DRIVING WHILST SUSPENDED / DISQUALIFIED
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Driving whilst disqualified or suspended is serious. Our expert traffic lawyers will help you achieive a positive outcome.
Has your licence been suspended or have you been disqualified from driving?
We understand that life can be challenging without the ability to drive a motor vehicle. Licence suspension and disqualification can have a significant impact on your employment and your carer responsibilities. All of this however, does not take away from the fact that driving while suspended or disqualified are serious traffic offences. It’s risky business for you (as all your insurances are void whilst your are suspended or disqualified), and unsafe for others on the road too.
In NSW, most traffic offences are strict liability offences. That means the prosecuting authority does not need to prove you intended to commit the offence, only that you did commit the offence. If your licence has been suspended on the spot by Police or you have committed a traffic offence, your matter will be prosecuted by the Police or the DPP. If your licence suspension is the result of demerit point loss or fine default, your matter will be prosecuted by Transport for NSW.
Most traffic offences are dealt with under the Road Transport Act 2013, however, there are a number of traffic offences that are criminal offences and therefore prosecuted under the Crimes Act 1900. Depending on the seriousness of the offence, traffic matters are usually prosecuted in the Local Court.
Traffic offences usually involve a licence suspension or period of disqualification, loss of demerit points and fines. The most serious offences also involve a term of imprisonment. Fines are calculated using penalty units set out in the legislation. In NSW, each penalty unit is equal to $110. For example, 50 penalty units equal a fine of $5,500.
Traffic law is a complex area of law and it is essential that you seek legal advice about your matter, especially if your matter is before the courts. Contact our office for a free initial consultation.
There are three ways your licence can be suspended:
- Police suspension on the spot for certain offences
- Transport for NSW suspension due to failure to pay a fine (fine default)
- Transport for NSW suspension due to exceeding the demerit point limit
The police have the power to suspend your drivers licence on the spot (or within 48 hours) for the following driving offences:
- Speeding in excess of 45km/h above the speed limit (automatic 6 months suspension)
- Driving under the influence
- Drink driving offences (automatic 3 months suspension for low range drink driving)
- Street racing
- Aggravated burnout offences
- Novice driver speeding in excess of 30km/h above the speed limit (automatic 3 months suspension)
- Unaccompanied learner (automatic 3 months suspension)
On the spot suspensions mean you MUST NOT drive the vehicle.
Police suspensions can be appealed. You MUST lodge your appeal within 28 days of the infringement notice.
Transport for NSW also has the power to suspend your drivers licence. Unrestricted licence holders in NSW risk having their licence suspended by the roads authority if they accrue the following demerit points in a three year period:
- 13 (or 14 for a professional driver) to 15 = 3 months licence suspension
- 16 to 19 = 4 months licence suspension
- 20 or more = 5 months licence suspension
Transport for NSW also has the power to suspend your drivers licence when you fail to pay or default on the payment for fines. It doesn’t matter what the fine is for, if you fail to pay it, your licence can be suspended. If you are having difficulty paying your fine, you can organise to pay your fine in instalments or through a Work Development Order. Do NOT drive if you have been suspended for failing to pay your pay as you may be convicted for driving while suspended. If you need assistance, contact our office for a free initial consultation.
A licence disqualification is a court order setting out a period of time you are not allowed to drive. Only serious traffic offences, criminal law offences involving motor vehicles or minor traffic offences that have been appealed to the Local Court are subject to disqualification periods.
When the court orders a disqualification period, they notify Transport for NSW who then cancel your driver licence. If your licence has been disqualified, you will need to apply to Transport for NSW for a new valid licence once your disqualification period has been served. If you fail to re-apply, you are unlicensed and you can be prosecuted for driving while unlicensed.
If you have been disqualified from driving and you have complied with the disqualification, you may be eligible to have the disqualification period lifted. Depending on the seriousness of the offence resulting in the disqualification, if you have been offence free for two or four years, you can apply to the Local Court to have it lifted. You will not be able to appeal your disqualification if is the result of a dangerous driving conviction or involves the death of another person. For more information on dangerous driving, click the Traffic Law link at the top of the page. If your appeal is successful, you will still be required to apply for a new licence and successfully complete the Driver Knowledge Test.
