Driving unlicensed is one of most common reasons that people are required to attend a Queensland court. There is a wide variety of unlicensed driving charges and consequently a wide variety of potential penalties. This guide seeks to give you an understanding of a charge of unlicensed driving and the penalty the court may impose. This guide is in relation to Queensland law only.
What is unlicensed driving
In essence unlicensed driving is where a person has driven on the road and at the time they did not hold a licence.
The law states that a person can be charged with unlicensed driving where;
A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.
So then how does a person end up having no authority to drive? There are generally 6 main ways people can lose their authorisation to drive on the road and they are;
Will I need to go to court?
For a simple offence of driving on an expired licence the police can issue a ticket as long as the driver did not previous unlicensed driving charge in the last 5 years. For all other offences, subject to some minor conditions, the police are required to issue a notice to appear in court. The court will be the Magistrates court closet to where the unlicensed driving occurred.
How does an unlicensed driving charge come about?
We have represented almost 1,000 people with unlicensed driving charges and the most common ways the charges can come about are;
What will happen in court?
Generally most court matters follow this procedure;
What penalties can the court impose
Table below sets out the disqualification ranges available to the court. In addition the court can impose fines and in serious cases, especially disqualified driving charges, a term of imprisonment.
Forgot to renew licence or never had a licence
Up to Magistrate, can be no disqualification in appropriate circumstances
Had SPER debt but didn’t pay
1- 6 months
Was demerit point suspended
Was disqualified by court
If person has previous unlicensed driving charge in last 5 years and was driving because forgot to renew licence or get a licence back
Was not authorised to drive by Queensland Transport for medical reasons
Up to Magistrate, can be no disqualification in appropriate circumstances
Are there any defences?
Defences are available in certain circumstances. Possible defences include;
In addition there might be available (in limit situations) a defence of driving for an extraordinary emergency. The Criminal Code at section 25 states;
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
For example if a person needed to be driven to hospital, it was a life threatening situation and no other options were available. In other case’s the court have been willing to accept where a person was driving to get medication for a sick child. As with any potential defence this area of law is particularly complicated and you will need to seek legal advice if you think you have a defence.
What is not a defence is to claim you did not receive the notification that your licence was going to be suspended. The court needs only be satisfied that the notice was sent to the last known address of the driver. On average we would have 3-4 people a week ring up saying they have been charged with unlicensed driving because the notice never arrived or was sent to an old address. Queensland Transport wont send a notice of suspension to a PO Box.
an I get a work licence or other permit to drive during a disqualification?
No, there is no ability to apply for a work licence, special hardship licence or any permit to drive. If you lose your licence you will not be able to drive for any reason.
Is there any way to negotiate with the prosecutor to have the charge withdrawn?
In many situations it may be possible to negotiate with the police prosecutor to try and have the charge withdrawn or reduced to a charge that does not carry a mandator period of disqualification. Negotiations tend to work best for charges such as unlicensed driving due to a SPER suspension or demerit points. We have a article on negotiating with a prosecutor that can be found here
We are constantly negotiating with prosecutors on behalf of clients and we know what the Prosecutor needs to be told to try and be successful.
Should I engage a lawyer to apply for handle my charge?
While we obviously have a vested interest in people using a lawyer for their charge we are of the strong opinion that if your licence is critical to continuing to earn your livelihood then you use an experienced traffic lawyer.
Some advantages to using a lawyer includes;
If I’m going to engage a Lawyer why should I engage Clarity Law?
At Clarity Law we are experts in Queensland traffic law. We are in the court every single day helping people with traffic charges. We have handled almost 1,000 unlicensed driving charges. You simply can’t find a lawyer with more experience in the courts.
We also have upfront fixed fees with no hidden charges. Our prices are on our website unlike most law firms. The prices are listed at www.drivinglaw.com.au/prices.html
We are also a no pressure firm which means feel free to ring, we can give initial advice and help but you aren’t pressured to engage us but of course we are more than happy if you do.
We also cover every court in South East Queensland from Coolangatta all the way to Gympie and out to Toowoomba.
Our offices are located at.
