Licence Appeals and Habitual Offender Declarations
Many traffic offences attract suspension periods and often, drivers are unaware that upon payment of a fine they will be facing a period of suspension. For drivers who find themselves coming before a Court multiple times for major traffic offences, additional sanctions, such as Habitual Offender Declarations, can be imposed. We can help you navigate through this complex area of traffic law and, where permitted, help you maintain your privilege to drive or assist you in getting back on the road sooner.
If you wish to make an application to the Local Court to appeal a licence suspension or to have an habitual offender declaration quashed, we invite you to contact your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Appeal Licence Suspension
The Roads & Maritime Services (the RMS) and the NSW Police can suspend your licence for a number of reasons. Most licence suspensions can be appealed to the Local Court, where the Court is asked to essentially review the decision. If you have received a suspension or suspension notice, you may be able to appeal the suspension to either reduce the suspension period to a lesser period or to have the suspension completely quashed and therefore, have your licence reinstated.
It is important to not take any shortcuts when appealing a licence suspension because after the matter is finalised in the Local Court, there is no further right of appeal. We therefore employ experts in this area of law and the importance of engaging an experienced Traffic Lawyer to appeal a licence suspension (NSW) cannot be overstated.
Offences/reasons giving rise to suspension
The following are some of the reasons that a driver's licence may be suspended:
- Exceeding the speed limit by more than 30km/h.- Exceeding the speed limit by more than 45km/h- Accumulation of demerit points- Any speeding offence on a Provisional 1 licence.- Non-payment of fines- Being charged with a serious drink driving offence- Being charged with other serious traffic offences- Medical reasons- Not being a fit and proper person to hold a licence- Loss of demerit points on a probationary licenceSuspensions that can be appealed
The following are some of the suspensions that can be appealed to the Local Court:
- Exceeding the speed limit by more than 30km/h- Exceeding the speed limit by more than 45km/h- Accumulation of demerit points (Provisional licence holder only)- Being charged with serious drink driving and other serious traffic offences- Medical reasons- Not being a fit and proper person to hold a licenceRMS Suspensions
Suspensions from the RMS are the most common that are appealed. The RMS can suspend a driver's licence for a variety of reasons, the most common being:
- Exceeding the speed limit by more than 30km/h- Exceeding the speed limit by more than 45km/h- Accumulation of demerit points (Provisional licence holder only)- Not a fit and proper person to hold a licenceThe RMS does not have the ability to issue immediate licence suspensions. The RMS is required to send a notice to the licence holder (a "Notice of Suspension") advising that the licence is to be suspended; the reason for the suspension; that the licence holder can appeal the decision to suspend the licence; and that a time limit of 28 days for lodging an appeal applies.
It is a misconception that suspensions for excessive speeding offences are "mandatory". In fact, the legislation makes it clear that the RMS has a discretion to suspend drivers in these circumstances. However, due to policy reasons and the lack of resources for each case to be assessed on its merits, the RMS approaches licence suspensions as though they are all mandatory. For that reason, appeals against these decisions to the Local Court are common.
The time limits that apply to lodgement are strict and the Court does not have the power to hear a licence suspension appeal if it has been lodged out of time. Despite some misunderstanding regarding time limits among practitioners and some court registries, the law holds that the 28 day window for lodgement commences four working days after the Notice is sent. As there is no discretion to the Court to hear an appeal lodged out of time, it is important to seek legal advice on the merits of an appeal as soon as possible after receiving a notice to ensure that the strict time limits are complied with.
Once an application for an appeal is lodged, you are able to continue driving until the Court finally determines the matter. When it comes to determining the appeal, the Court only has the same powers the RMS has when deciding what to do. Essentially, this means that the Court can dismiss the appeal outright (which means that the suspension period sought to be imposed by the RMS is in fact imposed); uphold the appeal (which means that the RMS decision is quashed/overturned and no suspension is imposed); or vary the RMS decision (which generally means, reducing the suspension period). The Court does technically have power to increase the suspension period, however, this is very uncommon.
The Court is not limited in the matters it can take into account when determining an RMS licence suspension appeal. However, it can be argued that some matters that are relevant to most appeals are the person's previous driving history; the extent to which the person has offended; whether the person has completed a driver education course; the risk to public safety posed by the person's offending; the persons's need for a licence and the benefit to the community for the person to continue driving or have their suspension reduced. As the matters to be taken into account are not limited, an experienced Traffic Lawyer should be able to tailor his or her submissions to the specific circumstances of each case. What may seem like a favourable factor in one case could actually be an unfavourable factor in another. Of course, if a licence is suspended due to medical reasons, then the issues that need to be addressed are fewer and specific to the reason for suspension.
