HABITUAL OFFENDER DECLARATION
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Being disqualified from driving or labelled a habitual traffic offender can have a long term detrimental effect on your life. It can interfere with your ability to earn an income, provide care services to loved ones and can increase the cost of car insurance premiums. This impact can be further exacerbated when you receive multiple Habitual Traffic Offender Declarations on top of existing court-ordered disqualification periods.
Speak to a lawyer today
If you have been declared a habitual traffic offender and you are serving a current disqualification period, as a result, contact our team of expert traffic lawyers for a free initial consultation. We get it! Traffic law can be complex, especially when it merges with the criminal law.
What is a Habitual Traffic Offender Declaration?
Habitual Traffic Offender Declarations (HTOs) are orders made by Roads and Maritime Service (now Transport for NSW) for drivers who have been convicted of three or more major traffic offences in a five year period. Major traffic offences must be relevant offences and each of the three relevant offences in that five year period needs to be committed on separate occasions. This declaration is separate to any fines, disqualification periods etc issued by the courts.
Once a declaration has been made, the RMS will issue a further five year disqualification period. That means you are required to serve your existing disqualification period as well as the five year disqualification period set by the RMS. It is possible to receive multiple HTOs which can result in RMS imposed disqualifications of 10 more consecutive years.
In October 2017, the Habitual Traffic Offenders Declaration was dispensed with after a review by the New South Wales Government. It was deemed to longer meet the needs of the community and failed to act as a deterrent. If you received a Habitual Traffic Offenders Declaration prior to its repeal and its expiry date is not until after 2017, it is still valid. You cannot drive while it is in place and will need to re-apply for your licence once you have served the disqualification period.
If you are currently serving a Habitual Traffic Offender Declaration and you are caught driving, you will be charged with driving while disqualified. For further information about driving while disqualified, click on the Traffic Law link at the top of the page.
If you received an HTO prior to its repeal in 2017, contact our law firm for expert legal advice from our traffic lawyers.
Relevant driving offences
Major traffic offences deemed relevant offences are derived from both the criminal law and traffic law. They include:
Criminal law offences:
Dangerous driving occasioning grievous bodily harm
Dangerous driving occasioning death
Police pursuit
Murder or manslaughter via the use of a motor vehicle
Predatory driving
Failure to render assistance after an impact causing death or injury
Traffic law offences:
Exceeding the speed limit by more than 30km/h
Red light offences
Casual behaviour or a momentary lapse of judgment
Falling asleep while driving
Driving under the influence of alcohol (drink driving)
Driving under the influence of drugs (drug driving)
Drive furiously, recklessly or at speed in a manner dangerous to the pubic
Make an application for a driver’s licence while serving a period of disqualification/suspension/licence cancellation
Drive while disqualified or suspended
Appealing a Habitual Offender Declaration
If you are currently serving a Habitual Traffic Offender Declaration issued prior to its repeal in October 2017, you may be eligible for a review by the Local Court to quash the declaration. The Road Transport Act 2013 (NSW) also provides an opportunity for you to apply to remove any licence disqualifications if you have complied with your disqualification period for a minimum of two to four years depending on your circumstances and:
You do not have a conviction for driving offences causing death, grievous bodily harm or wounding with a motor vehicle
Murder or manslaughter caused by a motor vehicle
Predatory driving
Police pursuits
Negligent driving causing death or grievous bodily harm
Intentional menacing driving
Failing to stop and render assistance after impact causing death or injury
You will need to provide the court with:
Evidence regarding the special circumstances of the case. For example medical certificates, legal documents as proof that you are a carer
Copies of your local public transport timetable that prove it is unreliable for your specific needs. For example, unable to reasonably attend doctors appointments due to limited services
Character references (from people of standing in the community e.g. employer, priest, teacher, coach, etc)
Driving record
The court will review all of your evidence and take into consideration:
The safety of the public
Your total driving record (that means your driving record from the moment you received your learner’s permit)
Whether you drove or were in the position to drive during your offence free period
Any relevant conduct. For example, if you drove during your disqualification period, did you commit any further traffic offences?
The nature of the offence or offences that gave rise to your licence disqualification
Any other relevant circumstances e.g. unjust consequences of the disqualification such as education, employment, carer responsibilities, etc.
If the court is satisfied that the Habitual Traffic Offender Declaration can be removed or your disqualification period revoked, you will need to apply to Transport for NSW for a new drivers licence. When a Declaration has been made or you are required to serve a disqualification period, your licence is cancelled. You MUST NOT drive until you have been issued with a new drivers licence.
In a nutshell...
