly the case for drink driving matters as well as traffic offences relating to illicit substances.
If I Am Caught For My First Speeding Offence Will I Automatically Be Charged?
If a person has never before been charged with a speeding offence then they may be fortunate to only receive a warning if they are caught speeding. This is at the discretion of the officer and needs to consider a range of factors. Firstly, the officer will consider the manner in which the person was driving when caught (i.e. was the driving dangerous, in a school zone, posing a specific risk to a group or individual)? Secondly, the officer will need to consider what range of speeding has been committed as there is a substantial difference between 5km and 15km over the limit.
If the person is fortunate enough to receive a warning however, this is not to be taken lightly. The warning will be noted against the drivers name and licence and if they are pulled over again for speeding within the next three years they will not be able to receive another warning. If you receive a warning you will not lose any demerit points. You will also not be convicted if you have not been charged.
What Is A BAC (Basic Alcohol Level)?
A BAC refers to the level of alcohol present in your body. Drivers are only permitted to have a BAC of 0.05% when operating a motor vehicle or motorbike. Any drivers who are subject to a learner’s permit or provisional driver licence are only permitted to have a BAC of 0.0%. The penalties associated with driving a vehicle whilst holding in excess of these limits is a loss of licence either on the spot or with notice to hand your licence in at a specific time. Often you will receive notice that your licence is to be handed in 3 months time for example.
Will I Always Receive A Legal Penalty For A Traffic Offence?
Unless you receive a warning for exceeding the speed limit, you are likely to receive a penalty each time you commit a traffic offence. This penalty will be in the form of a loss of demerit points or a fine usually, however, depending on the offence and the severity of the offence you may receive a term of imprisonment or may be required to engage in a rehabilitation program or community service program.
Usually, if your penalty were to be as severe as a term of imprisonment, your traffic offence may be one of many first time offences. You may have been exceeding the speed limit, driving under the influence of alcohol or engaging driving dangerously which resulted in someone being injured or killed. This would result in a harsher legal penalty.
Will I Always Receive A Licence Disqualification For Traffic Offences?
You will not receive a licence disqualification for all traffic offences however it ultimately depends on what type of offence you have committed. If you exceed the speed limit then your punishment will be the loss of a number of demerit points. Usually you lose these in lots of two or three. The number of demerit points you will lose is dependent on how many km/hr you are over the limit upon radar detection.
If you are caught drink driving, driving under the influence or driving dangerously then you will serve the minimum period of licence disqualification according to the legislation. The legislation (State Act) specifies the minimum and maximum penalty for each offence. Given the nature of the offence, a period of licence disqualification is supposed to be the appropriate community deterrent from committing the offence. The general period of licence disqualification is three, six, nine or twelve months.
In certain situations (usually when a person has committed several traffic offences) you can receive a period of licence disqualification which is significantly longer (e.g. 5 years). This is unlikely however for a first offence.
In most situation, you will receive a fine for your offence.
Which Offence Is Less Serious; Drink Driving or Driving Under The Influence?
Of the two, driving under the influence of illicit substances is a more serious offence committed than drink driving. Illicit substances impair a person’s ability significantly more than alcohol when driving a motor vehicle. Even when a drivers blood alcohol level exceeds 0.05% there is still a period of time where their judgement is sound. A drivers impairment is technically no different at 0.05% than 0.06%, the mere difference is simply that one is legal and one is not.
It is important to understand the way your body reacts to alcohol and the factors which can affect your blood alcohol level. The relevant factors relate to consumption of food and water, physical exertion, weather, etc. All these factors influence how alcohol metabolizes in the body and thus how much alcohol is present in your blood.
What Is A Subsequent Offence?
A subsequent offence is an offence following a first offence. It may have even occurred at the same time and the person has been charged with more than one offence arising from the same set of circumstances. A subsequent offence is a regular occurrence when dealing with traffic offences because it is quite common for people to be charged with multiple offences regarding one incident (i.e driving dangerously and drink driving).A subsequent offence increases your likelihood of serving a term of imprisonment. This may also be confused with a related offence as they are classed similarly.
If I Am Required To Attend Court For My Offence, How Much Notice Will I Receive?
If you are required to attend court, you will receive a summons notice to appear. The notice will have a date and time for your attendance. It is critical that you attend on this date or that you instruct a lawyer to attend for you. You are able to provide your lawyer with the summons notice and it will specify to them what you have been charged with and on what date the offence occurred. This will allow your lawyer to communicate with police about your offence and to obtain the evidence they seek to rely on in court.
If your court date is postponed or changed then you will receive a further notice to appear with a new date on it. These notices are important and it is essential that the court has your current address and contact details so that they can send the notices to you. If you misplace any of the notices then you can request a new copy from the court. It is important to note that if you do not attend court on your specified date then this may result in a warrant being issued for your arrest which has the potential to make your penalty harsher (i.e. 5 years licence disqualification instead of 2 years or 3 years).
Frequently Asked Questions
Yes. A drivers previous criminal history will affect the legal penalty you receive for a subsequent offence. Each time a driver re-commits an offence their penalty will become more severe because it indicates that they have not learnt from your previous actions. A drivers previous offences will also be considered in terms of their blood alcohol readings because this will indicate whether they have a tendency to commit low range drink driving or high range drink driving. Your state's Traffic Act will provide more detailed information about disqualification periods and penalties.
If a driver has been disqualified from driving for an extended period of time, there is a possibility of being granted a restricted licence for the purposes of work, children or other extenuating factors. The requirement for a restricted licence is that the driver cannot attend to your children's care or your work responsibilities without it and the consequences would be significant if you were penalized with a period of disqualification.
If a driver is granted a restricted licence, it will result in a longer period of disqualification from driving under a normal licence (e;g; 3 years instead of 2 years). Drivers under this licence will also be heavily restricted in terms of where they can go and what times of the day they can drive. You are unlikely to be granted a restricted licence if you have been charged with dangerous driving however. You will need to attend court in order to apply for a restricted licence. It is important to note that a restricted licence cannot be granted to any drivers subject to a learner's permit or provisional licence.
If you do not have a drug present within your system or blood while driving, then you will not be charged with that offence. Instead you will likely be charged with possession of a controlled drug or depending on how much of the drug you have, distribution of a controlled drug. This is a separate area of criminal law and will not be found within your states Traffic Act but rather in a criminal Act or piece of legislation.
A driver subject to a learner's permit or provisional licence has 4 demerit points. A learner's permit is a period of one year (minimum) and a provisional licence is for a period of 3 years (minimum). This means that you only have limited points during this time. Whereas a person who holds a full licence has 12 demerit points. Once you lose your demerit points it takes 3 years for your points to be regained.
If you are caught exceeding the speed limit in a heavy vehicle then it is likely a work vehicle and your workplace will receive a copy of the infringement notice and fine. The person responsible will be the one who loses the demerit points. Heavy vehicles are considered dangerous if not driven with caution because they are larger than normal vehicles and can cause considerable damage if an accident occurs due to a driving offence. It is also important that when driving a heavy vehicle, you hold a heavy vehicle licence otherwise you can be charged with subsequent offences and suffer further penalties. If you want more information regarding these penalties, consult your states legislation or Traffic Act for more information and related offences.
If you forget your licence, you can be charged with driving without a licence however this is unlikely. If you are pulled over for a driving offence, the police are able to search your name and determine whether your licence is valid or not. In many circumstances, drivers take photos of their licence so that they can produce a copy if they forget it. As a general rule however, it is the best course of action to always carry your licence with you when driving. Above all else, your licence is a form of identification that should be within your vehicle at all times when driving.