It is also important to note that licence suspensions can have different consequences for different licence holders, depending on the circumstances. For example, if a provisional licence holder receives a Notice of Suspension due to accumulation of demerit points, appeals the RMS decision and is successful (and therefore not suspended), then the accumulated demerit points carry over. This can mean that the licence holder is then driving on a licence that does not allow any demerit point accumulation and any minor offence that carries with it demerit points will cause the driver to receive another Notice of Suspension. If, however, the Court decides to reduce the suspension, then, after the suspension has been served, the licence holder commences driving with a "clean" licence.
Police suspensions
The Police powers of suspension are limited to the following:
- Exceeding the speed limit by more than 45km/h- Exceeding the speed limit by more than 30km/h (Provisional licence holder only)- Being charged with a serious drink driving offence or other serious driving offence- Unaccompanied Learner driver offence- For a temporary period (14 days) if the officer forms the view that the driver is a danger to the communityAgain, the Police power to suspend a licence is discretionary. However, it is very rare for the Police to not suspend a driver if receiving a penalty notice for one of the excessive speed offences or being charged with a serious drink driving or other serious driving offence (such as street racing or driving in a manner dangerous to the public).
A major difference between the Police power to suspended and the powers of the RMS is that the Police can issue an "immediate" licence suspension. An immediate licence suspension notice is to be given to a driver within 48 hours of having committed a relevant offence. The driver is suspended from the moment he or she is served with the notice. The driver still has the option to appeal the Police officer's decision to a Local Court and must lodge an application to do so within 28 days of receiving the notice.
There are two appeals that can be made against a police officer's suspension - an appeal seeking that the suspension is quashed or varied and an appeal seeking that the suspension is stayed (placed on hold).
Appeal against Police suspension: Unlike RMS suspension appeals, a Court cannot vary or set aside an immediate police suspension unless it is satisfied that there are exceptional circumstances to justify such action. This is a very high threshold to meet and although the law does not specify what are exceptional circumstances, a Court would require something out of the ordinary. Therefore, typically, requiring a licence for work purposes would not amount to an exceptional circumstance.
As the suspension has been imposed due to the allegation that a serious offence has been committed, it makes sense that the law requires a very high threshold to be met. The Court is also not to take into account the circumstances of the alleged offending. This may also seem unfair, particularly where a licence holder may actually wish to defend the allegations and should be given an opportunity to get their licence back in the meantime. That is where an application to stay the Police suspension can be made.
Application to stay Police suspension: In circumstances where someone is considering defending a penalty notice or charge that gives rise to a Police suspension, the licence holder can make an application to the Local Court for the suspension to be stayed (or placed on hold) until the matter is finalised. Once again, the applicant needs to shows that there are "exceptional circumstances". For the purpose of this particular application, in determining whether there are exceptional circumstances, the Court must take into account each of the following:
- the strength of the prosecution evidence- the affected person’s need for a licence- the potential danger to the community if an order is made- any other matter that the Local Court considers to be relevantMaking an application to stay a police suspension can still prove very difficult, as the Court often has only limited material before it when making a decision, and a prosecution case can often appear to be a lot stronger on paper than it actually is or, when dealing with something that is as simple as a speeding ticket, the initial material before the Court is of no assistance.
Our traffic lawyers are experienced in appealing licence suspensions NSW wide and will be able to advise you on the prospects of an appeal and, where your instructions are to proceed with an appeal, will draft and lodge the appeal on your behalf and represent you at the hearing.
If you have received a Notice of Suspension from the RMS or the Police and require legal assistance, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Habitual Offender Declarations
The habitual offenders scheme imposes an automatic licence disqualification to drivers who have repeatedly committed serious traffic offences. Although drivers are "declared" habitual offenders, becoming an habitual traffic offender is essentially an automatic process and is not a decision that is made by a Court or the RMS. A Court does not declare a person an habitual offender but does have the power to reduce the automatic disqualification period or to quash the declaration altogether. When and how the Court can exercise its powers is often misunderstood by lawyers and Courts alike.
**Important Notice**
The habitual offenders scheme was abolished in October 2017. However, any habitual offender declaration already made prior to this date is still valid and remains in place until quashed or set aside.
The below article was written prior to the abolition of the scheme, but for most part, remains relevant.
There is currently some confusion amongst some of the profession and judiciary as to how the new law applies to previous declarations. Contact our Traffic Law team for further information on the current status of the law in NSW.
How can I be declared an habitual offender?
You will be automatically declared an habitual offender if you are found "guilty" in a Court of 3 "relevant offences", occurring at different times, within a 5 year period.
The moment you are dealt with for your third offence, you are declared an habitual offender. This is not an order of the Court - in fact, a Court cannot declare someone an habitual offender and is not required to even mention the declaration in Court.