Level 3, 14-18 Duporth Avenue
Bluedog Business Centre
Level 1, 16 McDougall Street
Corporate Centre One
Level 15, 2 Corporate Court
M1 Business Centre
Level 2, 3972 Pacific Highway
Ipswich Corporate Office
16 East Street
North Brisbane Serviced Offices
3/22-24 Strathwyn Street
How do I get more information?
We are open seven days a week from 7am to 7pm.
Telephone: 1300 925 255
Contact Form: www.drivinglaw.com.au/contact.html
Disclaimer: This article is for general information and is not legal advice. The law or the practice of the court may have changed since this article was published. Always obtain legal advice if you need to appear in court.
Liability limited by a scheme approved under professional standards legislation
Whenever you are charged with a traffic offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.
For the purpose of this article, we will use two examples. One is an unlicensed driving charge, the other is a dangerous operation of a motor vehicle charge (“dangerous driving”).
Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.
So let's first take the example of an unlicenced driving charge. Unlicenced driving carries different penalties depending on what exactly the unlicenced driving component relates to. For example, unlicensed driving charge at its worst can be a disqualified driving charge where a person has deliberately driven after the court disqualified their licence. In that case you are looking at a minimum of two years licence disqualification or it might be an unlicensed driving charge as a result of a licence becoming expired and you simply not realising it and that you drove on that expired licence and for that charge there is no mandatory licence disqualification.
Let's use the example of a demerit points suspension. That is where a person has driven whilst their licence has been suspended due to the accumulation of demerit points. This typically occurs where a person goes through their 12 (or 4 if a provisional licence holder) demerit points and then elects to lose their licence for three months or makes no election and is automatically assigned a three month licence suspension and then drives during that period. You will get a notice to appear in the Magistrates court on the unlicensed driving charge whilst the demerit points suspended. That charge carries with it a mandatory disqualification period of six months and there is no work licence or special hardship licence available for this charge. The ability to negotiate with the prosecution unit over the charge is a critical factor.
Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place. However, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.
In the case of the demerit point suspension, given that there is a mandatory six months disqualification, what typically happens is the lawyer would seek to try and reduce the unlicensed driving (whilst demerit point suspended) charge down to a lesser charge of unlicensed driving charge that does not carry mandatory disqualification periods. Now there are a number of factors that need to go into whether or not the prosecutor would accept that reduced charge and a person’s traffic history is one of the main factors. Other things to look at is the need for that person to drive and exactly why their licence came to be suspended. For example, if you elected to lose your licence for three months and drove, then the prosecutor is less likely to agree to reduce the charge than if you had gone through your demerit points, not realised this and you had received an automatic three months suspension from Queensland Transport because you did not elect a good driving behaviour period.
What would typically happen is if the charge is reduced or withdrawn then on the next court date or on the first date if the first court mention date has not occurred yet the police prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.
Lets take a look at another example, that is dangerous operation of a motor vehicle (“dangerous driving”). This is a serious charge. It is a criminal charge as opposed to a traffic offence and carries with it the real risk that you will lose your licence for at least six months and possibly much, much longer.
Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened, including the alleged driving and how that driving is alleged to be dangerous.
Negotiations or case conferencing with the prosecutor tends to look at trying to get that dangerous driving charge reduced to careless driving. A dangerous driving charge carries with it a minimum of six months disqualification if no one was seriously hurt or if there is no alcohol or drugs involved. A person found guilty of dangerous driving can also not apply for a work licence or special hardship licence. Careless driving on the other hand is a less serious charge, it is not a criminal offence it is a traffic offence and carries with it no mandatory disqualification. The court can still choose to disqualify a persons licence for a careless driving charge but handled correctly the court typically would not record a disqualification. Other areas of negotiation might be that the police won’t be able to prove that it was our client that was driving the vehicle or that there was some other legitimate reason for driving as they did. So you can see that negotiations and case conferencing in regards to dangerous driving is critical and if carried out successfully can save a person from losing licence for at least six months.
If you need any advice on a traffic related charge and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.drivinglaw.com.au
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:
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.