Driving while Disqualified Suspended or Cancelled

Driving While Disqualified

It is a criminal offence to drive whilst disqualified in NSW. The courts takes a particular dim view towards this type of behaviour because as the disqualification is the order of a court the continued act of driving is a proverbial middle finger to that court.


However there are things to consider which may minimise and even avoid a conviction.


DRIVING WHILE DISQUALIFIED, SUSPENDED, CANCELLED OR REFUSED



Over many years of practice, I have had cause to defend people who have been charged with these offences.


It is a criminal offence to drive whilst disqualified in NSW. The courts take a particularly dim view towards this type of behaviour because as the disqualification is the order of a court the continued act of driving is a proverbial middle finger to that court.


Sometimes the number of disqualifications that can be imposed for varying offences can be confusing as to when they start and finish. On occasion because of that confusion drivers and riders can find themselves in court.


During a period of disqualification, it is an offence to drive, or make an application for a licence and state the person's name falsely or incorrectly or omit to mention the disqualification. The penalties can be imprisonment and disqualification. In the writers experience custodial implications are rare and generally reserved for serial offenders.


There are similar provisions for Driving while suspended, refused and cancelled. There are also similar provisions for situations where licences are cancelled or suspended for non-payment of fines. However, in the writers experience the courts can be lenient in imposing penalties for the latter instance and have provision to do so. I have had cases where for instance a person has not voted in a local council election. They were issued a fine for failing to vote and for some reason have not received the fine, and then had their licence cancelled and been breached for driving when stopped for an RBT.



However, there are things to consider which may minimise and even avoid a conviction in the cases of driving disqualified, suspended, cancelled or refused:


1 The reasons the person was driving. In some cases, the person may have been unaware of their disqualification, suspension, or cancellation. In the alternative there were extenuating circumstances such as a medical emergency. However, in theses instances courts can be sceptical and the careful accumulation of relevant evidence is necessary.


2 References, I will always get my clients to get personal references talking about my client’s good character. 


3 A letter from your employer if you need your licence for work either because you must drive for work such as truck drivers, courier drivers, tradies, and salespeople. Or you may live in a remote location where public transport is non-existent and work odd shifts, which would mean that your ability to get to your job is seriously compromised. Courts appear to be less sympathetic to a persons need for a licence for work and this argument if relevant should be prepared carefully.


4 If you have medical conditions that either restrict your ability to catch public transport or require attendances to various medical or rehabilitation appointments, this may be relevant. In these circumstances I get my clients to get the necessary medical reports addressing the issues as I see fit.


5 Any other extenuating circumstances (such as sick family members) may be matters to be considered but again I look for what evidence is available or needs to be obtained to support the claim to the court.


6 My client’s criminal and traffic record.


7 If my clients haven’t previously done so I get them to enrol and attend the traffic offender program.


The article as written is for your information and interest only and is based on New South Wales law only. It is not intended to be comprehensive and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters I am raising may not be of specific relevance to your situation but may have a general application and you must seek specific advice tailored to your circumstances. I will also gladly talk to anyone on the phone if confused or want clarification.

 


Chris Kalpage

Kalpage and Co Solicitors

kalpageandcosolicitors.com.au

0418211074


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“Justice is the sum of all moral duty.”

(William Godwin)

Driving While Suspended

It is a criminal offence to drive whilst suspended in NSW. The courts takes a particular dim view towards this type of behaviour however unlike driving whilst disqualified the court may treat such infractions with a degree of leniency dependent upon the circumstances.


Again there are things to consider which may minimise and even avoid a conviction.

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GOING TO COURT TO APPEAL A TRANSPORT FOR NSW (TfNSW) SUSPENSION


Following on from my last article relating to the powers of the TfNSW to suspend your licence for a multitude of reasons I will now embark on the particular solutions to the problem by way of a licence appeal heard in the local court.

The power of the TfNSW, an administrative body, to take away your licence is limited to some extent by the ability for the court to review their decision. The first thing to do when you get the letter from the TfNSW is to ensure you read it carefully and determine on what basis your licence is being suspended. The second is to check whether you have a right of appeal to the local court and thirdly if you do ensure that you attend the local court and lodge your appeal within the time provided.

The staff at the court will draft the document for you and then will give you a date. Before setting the date check with your lawyer to ensure that it is suitable to them, and the court will help you find a suitable date for all concerned.


These are some of the things (though not exhaustive as each case is different) that I get my clients’ to do in preparing for the hearing:


1 If it is a speed suspension and is not an exceptional circumstances appeal, (which have different requirements) I get my clients to take photographs of where the incident took place and if it is of benefit tender them into evidence in court. For example a speeding event on a three lane freeway or straight bit of country road is quiet different to speeding in a built up area or school zone and it provides the court with context.


