(02) 9525 8688

(02) 9525 8688

Driving Offences and Appeals

Thu, 02/07/2013 - 10:16 -- alexr

Traffic Law

Driving Offences

Most driving offences, such as speeding and disobeying road signs, or using a mobile phone, are dealt with by way of a fine and/or demerit points. Where driving offences are successfully defended the RTA does not apply demerit points for the offence. Since 2011 where you are able to have a driving offence dealt with by the Court under section 10 of the Crimes Sentencing Procedure Act such that no conviction is recorded against you, the RTA no longer applies demerit points.

However other driving offences can be quite serious, and can involve criminal charges and a trial before a judge.

If you would like advice regarding driving offences, call one of our experienced criminal lawyers on (02) 9525 8688 for free initial advice on your circumstances.

The Law

Some of the more serious driving offences include:

  • High Range PCA and Mid Range PCA offences
  • Negligent driving where death is occasioned
  • Negligent driving where grievous bodily harm is occasioned
  • Furious driving; Reckless driving; Driving in a manner or at a speed dangerous
  • Fail to stop and give assistance in an accident involving death or injury

Penalties for these offences could include, fines, licence disqualification or a goal term depending on the severity of the offence and whether it is a first, second or subsequent offence.

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License Appeals Against RMS Decisions

The RMS may suspend a person’s licence for a number of reasons, including:

  • through accumulation of demerit points over a 3 year period
  • a speeding offence incurred for a provisional licensed driver
  • exceeding the speed limit in excess of 30 km/h

However, when a driver loses their licence, they may lodge an appeal with the court to either quash the suspension or reduce the period of suspension for certain offences.

Where a driver loses their licence as a result of driving at a speed greater than 30km/h, they can appeal to the court who can remove the suspension or reduce it to a lesser period. In deciding whether to either quash or reduce the suspension, the court will take into account factors such as the character of the defendant (including their previous traffic record), the circumstances which surrounded the offence and their need for a licence. Medical reasons or the prospect of a defendant losing their job as a result of losing their licence due to a need to have access to a car can be taken into account by the court in determining the appeal. Mitigating factors such as the willingness of the defendant to attend at a traffic offender’s program may also lead to a greater possibility of a successful appeal.

While the suspension of a licence for a full-licensed driver as a result of the accumulation of too many demerit points cannot be appealed, there is the possibility of applying for a “good behaviour licence”. However, where an offence of two or greater demerit points is incurred, this will result in a period of suspension of the original suspension period being doubled or 6 months, whichever is the lesser. If an offence occurs while on a good behaviour licence there is no ability to conduct a licence appeal so the prospect of undertaking a licence appeal should be explored before a good behaviour licence is taken up.

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Removing or Quashing Habitual Offended Declarations

If you commit 3 major offences on separate occasions within a 5 year period, you are automatically declared a ‘Habitual Offender’ by the Court. This declaration carries an automatic 5 year suspension of licence, on top of any other sentence you receive for your offences.

The list of offences which are major offences is extensive, but includes drink driving offences, driving whilst disqualified or driving whilst suspended,

A Habitual Offender Declaration can be appealed, and the automatic 5 year suspension reduced or removed. Our team of experienced lawyers can advise you on the prospects of avoiding a Habitual Offender Declaration, or make an application that it be quashed. Importantly we can also advise you as to the best time to make such an application, which can be crucial to your success.

The Law

The following offences are some of the offences that are defined as relevant offences:

  • Driving recklessly or furiously.
  • Driving at a speed or manner dangerous to the public.
  • Negligent driving occasioning death or Grievous bodily harm.
  • Menacing driving.
  • Special range PCA.
  • Low-range PCA.
  • Mid-range PCA.
  • High-range PCA.
  • Refuse breath analysis.
  • Drive under the influence of an alcohol or drug.
  • Fail to stop and give assistance where a person is killed or injured.
  • A speeding offence where the speed limit was exceeded by more than 30 km/hr.
  • Driving whilst unlicensed when the person has never been licence.
  • Driving whilst disqualified.
  • Driving whilst cancelled.
  • Driving whilst suspended.

An application can be made to have the habitual traffic offender declaration quashed (set aside) or the disqualification period reduced. The Court will quash the Habitual Traffic Offender declaration if it is satisfied that it is a disproportionate and unjust consequence having regard to your total driving record and the special circumstances of the case.

The Court can either take away the whole 5 years or reduce the disqualification period to a period that is not shorter than 2 years.

