Clarity Law

Specialist Traffic Law Firm Queensland

Displaying items by tag: disqualification

Sunday, 27 February 2022 02:06

How Long will a Court Disqualify my Licence for?

There are a range of driving related offences in Queensland, with various disqualification periods for each of them.

 

Driving Offences and Disqualification Periods

The Queensland Parliament has legislated so that certain driving offences carry mandatory minimum disqualifications. This means when a court is deciding how long to disqualify your licence for, it cannot go lower than the minimum, regardless of what a lawyer says or what the Court may want to do. The primary (but not only) legislation that creates driving offences is the Transport Operations (Road Use Management) Act 1995.

Below, then, is a list of the most common mandatory disqualification periods:

Take note that minimum disqualifications will be higher, in most cases, if you have prior offences for drink driving or drug driving within 5 years of the offence.

Some of the disqualifications above can also “cumulate” which means they stack on top of each other. This usually occurs when there are multiple offences. To give some examples:

  • Multiple drink driving and/or drug driving offences committed at different times, but sentence imposed at the same time – cumulative.
  • Unlicenced driving type offence and drink driving/drug driving offence committed at the same time – cumulative

 

Can I be Disqualified for more than the Minimum?

In most cases, yes. The minimum is the starting point, and the Court has the discretion to impose a higher disqualification.

 

Is There No Way to Avoid a Disqualification?

In limited situations you can make an application to the Court for a restricted licence, also known as a work licence. If you have not been disqualified or suspended within 5 years prior to the offence, the offence is low or middle limit drink driving, or driving while a drug is present in your saliva, and you would have a valid open licence if not for the disqualification, then you are eligible.

There are further tests before getting a work licence; you need to be deemed by the Court a fit and proper person, and you need to prove you would be deprived of your means of earning a living if the work licence was not granted. It is an involved process which requires the preparation of sworn affidavits and a detailed description of your personal and financial circumstances. We are experts in getting people work licences, and you may wish to help yourself to a free consultation with our firm if you want to explore your options.

Another way to avoid a possible disqualification is to write to the prosecution and ask them to downgrade or withdraw your charge, which is called a “submission”. This is also an involved process and often requires a persuasive argument backed by evidence you are working or made an honest mistake or have exceptional personal circumstances that would warrant some leniency. We have had some great successes with our submissions, for a few examples:

  • Downgrading of a charge which had a mandatory disqualification of two years down to one of just one month.
  • Downgrading of a charge from 6 months minimum to a charge which had no minimum.
  • Getting prosecutors to drop one of two charges, which halved the minimum disqualification from 12 months to 6 months.  

The final way to avoid a disqualification is to contest the charge, and win, in court. This is an option that cannot be easily generalised in a short article and is better explained with targeted legal advice.

 

Are There Defences Available?

There are, of course. However, there are specific lines of defence for each charge and each set of circumstances which is beyond the scope of this guide.

 

What Things Does the Court Consider When Deciding the Disqualification Period?

The Court will take into account a number of factors. If it is a drink driving offence, the Court will:

  • Take note of your blood alcohol content.
  • Consider if you have a history of committing similar offences and driving offences in general,
  • Consider the manner of your driving; i.e. did you come to the attention of the police because you were swerving all over the road, or was it a random breath test?
  • Look at whether you have completed an education course such as Queensland Traffic Offenders Program.

These above are some of the things the Court will consider.

 

Conclusion

As you will have seen, although there are minimum disqualification periods, the period will differ depending on the charges and the circumstances of each case. You are able to avoid total disqualification, or achieve a lower length of disqualification, but this will almost always require the expertise of a lawyer. Each lawyer at Clarity Law is a driving law expert. We have appeared in hundreds of driving matters each, and thousands of cases in total. If you want the best possible outcome for your case, help yourself to a free consultation.

Published in Legal Blog
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Tuesday, 31 August 2021 03:18

Essential Guide to Disqualified Driving

Introduction

The transport legislation sets out a scheme of disqualifications from driving for certain offences. In addition to this scheme, the courts have a general power to disqualify anyone convicted of any offence that involves the use of a motor vehicle.

The purpose of this brief guide is to explain what happens if you are caught driving while you are subject to one of these court-ordered periods of disqualification from driving.

 

What is “Disqualified Driving”?

Section 78 of the Transport Operations (Road Use Management) Act 1995 creates a number of offences for driving without having a valid driver’s licence. One of the most serious of these offences is driving whilst disqualified from holding or obtaining a driver’s licence by court order. This offence is commonly referred to as “disqualified driving”.

It is worth noting that the offence requires you to be driving a “motor vehicle.” This phrase has a precise, legal definition that is spelt out in the traffic legislation. Specifically, it is:

                … a vehicle propelled by a motor that forms part of the vehicle and –

  • includes a trailer attached to the vehicle; but
  • does not include a motorised scooter, a personal mobility device or a power-assisted bicycle.

These latter exclusions are also specifically defined in the legislation. What is significant is that this definition of “motor vehicle” is broader than typical, road-registered vehicles (such as cars, trucks, motorbikes, etc). This definition is capable of including other types of vehicles; for example, a bicycle with a petrol engine attached. This definition is especially important to be aware of now, as many of these irregular vehicles may be purchased online from overseas and imported into Queensland. Although they are not registered vehicles (and not capable of being registered in Queensland), they may still come under the definition.

Thus you may find yourself being charged with a disqualified driving offence, even though you may not have been driving a conventional, registered vehicle at the time. It is important to get correct legal advice if you are considering alternative transport options following disqualification from driving.