You MUST NOT drive while a licence suspension or disqualification is in place. If you do, it can lead to further penalties. If you have been charged with driving while suspended or disqualified, your matter will be referred to the Local Court.
It is an offence to drive while suspended or disqualified. The maximum penalty for this offence is a fine of $3,300, imprisonment for 6 months and licence disqualification for 6 months for a first offence. For a second offence or subsequent offence, the maximum penalty is a fine of $5,500, imprisonment for 12 months and licence disqualification for 12 months.
Other police roadside powers
A police officer has the power to confiscate your number plate or impound your vehicle for a fixed period of 3 months for a first offence. If it is a second or subsequent offence within 5 years, the court can order the vehicle be forfeited to the Crown and it can be sold to Transport for NSW for crash testing.
You can appeal the confiscation of your number plate or the impoundment of your vehicle to the Local Court. You will need to lodge an application with the court and have evidence to support your requirement of the vehicle. For example, you are a carer and require the vehicle to transport your relative or you live in a regional area with limited access to public transport.
Summary Court Process (Local Court)
Most licence suspension and disqualification matters will be heard in the Local Court. The exception to this is when the death or serious injury of another person is involved.
The Local Court process is as follows:
- Contact Jameson Law for a free initial consultation
- Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
- You should use this time to gather any supporting evidence such as character references.
- Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
- Hearing: both parties will present their argument to the court. The court will make its decision and issue a sentence where appropriate.
Local Court sentencing options
There are many sentencing options available to the Local Court. These options are available when a term of imprisonment is a maximum penalty, but where no serious injury or death has resulted from the offence.
Pleading guilty at the earliest opportunity may entitle you to a 25% reduction in your sentence. However, you should NOT plead guilty until you have received legal advice, to ensure the best possible outcome for your matter.
A section 10 is the best possible outcome in the event the court finds you guilty of a suspension or disqualification offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.
- Section 10 (1) (a)- dismissal with no conviction recorded
- Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years
- Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling.
A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.
Before granting a section 10, the court will consider:
- Your traffic history.
- Your character, antecedents, age, health and mental condition, etc
- The trivial nature of the offence
- Extenuating circumstances that lead to the offence being committed
- Any other matter the court considers relevant
Intensive Correction Order:
Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison.
Additional conditions that may be imposed by the court include:
- home detention
- electronic monitoring
- community service (up to 750 hours)
- participation in rehabilitation or treatment programs, for example, drug treatment/counselling
- no drugs or alcohol
- refrain from certain relationships/associations, for example, drug dealer, etc.
- ban from certain locations
Community Correction Order:
Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.
Conditional Release Order:
A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.
A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence occurred:
- cognitively impaired
- suffering from mental illness
- suffering from a mental condition for which treatment is available in a mental health facility
The options available to a magistrate under a section 32 include:
- adjourning the matter
- granting the defendant bail
- any other order the magistrate deems appropriate
- dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.
The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
Frequently Asked Questions.
Transport for NSW (previously RMS) will notify you in writing if your licence has been suspended for points or failure to pay a fine. If your licence has been suspended by the Police, they will send you a notice. You must ensure that your contact details are to up to date. Failure to notify Transport for NSW of change of address within 14 days of moving may result in a fine.
It is highly recommended that you have representation when attending court. It can be a daunting experience, especially if it is your first time, and traffic law can be complex especially if you have prior traffic offences.
You cannot drive if you have a suspended licence. If your licence has been suspended for failure to pay a fine, you need to pay your fine before you will be allowed to drive. Once your fine has been paid, check with Transport for NSW to ensure the payment has been cleared and you are cleared to drive. If you are unable to pay your fine, contact Revenue NSW to arrange a payment plan or contact our office for assistance to obtain a Work Development Order to work off the fine.
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