An application to quash the Habitual Traffic Offender declaration can be made to any Court where one of the offences was dealt with in the following circumstances:

  1. At the time when you are being sentenced for your 3rd relevant offence and/or
  2. A later date once you have completed the Court imposed disqualification period.

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Drink Driving

Our team of experienced Criminal Lawyers conduct pleas for mitigation in all range of drink driving offences, in Courts across Sydney and New South Wales..

They can arrange with experts for the provision of a pathology report to confirm or refute the accuracy of a breath test, and can make detailed submissions identifying circumstances the Magistrate or Judge must take into account when sentencing.

The Law

Low Range PCA involves a fully licenced driver/rider returning a reading of between 0.05 and 0.08 grams of alcohol per 100 millimetres of blood or 210 litres of breath. This offence can result in the imposition of disqualification for up to 12 months and fines of up to $2200 for second offences or disqualification for 6 months and fines up to $1100 for first offences.

Mid Range PCA involves a fully licenced driver/rider returning a reading of between 0.08 and 0.15 grams of alcohol per 100 millimetres of blood or 210 litres of breath. This offence can result in the imposition of disqualification for up to 3 years, fines of up to $3300 and imprisonment for up to 12 months for second offences or disqualification for 12 months, fines up to $2200 and imprisonment for up to 9 months for first offences.

High Range PCA involves a fully licenced driver/rider returning a reading of above 0.15 grams of alcohol per 100 millimetres of blood or 210 litres of breath. This offence can result in the imposition of disqualification for up to 5 years, fines of up to $5500 and prison terms of up to 2 years for second offences or disqualification for 3 years, fines up to $3300 and imprisonment for periods up to 18 months for first offences.

Novice Range PCA offences relate to learner or provisional drivers/riders who, due to their deemed lack of experience in operating a motor vehicle have to have a nil or zero blood alcohol level when driving/riding.

Special Range PCA offences relate to bus and truck drivers, other professional drivers/riders as well as learner or provisional drivers/riders and also those disqualified from holding a licence or having been refused a licence who are prohibited from driving with a blood alcohol reading over 0.02 grams of alcohol per 100 millimetres of blood or 210 litres of breath. The Special Range PCA offence occurs where a reading is given of between 0.02 up to 0.05 grams of alcohol per 100 millimetres of blood or 210 litres of breath.

Driving Under the Influence of Drugs (DUI) - In NSW the Police have the power to randomly stop drivers and test them for the presence of cannabis, ecstasy and methamphetamines. The penalties for such offences mirror those for mid range PCA offences.

Refuse Breath Analysis - It is an offence to refuse a breath test at the roadside or a breath analysis at the police station. The Maximum penalty for the offence of Refuse Breath Analysis is a fine of up to $3,300 and or imprisonment for up to 18 months.

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Negligent Driving Causing Grievous Bodily Harm

In the most extreme cases negligent driving can cause grievous bodily harm or even death. The penalties applicable can result in imprisonment for 10 years.

Our experienced Criminal lawyers have dealt with all types of driving offences, and can analyse the evidence and circumstances and provide you with the best advice and representation.

The Law

Negligent Driving and Dangerous Driving

The section which outlines this is mainly section 52A, which refers to dangerous driving, There are varying degrees of dangerous driving although all are dealt with as indictable offences.

S 52 of the Act outlines that:

  • death or grievous bodily harm is occasioned to someone
  • through impact with a motor vehicle, directly or indirectly, or through the motor vehicle leaving the road or overturning
  • provided that at the time of the impact, leaving the highway or overturning the driver of the vehicle was under the influence of alcohol or drugs or was driving in a speed or manner dangerous to other persons.

There are mandatory penalties associated with these offences. These are 10 years for causing death and 7 years for causing grievous bodily harm whilst driving.

Negligent driving causing grievous bodily harm or death are classed under s188 of the Road Transport (General) Act as a major traffic offence. Definitions of the offence of negligent driving can be found in section 42 of the Road Transport (Safety and Management) Act 1999, which states that:

  1. A person must not drive a motor vehicle negligently on a road or road related area.

Maximum penalty:

  • if the driving occasions death $3300 or imprisonment for 18 months or both (in the case of a first offence) or $5500 or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
  • if the driving occasions grievous bodily harm $2200 or imprisonment for 9 months or both (in the case of a first offence) or $3300 or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
  • if the driving does not occasion death or grievous bodily harm $1100.

In applying the section, the Court is to have regard to a number of factors regarding the circumstances of the offence committed; such as the nature, condition and use of the road on which the offence was committed and also the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road or road related area (s42(3)). Under this section the infliction of grievous bodily harm is taken to mean any serious or permanent disfigurement.