A Habitual Traffic Offender Declaration (HTO) is an order made by the RMS resulting in a driver licence disqualification. This order is in addition to any disqualification issued by the court. HTOs were repealed in 2017, however, HTOs issued prior to repeal are still valid. Contact our office for legal advice about appealing your HTO.
In a nutshell...
Multiple criminal offences involving the use of a motor vehicle and traffic offences make up relevant offences for HTOs. If you are currently serving an HTO, contact our office for a free initial consultation.
Case Study
Maurice lives on a farm in Gulgong. He is the sole carer for his mother who lives with him. He is required to drive her to medical appointments in town as there is no public transport system between his property and the town. Maurice has an average total driving history, however, over the last 5 years, he has increased his consumption of alcohol to cope with his increasing responsibilities. This has resulted in a low range drink driving conviction. He also has a conviction for driving over 30km/h. He was rushing to get home and didn’t think he would get caught taking the back road home.
Maurice was convicted of an additional low range drink driving offence in May 2017. He had stopped at the pub on his way home from work and didn’t think he had that much to drink. In addition to the court issued disqualification notice and fine, he received a notice from the RMS that he had been declared a habitual traffic offender.
He appealed the Habitual Traffic Offender Declaration. He presented a letter from his mother’s doctor as evidence of his carer responsibilities for her that required him to still drive. He also provided a character reference from his employer and his friend who is a local school teacher.
The court has a number of options available when considering Maurice’s case. They can:
Enforce the HTO, or
Quash the HTO and all additional disqualification periods, or
Quash the HTO and enforce the existing disqualification periods.
If Maurice has been offence free since May 2017, it is likely the Magistrate would take into consideration his special circumstances and quash the HTO. However, if Maurice has continued to drive and/or committed additional traffic offences in that time, it is unlikely the Magistrate would quash the HTO.
Case Study
Mandy lives in Newcastle and works on the Central Coast. She is a shift worker and works odd hours. She received an HTO in May 2017 after accumulating a number of relevant offences (speeding, drink driving and driving while suspended). Mandy found it difficult to travel to work as the public transport system is not compatible with her shifts so she continued to drive.
Mandy was stopped by Police on her way home from work. Their automatic number plate recognition camera detected Mandy’s vehicle and their records showed that she was a disqualified driver.
Mandy was arrested and charged with driving while disqualified as well as driving an unregistered and uninsured vehicle. Mandy was unable to register and insure her vehicle as she was serving a licence disqualification period.
When her matter appears before the Local Court, it will consider her traffic record and current HTO. The court will likely increase her disqualification period and there is a risk of imprisonment up to 12 months.
Case Study
Pascal lives in Parramatta and works in the Sydney CBD. He catches public transport to work every day and is not a parent or carer who is required to drive to fulfil carer duties. He received an HTO in January 2017 due to convictions for speeding, driving while suspended (for failing to pay a fine) and attempting to renew his licence while suspended. He had a total disqualification period of six years as a result of a 12 month disqualification period and a five-year HTO disqualification period. He really wanted his licence back as he felt he was dealt with harshly.
Pascal made an application to the Local Court to have his HTO disqualification quashed after serving his court issued 12 month disqualification period. He had character references but could not satisfactorily prove to the court that he had special circumstances that required him to retain his driver licence. He was required to continue serving his HTO disqualification period until January 2022. He cannot drive during that time and will be required to re-apply for a licence once he has served the disqualification period.
Disclaimer
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.
Traffic Offences: Latest News and Resources
FAQs
Frequently Asked Questions.
RMS will notify you in writing. The notification will be sent to the address listed on your driver’s licence. It is a legal requirement to ensure that RMS has your current address. Failure to update your details within 14 days of a change in address may result in a fine of $116.
You will need to apply to Transport for NSW (formerly RMS) for a new licence. If you were an unrestricted licence holder and were disqualified from driving while on a good behaviour licence, your good behaviour licence will be re-instated. It will start from the date your disqualification was lifted and will expire in 12 months. Depending on the length of time you were disqualified, you may be required to complete testing before being issued with a new licence and you may be placed on a restricted licence. All fines must be paid and all disqualification periods must be served or quashed before you will be issued with a new licence.
You cannot appeal an HTO decision of a magistrate, however, you can make a new application to appeal your HTO. There is no limit to the number of times you can make an application, however, you should wait a few months between applications to avoid being labelled a nuisance by the court. Each time you file an application to the Local Court to have your HTO quashed, you are required to pay court filing fees. The current court filing fee is $98. If your appeal is unsuccessful, you may be required to pay additional fees such as court fees $85 and Victim Support Levy $85. Due to the potential costs related to your appeal, it is important that you receive legal advice by an expert traffic lawyer before proceeding.
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