Traffic Law

Driving While Suspended

When charged with driving while suspended NSW drivers face automatic disqualification periods, with additional penalties that can be severe for repeat offenders. A person's driver's licence can be suspended by either the RMS or the police. The RMS has several powers to suspend licences, whereas the police can only do so in limited circumstances. Below are some of the more common reasons and typical traffic offences that cause licences to be suspended by the RMS and the police.

- Exceeding allowable demerit point limit
- Exceeding the speed limit by more than 30km/h
- Immediate suspension if charged with certain drink driving offences or other forms of dangerous driving, certain speeding offences
- Non payment of fines

The Law

A person whose driver licence is suspended must not:

(i) drive on a road a motor vehicle of the class to which the suspended licence relates, or

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

Penalties 

Where the suspension was for something other than non-payment of fines:

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


Where the suspension is for non-payment of fines:

PENALTIES

FIRST OFFENCE

SECOND OR SUBSEQUENT OFFENCE

Maximum court imposed fine

$3,300

$5,500

Maximum gaol term

N/A

6 months

Automatic disqualification period

3 months

12 months

Minimum disqualification period

1 month

3 months

Maximum disqualification period

Unlimited

Unlimited


Commentary

The Court has the discretion to impose a number of penalties for the charge of "drive whilst suspended". It is important to note that if you plead guilty (or are found guilty by the Court) the Court still has the discretion not to record a conviction against you. This is called a section 10 dismissal of the charge whereby you are found guilty but not convicted. If you are not convicted, then you cannot be penalised. 

The Court will consider several factors in determining whether you are an appropriate candidate for a section 10 dismissal such as your driving record, your good character, your need for a licence, your early plea of guilty and your reason for driving.

In determining any penalty or period of disqualification to be imposed on a person for driving whilst suspended due to non-payment of fines a Court must also take into account the effect the penalty or period of disqualification will have on the person’s employment and the person’s ability to pay the outstanding fine that caused the person’s driver's licence to be suspended. 

If you plead guilty (or are found guilty by the Court) and the Court does not consider it appropriate to exercise its discretion to deal with the matter pursuant to section 10, the Court must at least impose an automatic/minimum disqualification period. The Court also has the discretion to impose fines, a gaol term, community service orders or a good behaviour bond. 

Defences

It is important to first determine whether the driver's excuse for driving may amount to a defence to the charge. Our lawyers have experience determining whether a defence exists to the charge of drive whilst suspended and more importantly, the chances of such a defence succeeding and are able to defend you in Court should you decide to plead "not guilty". An obvious defence is that you were not driving, where you instruct us to force the police to prove identity of the driver; or, where it is proved that you were in the driver's seat, to force the police to prove that you were actually driving at the time. 

Another way to defend allegations of drive whilst suspended is on the basis of you having held and honest and reasonable mistaken belief that you were entitled to drive. Once the issue is able to be raised on the evidence, the prosecution is then required to persuade the Court that an honest and reasonable mistake did not occur. Although it is easy to raise this defence, it often does not prove successful. A typical scenario is where someone argues that they did not receive a notice of suspension, informing them that they were not allowed to drive. Even if it is accepted by the Court that prosecution cannot prove that the belief was an honest one, it is usually on the second limb - whether the belief was reasonably held that accused person fails.

If after we assess your case you instruct us that you wish to proceed with a plea of "guilty", then we have the experience to represent you on a guilty plea and present a plea in mitigation of sentence in order to help you achieve the best possible outcome.

If you have been charged with drive whilst suspended and require legal assistance, our experts at Prime Lawyers - Traffic Law Division can help. We have been representing clients charged with driving while suspended NSW wide for many years and appear before most Local Courts. Contact us to make an appointment with a traffic lawyer at your nearest Prime Lawyers office.

Get expert advice from one of our Traffic Lawyers Parramatta, Sydney, Chatswood, Sutherland or Wollongong today.

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