2 References, I will always get my clients to get personal references talking about my client’s good character. I normally review the draft references to ensure that they cover the issues. The referee should state that they know what the client has done and how they know them. Further, it is beneficial if they have driven with them to state what a cautious and attentive driver they are if relevant. But be aware if a referee says that you are a good driver who always obeys the road rules and you have an extensive traffic record a Magistrate may give little weight to the reference on the basis that the referee doesn’t know you very well. So sometimes less is more and I will often look for inconsistencies between what the referees say and the personal matters as they relate to my client before a magistrate picks the inconsistency and diminishes the strength of our case.


3 A letter from your employer if you need your licence for work either because you have to drive for work such as truck drivers, courier drivers, tradies, and sales people.


You may live in a remote location where public transport is non-existent and work odd shifts, which would mean that your ability to get to your job is seriously compromised. Courts appear to be less sympathetic to a persons need for a licence for work and this argument if relevant should be prepared carefully.


4 If you have medical conditions that either restrict your ability to catch public transport or require attendances to various medical or rehabilitation appointments, this may be relevant. In these circumstances I get my clients to get the necessary medical reports addressing the issues as I see fit.


5 Any other extenuating circumstances (such as sick family members) may be matters to be considered but again I look for what evidence is available or needs to be obtained to support the claim to the court.


6 If my clients’ haven’t previously done so I get them to enrol and attend the traffic offender program.


The above is by no means an exhaustive list and very much is determined by my client’s circumstances. So it is often best to speak to a lawyer.


As stated in my earlier article in certain licence appeals the court has one of three options:


They can deny the appeal and you will lose your licence for the allotted time allocated by the TfNSW,


They can allow the appeal and you do not incur any suspension period, or


They can vary the period and I have had cases where the court has not been prepared to allow the appeal but have varied the period from 3 months to two weeks for example.


The article as written is for your information and interest only and is based on New South Wales law only. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters I am raising may not be of specific relevance to your situation but may have a general application and you must seek specific advice tailored to your circumstances. I will also gladly talk to anyone on the phone if confused or want clarification.


Chris Kalpage

Kalpage and Co Solicitors

kalpageandcosolicitors.com.au

0418211074

“Common sense often makes good law”

(William O. Douglas)

Licence Suspensions

THE POWERS OF TRANSPORT FOR NSW (TfNSW) AND POLICE TO SUSPEND YOUR LICENCE

The power of the TfNSW to impact your life by suspending your licence is quite significant. Often people are caught unawares and pay a fine without giving it a moments thought only to be shocked when they get that envelope with a letter of suspension contained inside.

There are a multitude of reasons that the TfNSW can suspend your licence these are but just a few:


If you are a red P or a green P licence holder and go over your allotted points you will receive a letter of suspension which is generally for 3 months depending on the number of points accumulated. If your licence is being suspended for accumulation of points you will be offered a right of appeal to the local court. The advantage of the licence appeal in these circumstances is that the court has one of three options:


They can deny the appeal and you will lose your licence for the allotted time allocated by the TfNSW,


They can allow the appeal and you do not incur any suspension period, or


They can vary the period and I have had cases where the court has not been prepared to allow the appeal but have varied the period from 3 months to two weeks for example.


If you have a full licence and you go over your allotted points you will receive a letter of suspension for a period of time but you should be offered a good behaviour licence for a period of one year. The problem with the good behaviour licence is that if you breach it, you will get a suspension for double the original suspension period. However that breach is only activated on payment of the fine or conviction by the court.

Depending on the stakes the new potential breach charge may be worth defending for if not convicted or if dealt with under section 9 and 10 of the Crimes (Sentencing Procedure) Act with the offence being proven but the court not proceeding to conviction you will not be in breach of your good behaviour licence.


If you are breached for exceeding the speed limit by more than 30 km/h and you are not a learner or provisional licence holder you will get a 3-month suspension from the RMS on paying the fine. If you have been breached for an over 30 speed and paid the fine and the TfNSW have suspended you the above appeal scenarios as referred to for P plate drivers will apply.


This also used to be the case for an over 45 speed and the 6 month suspension but over time the government changed the appeal rights where to be successful you have to establish exceptional circumstances which is a much harder standard of evidence.


If you are breached for exceeding the speed limit by over 45 km/h you will receive a 6-month suspension from the RMS if breached by speed camera. However if breached by police you will receive an immediate police suspension of 6 months at the roadside and potentially an impounding of your vehicle for 3 months. You still however have a right of appeal to the court. This immediate police suspension and exceptional circumstances appeal also applies to an over 30 speed if you are a learner or provisional licence holder for an over 30 offence.


Similarly you can receive an immediate police suspension for a charge of drink driving, street racing, aggravated burnout offences, and drive manner dangerous charges.


The TfNSW can also suspend your licence on medical grounds for which you also have a right of appeal in the Local Court.


The article as written is for your information and interest only and is based on New South Wales law only. It is not intended to be comprehensive, and does not constitute and must not be relied on as legal advice. Please be aware that every case is different and the matters I am raising may not be of specific relevance to your situation but may have a general application and you must seek specific advice tailored to your circumstances. I will also gladly talk to anyone on the phone if confused or want clarification.

Chris Kalpage

Kalpage and Co Solicitors

kalpageandcosolicitors.com.au

041821107

Book a consultation
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