After the court proceedings, you will receive a notification from the RMS that you have been declared an habitual offender, nominating the offences that gave rise to the declaration.
What happens if I am declared an habitual offender?
You will be automatically disqualified from driving for 5 years. This is in addition to any existing disqualification periods and any disqualification period imposed by the Court as a result of the third relevant offence giving rise to the declaration.
For example, if the third offence was a drink driving offence and you were disqualified by the Court for a period of 12 months, the declaration will automatically add an additional 5 years to that disqualification period, so the overall disqualification will be 6 years.
The Court does not have the power to make an habitual offender declaration, however, at the time of the third offence giving rise to the declaration, the Court has the power to vary the habitual offender disqualification period. The Court can increase the automatic 5 year period (which is uncommon) or, the Court can reduce the period to no less than 2 years.
It is important to note that if you are declared an habitual traffic offender, the 3 offences that were taken into account can still be used for future habitual offender declarations. For example say you commit relevant offences in 2003, 2005 and 2006 and are subsequently declared an habitual offender and receive a 5 year disqualification period on top of your disqualification period for the 2006 offence that the court imposed. If you then commit another relevant offence in 2009 you will receive another habitual offender declaration that will again take into account the 2005 and 2006 offences and you will receive an additional 5 year disqualification.
What is a relevant offence?
For the purpose of an habitual offender declaration, "relevant offences" include:
- All drink driving offences including:
- Special Range PCA- Low Range PCA
- Mid Range PCA
- High Range PCA
- Refuse breath analysis
- Driving whilst under the influence of alcohol
- Driving at a speed or in a manner dangerous to the public
- Exceed speed by more than 45km/h
- Reckless or furious driving
- Driving whilst suspended
- Conviction of driving while unlicensed
- Driving whilst disqualified
- Driving whilst cancelled
- Menacing driving
- Negligent driving where death or grievous bodily harm is occasioned
- Driving under the influence of drugs
- Fail to stop and give assistance in an accident involving death or injury
Can I have an habitual offender declaration overturned?
Yes, you can apply to the Local Court to have the declaration quashed. It is arguable that you can apply to any Local Court that dealt with any of the offences that gave rise to the declaration to have the declaration quashed, however, in practice the general view is that the application must be lodged at and heard by the Court where the third/last offence was dealt with that gave rise to the declaration.
When an application is brought before the Court at a time after the third offence was dealt with, the Court has the power to quash the declaration, which means setting it aside, or to dismiss the application and not take any action. In deciding whether to quash the declaration, the Court must consider whether the the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.
It is often understood that when someone brings an application to the Court to have the declaration quashed that the Court has power to vary the declaration. It is our view at Prime Lawyers that this is incorrect, and that if a Court proceeds to do so is in error. It is important to engage a traffic lawyer that understands the precise powers of the Court at any given moment to be able to better assist the Court with this area of law.
It is also believed by many practitioners that, if a Court, at the time that the declaration is made, decides to vary the disqualification period, an application to quash the declaration cannot be made. This is also an error and goes against the very purpose of the legislation.
Even though applications are often made for habitual offender declaration to be quashed at some time after any offences have been dealt with, a Court that deals with the third offence that gives rise to the declaration actually has the power to quash the declaration at the same time. At Prime Lawyers, we ensure that we remain alert to the fact that a declaration is going to be made when representing someone for a "relevant offence" to try and persuade the Court at the time of sentencing to quash the declaration (in order to save the client the expense of having to make an application at a later date).
Although the Court has the power to quash the declaration at the time it is made, most Courts prefer to not take any action and instead, allow the disqualified driver to prove him or herself by seeing out the Court ordered disqualification period for the actual offence, before returning to Court to make an application to have the habitual offender declaration quashed.
Our traffic lawyers are knowledgeable in this area of law and are experienced in representing drivers who have been declared habitual offenders and require an end to the disqualification to allow them to get back on the road sooner.
If you have been declared an habitual traffic offender and wish to make an application to quash the habitual offender declaration, our experts at Prime Lawyers - Traffic Law Division can help. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Removing Licence Disqualifications
Finally, in October 2017, the NSW goverment changed the road transport legislaton to allow for licence disqualifications to be removed after a certain period of time.
Up until October 2017, any Court ordered disqualifications remained in place until those disqualification periods were served; no matter how long those periods were, how long the driver had already been off the road and irrespective of any dramatic change in the person's circumstances.
If you are currently serving a lengthy disqualificaitron period (and still have quite a bit to go) AND you have not committed a driving offence for some time, then contact us to speak to one of our traffic lawyers, and we can advise you whether or not you would be eligible to make an applicaiton and further, we can advise you on your prospects of success.
Your licence is important to you. Don't delay obtaining expert legal advice and the opportunity to get back on the road sooner rather than later.
