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Defences to a Disqualified Driving charge

Disqualified driving is an extremely serious traffic charge in Queensland.  The Courts are particularly hard on these types of offences as to be charged with disqualified driving you must have already been disqualified by a court.   Disqualified driving is the most common traffic offence that causes people to be sentenced to jail.

The charge is different to a simple unlicensed driving charge as there must be a previous disqualification by the courts still in place at the time the offence was committed.

The court will impose a further minimum disqualification of 2 years however there may be circumstances where there is a defence to a disqualified driving charge.

 

The vehicle was not driven on a road

The law requires that to be guilty of disqualified driving the person must be driving a vehicle on a road.  If the vehicle is being driven on private property this may be a full defence to the charge.

 

You weren’t driving the vehicle

There are often occasions were someone has taken or borrowed your vehicle and either triggered a speed camera or more seriously has evaded the police.  In those circumstances it is critical to get immediate legal advice as very short and strict time limits may apply to being able to nominate another person as the driver.  If you fail to nominate the other driver within the time limits then you can be legally declared the driver, also if you pay a speeding ticket or infringement notice may deemed to be the driver.

 

You were driving for an emergency

The law allows an exception for driving in an emergency.  This in the past only extended to driving emergency situations such a person to hospital where no other transport was available.  The courts have recently however begun to accept that not all situations require a dire emergency.  For example we were successful in having a disqualified driving charge withdrawn against our client in the circumstances where our client drove to a chemist to get Panadol because everyone in the house was sick and he was the only person who could drive.

The key question is not what a reasonable person would have done but what an ordinary person in the shoes of the accused could have done.  Once the defence is raised the onus fall on the prosecution to prove an ordinary person would not have acted in the same way as the accused.

 

There are also other defences such as mental capacity which are not covered in this article.

 

If you have a defence then in most cases you will need to take the disqualified driving charge to trial to be found not guilty.  There are however often occasions where it is possible to make submission to the Prosecution Service to drop the charge before it goes to trial.  This is a very involved process and should never be undertaken without a lawyer.

If the matter goes to trial then the charge would be held before a Magistrate but not a jury.  If the court finds a person not guilty then that is the end of the matter.  If however after trial a person is found guilty then it is important to note the further disqualification period only starts from when the Magistrate makes his or her decision.  The Magistrate will also impose a fine and depending on a number of factors including traffic history might impose a term of imprisonment which may or may not be partly or wholly suspended.

 

If you think you have a defence, want to engage us or just need further information then you can either;

  1. Visit on disqualified driving webpage
  2. Use our contact form
  3. Call us on 1300 952 255 seven days a week, 7am to 7pm

 

 

This article is written by Belinda Smyth and provides general information only.  It is not intended to be legal advice.

Published in Legal Blog
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Unlicenced Driving

The penalties handed down for unlicenced driving charges can vary greatly depending on the circumstances on how you came to be unlicenced in the first place.

If you forgot to renew your licence or you have never held a licence

The penalty for this type of unlicenced driving charge is at the Magistrates discretion and in most circumstances, depending how long your licence had been expired or your traffic history, can result in no suspension being put on your licence and you just receiving a small fine.   There are however circumstances where if you were never licenced that the court will impose a 3 month disqualification.

However, if you have received an unlicenced driving charge in the past 5 years and are caught again then there is a penalty of between 1 to 6 months.

If you had a SPER debt and failed to pay it

Often people refer their fines to SPER to pay off. When SPER received the debt a payment agreement is made between SPER and yourself. Should you fail to honour the agreement and make the agreed payments your licence will be suspended for anywhere between 1 to 6 months. The mandatory minimum suspension time is the 1 month if you were caught driving on a SPER suspended licence and the Magistrate has no choice but to suspend your licence. In these types of unlicenced driving charges the fact that you did not receive the letter from SPER advising that your licence was going to be suspended on a certain date is not an acceptable defence. The Legislation states that Queensland Transport only need to show they sent the letter to you, not that you received it.

If you are demerit point suspended

If you exceed your demerit point limit (12 points in 3 years) you will be sent a letter from Queensland Transport. This letter will give you the option to have your licence suspended for a 3 month period or to go on a good driving behaviour period. If you do not reply and advise them which option you would like to select by the nominated date you will automatically be given the 3 month suspension. If you are caught driving during the 3 month period the penalty is a mandatory 6 month licence suspension.  With this one particular charge, unfortunately engaging a Lawyer cannot achieve a lesser disqualification period.

Failing to have your licence re-issued by QLD Transport after serving a suspension period

If your licence is suspended by the Court you should have handed your licence in when the penalty was handed down in Court. Upon completion of the suspension period you must attend Queensland Transport and have your licence issued again.  Until you do this you are deemed suspended still and if you are caught driving the penalty can be between 1 to 6 months.

Driving during your Court or Police ordered licence disqualification period

If you are disqualified from driving in a Court or are on a licence suspension period by the Police and are caught driving within the time you were ordered not to, it is classed as disqualified driving which holds a licence disqualification anywhere from 2 to 5 years. For more information on disqualified driving charges see - http://drivinglaw.com.au/services/disqualified-driving.html

Many people are unaware that they are unlicenced when they are charged with the offence. This can be due to multiple reasons. Some ways to avoid being expectantly charged with unlicensed driving are:

  • Always ensure that your current residential address is known to Queensland Transport Department and SPER, if you have a debt with them.

 

  • If you work away from home you should have someone monitor your mail in case any correspondence comes to you advising you have an overdue SPER debt, you have exceeded your demerit point limit or you receive a fine.

 

  • If you have a SPER debt that is direct debited from a bank account always ensure there are funds available for the payments to come out from. Also, if you change banks or close a bank account ensure the SPER payments were not connected to that account. If so you need to advise SPER of the bank account detail change immediately.

 

Here at Clarity Law we represent unlicenced drivers in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients.  Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do.  We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

For more information visit our drink driving page or call 1300 952 255 7am – 7pm seven days a week

 

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  

Published in Legal Blog