It is also worth noting that this section requires that the driving which constitutes the offence be done “on a road”. This causes some confusion, as many initially assume that the “road” being referred to can only be a public road. However, the traffic legislation also creates a precise, legal definition of road which includes:

                … an area that is –

  • open to or used by the public and is developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or
  • dedicated to public use as a road

In other words, a “road” is anywhere used to drive cars, either by design or by convention. For example, a shopping-centre carpark or a dirt track on private property. Put simply, almost anywhere that you can drive a car will probably satisfy the legal definition of a “road”.

You may, therefore, find yourself being charged with a disqualified driving offence, even though you were driving somewhere other than on a sealed, public road or street. Your weekend, off-roading adventure may not be as “off-road” as you think. If you come to the attention of the police, and you have been disqualified from driving by the court, you may find yourself being charged with a disqualified driving offence.

 

Penalties

There are two, principal reasons why disqualified driving is a serious offence.

Firstly, the maximum penalties for this offence include a fine in excess of $8,000 or 18 months’ imprisonment. It also includes further disqualification from driving of between 2 and 5 years, at the discretion of the court. This further period of disqualification from driving does not commence until after you have completed any existing periods of disqualification (or from the date you are convicted if these prior disqualifications are already expired).

Secondly, this offence involves the additional, aggravating circumstance of deliberately disobeying the court’s previous order of disqualification from driving. The court expects compliance with its orders. One of the ways it protects its powers to compel compliance is to impose severe punishments on those who disregard its orders. Thus, you can expect to receive a reasonably harsh penalty, even for a first offence and even for a relatively minor case (for example, driving your car from off the roadside outside your home into your garage, etc).

Repeated convictions from disqualified driving (especially when the offences occur within a relatively short period of time) will invariably result in a sentence of imprisonment. In our experience, this may occur in as little as the third or fourth conviction.

 

Are there any Defences?

From the outset, is important to emphasise that being unaware that you had been disqualified from driving is categorically not a defence. This is characterised as a mistake of law and ignorance (or confusion) about the law is almost never a defence.

One possible defence is to be driving for a “sudden or extraordinary emergency.” This defence only arises in the rarest of cases and is a complicated defence to pursue.

To successfully raise this defence, you must find yourself in a situation where the only way to avoid a “sudden or extraordinary emergency” is to drive. The test is an objective one and your decision to drive is measured against what an “ordinary person possessing ordinary power of self-control” would do in the circumstances. In other words, the court will consider how an ordinary person, possessed with ordinary power of self-control would reasonably be expected to act in the sudden emergency then being confronted.

This test usually involves considering all other options available at the time the emergency arose (such as calling emergency services; getting a taxi, or Uber; telephoning home doctor; calling on a family member, friend, or neighbour to drive, etc) and eliminating them as appropriate courses of action, given the surrounding circumstances.

The act of driving must also be proportionate to the level of emergency presented. Given the nature of a disqualified driving charge, the emergency will probably involve a life-threatening situation. Anything short of this is unlikely to justify the decision to drive.

Suffice it to say that this is a difficult (but not impossible) defence to rely on to justify driving whilst disqualified from doing so.

Should you find yourself charged with a disqualified driving offence, it is important to get expert legal advice.

 

What do you charge?

We have fixed fees for everything.  Please click here for our prices.

If I contacted you what would occur?

If you contact us then Steven Brough the firm’s founder or our office manager Belinda Smyth will take the call or receive the email. They have 40 years legal experience between them, we can provide immediate legal assistance and answer any questions you have. We will discuss your case, provide guidance and send a quote by email with additional relevant information about your charge, all at no cost.

If you want to engage us then it’s easy, there is a form you can complete and email back or complete online. If you don’t want to engage us or want to engage another firm that’s fine, you won’t be hassled and at worst you will just have more information about your evasion charge. Once engaged one of our lawyers will go through your matter and contact you to discuss what the best way forward is to achieve the best results. Every one of our lawyers are very experienced with thousands of courts appearances between them.

 

How do I get more help or engage you to act for me? 

We have been operating since 2010 undertaking Disqualified Driving Charges throughout South East Queensland.

If you want to engage us or just need further information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. email This email address is being protected from spambots. You need JavaScript enabled to view it.
  4. Visit our main website page

We cover all courts in South East Queensland from the Gold Coast to Brisbane and the Sunshine Coast and out to Toowoomba.  We have 6 offices in South East Queensland to assist people. The offices are located at:

Brisbane

Bluedog Business Centre - Level 1, 16 McDougall Street, Milton 4064

Phone: 0730677017 

Southport

Corporate Centre One - Level 15, 2 Corporate Court, Bundall 4217

Phone: 0756132683

Sunshine Coast

Suite 4, 66 Duporth Avenue, Maroochydore 4558

Phone: 1300 952 255

Ipswich

Ipswich Corporate Office - 16 East Street, Ipswich 4305

Phone: 0734850147

Loganholme

M1 Business Centre - Level 2, 3972 Pacific Highway, Loganholme 4129

Phone: 0736680683 

Brendale

North Brisbane Serviced Offices - 3/22-24 Strathwyn Street, Brendale 4500

Phone: 0734850184

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about your disqualified driving charge. You won’t be chased or hounded to engage us.  If you do engage us then most of the time you won’t need to even come into our office. Remember its critical you get advice before going to court, a disqualified driving charge charge will have an impact on you, your family and your employment or business.  

 

Need more information?

We have a range of articles on our blog.  Some of the most recent have included:

Published in Legal Blog
Monday, 25 July 2016 04:47

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