Traffic Law

Driving While Disqualified

A person can be disqualified from holding or obtaining a licence due to committing certain driving offences. It is only the Court that has the power to disqualify a driver, not the RMS or the Police.

There are certain offences that attract mandatory disqualification periods upon conviction, such as:

- All drink driving offences
- All drug driving offences
- Driving at a speed or manner dangerous
- Menacing driving
- Street racing
- Exceeding the speed limit by more than 30km/h
- Negligent driving occasioning grievous bodily harm (GBH) or death
- Driving whilst licence is suspended
- Driving whilst disqualified
- Other dangerous driving offences
The Court also has discretion to disqualify a driver for any other driving offence that comes before a Court, where the person is found to be guilty of the offence. Therefore, in most circumstances where someone is before a Court for a driving offence, they are exposed to the real possibility of being disqualified from holding or obtaining a licence. 

The Law

A person who is disqualified from holding or obtaining a licence must not:

(i) drive on a road during the period of disqualification, or

(ii) make an application for a driver's licence during the period of disqualification and in respect of such an application state the person’s name falsely or incorrectly or omit to mention the disqualification.

Penalties 

The available penalties for driving whilst disqualified are as follows:

PENALTIES

FIRST OFFENCE

SECOND OR SUBSEQUENT OFFENCE

Maximum court imposed fine

$3,300

$5,500

Maximum gaol term

6 months

12 months

Automatic disqualification period

6 months

12 months

Minimum disqualification period

3 months

6 months

Maximum disqualification period

Unlimited

Unlimited



Commentary

New South Wales driving laws can be harsh and the penalties that follow upon conviction for many driving offences are severe. The inability to drive for a prolonged period can me a a reduction in income, loss of employment or the derailment of a particular career. Not being able to continue in one's chosen career can also mean the closing down of a a business and the inability to maintain mortgage repayments. In short, a disqualification period can have devastating consequences.

For that reason, many drivers find it difficult to not drive during a period of disqualification or simply, feel that they are placed in a position where they need to take risks. Of course, the problems that they initially face as a result of a disqualification are magnified if they are detected and later charged by police for driving whilst disqualified.

The typical penalties for driving whilst disqualified vary; and although it is not impossible for the Court to decide to not convict an offender (and therefore not disqualify them further), in the overwhelming majority of cases, a conviction and further disqualification will apply. For repeat offenders, the severity of the punishment, in addition to any disqualification period, increase dramatically and it is not uncommon for repeat offenders to find themselves facing some form of a custodial sentence, including full time imprisonment.

Driving whilst disqualified is considered a serious offence by the Courts, particularly as the offending can be viewed as a direct contravention of a Court order. If continued disqualification periods do not appear to stop a particular offender from re-offending, then Courts often feel that they are left without a choice but to sentence the offender to a term of full time imprisonment.

Second or Subsequent Offence

As noted in the above table, the penalties for a "second or subsequent" offence are more severe for driving whilst disqualified and the automatic/minimum disqualification periods double. It is important to note that an offence of driving whilst disqualified is a second or subsequent offence if the offender has committed certain types of major offences within the period of 5 years prior to the most recent offence. As the previous offence does not have to be a drive whilst disqualified offence, and disqualification periods are generally imposed as a result of the commission of a major offence, invariably, whenever someone is charge with drive whilst suspended, it will be considered a "second or subsequent offence". (For a more detailed analysis on the meaning of "second or subsequent offence", click here.)

Defences

It is possible to defend a charge of drive whilst disqualified. The most obvious defence available to the charge is that the accused person was not driving a motor vehicle. This comes down to the particular circumstances of the alleged offending and whether the police are able to prove the identify of the driver of the vehicle. Sometimes, charges are defended on the basis that despite the accused person occupying the driver's seat of the vehicle, he or she was not driving.

Another way of defending allegations of driving whilst disqualified is to raise the reasonable possibility that the accused honestly believed that he or she was entitled to drive. This "defence" can only successfully be argued in very limited circumstances, as it would essentially involve some evidence that the accused person was not aware of the disqualification (or, as some recent Victorian cases have found, was not aware that he or she was not entitled to drive). This usually means that the person was not present in Court when they were convicted and therefore, disqualified. Not only would this occur in limited circumstances, but most Courts would find that not being at Court and then not making attempts to find out the Court outcome once a matter was in Court is simply not reasonable.

Our traffic lawyers have experience defending drive whilst disqualified charges and, where a plea of guilty is entered and the matter proceeds to sentence, appearing before the Court and presenting a plea in mitigation of sentence to obtain a more lenient penalty.

If you have been charged with driving whilst disqualified 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 traffic lawyers in Parramatta, Sydney, Chatswood, Sutherland and Wollongong.

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