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Pathology Reports and Incorrect Breath Analysis Results

Breath analysis is provided for under the Road Transport (Safety and Management) Act 1999 as the technique which may be used to determine whether a driver has exceeded the prescribed concentration of alcohol which may be allowed for while driving. Following an arrest for a drink driving offence under s14 of the Act, a driver may be required by police to submit to a breath analysis following arrest under section 15(1) of the Act. The police officer must then provide the arrested driver with a written statement which contains the date and time of the breath test and the concentration of alcohol determined by the breath or blood test which was found to be present in the driver’s blood or breath at that time.

Where a person believes that the reading which was recorded on the breath analysis is actually incorrect, they may be able to apply s18.

Under section 18 of the Act:

  • A person who is required under section 15 (1) to submit to a breath analysis may request the police officer making the requisition to arrange for a medical practitioner to take, in the presence of a police officer, a sample of that person’s blood, for analysis in accordance with this section at that person’s own expense
  • The medical practitioner must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.
  • The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.

Where this reading is conclusive that the breath analysis reading was incorrect, this may be used by the driver as evidence that they in fact had not exceeded the prescribed content of alcohol.

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Driving While Disqualified or Cancelled

Driving a car with a suspended or disqualified licence is a major offence. If charged with one of these offences it is important to have a lawyer who understands the factors that can be raised to mitigate the sentence you receive, and can limit the time you without a licence.

The Law

A driver who has been disqualified under any Act from holding or obtaining a driver’s licence must not, under s25A of the Road Transport (Driver Licensing) Act 1998:

  1. drive a motor vehicle on a road or road related area during the period of disqualification, ort
  2. The maximum penalty for driving whilst disqualified under this Act is $3300 or 18 months imprisonment or both for a first offence, and $5500 or two years’ imprisonment or both in the case of a second or subsequent offence. A second or subsequent offence for the purposes of s25A is where the offence occurred within five years of any previous conviction recorded against the driver under s25A sub-sections (1), (2) or (3) or any other major traffic offence as defined by s188 of the Road Transport (General) Act.

Under s25A(2) of the Act a person who has had their driver’s licence suspended under any Act (except for under s66 of the Fines Act 1996) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates. The maximum penalty for committing such an offence is the same as for driving whilst disqualified.

Under s25A(3) of the Act it is also an offence for a person who has had their driver’s licence cancelled under any Act (except for under s66 of the Fines Act 1996) drive on a road or road related area a motor vehicle of the class to which the suspended driver licence relates. The maximum penalty for committing such an offence is the same as for driving whilst disqualified.

(7) If a person is convicted by a court of an offence under subsection (1), (2), (3) (a) or (3A), the person:

  • is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension orfrom the date of such conviction, whichever is the later, from holding a driver licence, and
  • may also be disqualified, for such additional period as the court may order, from holding a driver licence.

(8) The disqualification referred to in subsection (7) is in addition to any penalty imposed for the offence.

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Driving an Uninsured or Unregistered Motor Vehicle

It is an offence to drive a vehicle which is unregistered. A vehicle becomes unregistered when the registration is not renewed by the expiry date or when the registration is cancelled or suspended. The maximum penalties for such an offence for the driver of the unregistered vehicle are $516 for a light vehicle and $1089 and 4 demerit points for a vehicle which weighs greater than 4.5 tonnes. It should be noted however, that unregistered vehicles may be driven by the most direct or convenient route to the nearest RTA so that they may be registered.

It is also an offence to drive a vehicle which is uninsured. Compulsory Third Party (CTP) insurance must be held on every motor vehicle which will be driven in New South Wales. The penalties to be imposed for this offence are the same as those to be applied for driving an unregistered vehicle. CTP insurance will also most likely not apply while driving a motor vehicle which is unregistered.

The same penalties also apply for both offences not only for the driver of the vehicle but also for the last registered operator of the vehicle.

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Traffic Offenders Program

Undertaking the Traffic Offenders Program can maximise your prospects of receiving a lenient sentence for a Driving Offence. Depending on where it is held programmes can run over a couple of days or for weekly sessions over 6 to 8 weeks and usually consist of lectures and assignments. At the completion of the program you will be provided with an attendance record and achievement report. Completion of this course or an equivalent course is viewed favourably by the Court as evidence of having taking positive steps towards avoiding a repeat of your actions.

The Traffic Offenders Program is run at various locations throughout New South Wales, and our team of experienced lawyers can advise you whether this course would benefit your circumstances, provide you with the contact details for the closest venue to you and also attend Court on your behalf and have your matter adjourned so that you may complete the program.

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