Will my disqualification be cumulative ?

Tuesday, 12 September 2023 14:39

Will my disqualification be cumulative ?

Written by Russell Tannock

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Introduction

Queensland’s traffic legislation explicitly states the circumstances in which multiple periods of licence disqualification are to apply cumulatively. Unfortunately, these sections (specifically, ss 90B and 90C of the Transport Operations (Road Use Management) Act 1995) are some of the most difficult sections to read and understand in the legislation. This is unfortunate for two reasons. Firstly, because even lawyers, magistrates and judges struggle to understand these sections. Secondly, Transport and Main Roads applies court-ordered drivers licence disqualifications to your traffic record. In our experience, Transport and Main Roads frequently apply cumulative drivers licence disqualifications incorrectly.

The essential difference between ss 90B and 90C is that the former applies to licence disqualifications for offences committed at different times. The latter applies to licence disqualifications for offences committed at the same time. However, both the scope and operation of these two sections differ from each other significantly.

Although these are difficult sections to understand, they are not impossible to understand. Here we offer you our interpretation of these sections and how we believe they operate in practice.

Section 90B: Cumulative Disqualifications for Offences Committed at Different Times

This section is the simplest of the two cumulative disqualification sections. It is also the most difficult to understand. In short, if you are convicted of any of the following offences:

Any drink-driving or drug-driving offence;
dangerous operation of a motor vehicle;
Careless driving; or
Racing or speed trials

You will receive a mandatory period of licence disqualification.

The traffic legislation also contains an infrequently-used power for the court to disqualify you from driving, even if you are found not guilty of the abovementioned offences but only after the charge has been heard at trial.

Any of the abovementioned licence disqualifications potentially attract the operation of s 90B.

If, before that licence disqualification ends, you are convicted again of one of the abovementioned offences, that second licence disqualification does not commence until the first licence disqualification has ended. In other words, the second licence disqualification is cumulative on the first licence disqualification. This cumulative law applies to third, fourth, licence disqualifications that result from convictions mentioned above if any previous licence disqualifications are still current at the time of conviction.

Confusingly, this section gives two examples of when cumulative licence disqualifications might apply. The first example is the most confusing and is reproduced in full here:

D is charged with a drink driving offence. Before the court hears that charge D is charged again with a drink driving offence. The court convicts D of both offences and disqualifies D for a period of 2 months for 1 offence and a period of 4 months for the other offence. The total period of disqualification is 6 months.

The confusion lies in the wording of the section, which states that the second disqualification is cumulative on the first disqualification, if the second disqualification occurs before the first disqualification has ended. On the face of it, the first and second disqualification both occur at the same time. Although it could be argued that a licence disqualification has not ended before it has begun, this is pure sophistry. There is a better way to read this section so that the example makes sense.

Section 90D of the Transport Operations (Road Use Management) Act 1995 states that, for the purposes of determining whether subsequent licence disqualifications are cumulative, it is immaterial whether the licence disqualifications are ordered at the same hearing. The same section also states that it is immaterial in which order the licence disqualifications are ordered or imposed. Lastly, it also states that the cumulative licence disqualification laws apply even if a different part of the traffic legislation states that licence disqualifications commence at a particular time.

In the above example, D is disqualified from driving under s 86 of the Transport Operations (Road Use Management) Act 1995, which states that licence disqualifications take effect from the date of conviction. Therefore, the second licence disqualification (whichever is considered the “second” disqualification), under that section, occurs simultaneously with the first disqualification (ie, from the date of conviction). However, as that would mean that the second conviction occurs on “day one” of the first conviction (ie, before the first conviction has ended), s 90B takes effect and the second conviction applies cumulatively.

The route to cumulative disqualification is torturous but sound as a matter of logic.

Section 90C: Cumulative Disqualifications for Offences Committed at the Same Time

The offences to which this section applies overlap with, but are slightly different to, the offences to which s 90B applies. The offences to which this section applies are:

Any drink-driving or drug-driving offence;
Unlicenced or disqualified driving;
Failure to provide a specimen of breath or sample of blood at a police station or booze bus;
Offences relating to interlocks; or
Dangerous operation of a vehicle.

These offences all attract mandatory periods of licence disqualification (with the exception of “simpliciter” unlicenced driving offences).

As already mentioned, the court has the power to disqualify you from driving even if you are found not guilty (after a trial) of dangerous operation of a motor vehicle, drink- or drug-driving, careless driving, racing or speed trials. Furthermore, the traffic legislation may disqualify you from driving if the police give you notice that they reasonably believe that you committed certain low-range or zero-range, drink-driving offences. Lastly, the court has a general power to disqualify you from driving if you commit any offence and committing the offence involves the use of a motor vehicle.

Section 90C could potentially apply to any of the abovementioned licence disqualifications.

While this section is more extensive than s 90B, its operation is far easier to understand. In essence, for this cumulative law to operate, you must have committed one (or more) of the above offences and an unlicenced driving offence that also attracts a period of disqualification. The various sub-sections to s 90C contemplate the different ways that a person may be unlicenced. Nevertheless, driving unlicenced is the prerequisite for the operation of cumulative disqualifications:

Per s 90C(1) " ... and, when the person does the act, the person commits an offence against section 78(1) ..."

Per s 90C(2) "... when the person does the act ... the person does not hold a driver licence ..."

Per s 90(4) "... when the person does the act ... the person does not hold a licence because the person is disqualified ..."

Once you are convicted, all the resultant licence disqualifications are cumulative on each other.

The best way to illustrate the operation of this section is by reference to two examples: one that results in cumulative licence disqualifications and one that does not.

Suppose the police charge you with dangerous operation of a motor vehicle. At the time of the offence, your licence was suspended because you accumulated too many demerit points. The police also charge you with unlicenced driving whilst demerit-point suspended. You committed both of these offences at the same time. The resulting licence disqualifications are cumulative (ie, the second licence disqualification does not start until the first once has ended).

Now suppose you are intercepted by police and administered a random breath test and a mouth swab. The police find that your blood-alcohol concentration is over the general alcohol limit. They also detect cannabis in your system. You are subsequently charged with low-range, drink-driving and with driving whilst a relevant drug is in your system. These are offences committed at the same time. However, because your licence was valid, the resulting licence disqualifications are concurrent (ie, the two periods of disqualification both commence on the date you were convicted of the offences).

In our experience, many of our clients who fall into the latter category often receive notification from Transport and Main Roads that their licence disqualifications have been applied cumulatively, even though their licences were valid at the time of the offending. We have a high success rate of getting Transport and Main Roads to correct this error and applying the disqualifications concurrently.

Conclusion

Interpreting the laws of cumulative licence disqualifications is difficult. Fortunately, as we specialise in traffic law, we have taken the time to understand how these complicated laws work and we can give you our expert advice before you even enter the courtroom. Few things are more disheartening to clients than to find out that their overall disqualification from driving extends far beyond what they were expecting because they did not understand or expect cumulative periods of licence disqualification.

That is why it is important to seek quality legal advice as soon as possible after you have been charged with any offence that you think may result in having your licence disqualified.

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Last modified on Wednesday, 13 September 2023 15:16

Published in Legal Blog

Russell Tannock

Russell Tannock is a senior traffic lawyer at Clarity Law. Russell appears in all courts in South East Queensland helping clients with traffic charges in court.

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