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.
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.
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.
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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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