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 –
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 –
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.
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.
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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;
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:
Bluedog Business Centre - Level 1, 16 McDougall Street, Milton 4064
Corporate Centre One - Level 15, 2 Corporate Court, Bundall 4217
Suite 4, 66 Duporth Avenue, Maroochydore 4558
Phone: 1300 952 255
Ipswich Corporate Office - 16 East Street, Ipswich 4305
M1 Business Centre - Level 2, 3972 Pacific Highway, Loganholme 4129
North Brisbane Serviced Offices - 3/22-24 Strathwyn Street, Brendale 4500
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.
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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.