Australia: How to avoid a drivers licence suspension in NSW

The obvious answer to the question of how to avoid a drivers licence suspension is to obey traffic laws. However, if you find yourself in the unfortunate position of having committed a traffic offence and facing suspension of your licence, there are a few options to consider that may result in you avoiding the suspension.

We recommend that as soon as you receive a penalty notice or a letter of suspension, you seek legal advice about your options.

Dealing with a penalty notice

When you commit a traffic offence, you will likely receive a penalty notice in the mail which will tell you what the offence is, the demerit points incurred and the fine for the offence. You can elect to take the matter to court.

If you wish to have the matter heard in court, you should not pay the fine and should make the election before the payment date. But, if you pay the fine in full or partially, you can still elect to take the matter to court, as long as it is done within 90 days from when the penalty notice was issued.

If you sought a review of the penalty notice, you can still elect to have the matter heard at court within 28 days from receiving notification of the outcome of the review.

Best-case scenario – the charge is dismissed

Dealing with the penalty notice may result in you receiving a dismissal of the charge. Up until 24 September 2018, this was referred to as a "Section 10". (For more information please see our earlier articles The elusive and sought after "section 10" in criminal and traffic prosecutions in NSW and When does negligent driving become a criminal offence? Which case won?)

If you get the charge dismissed, it means that you accept responsibility for the offence and admit your guilt, but due to subjective factors, such as your good record, you are granted leniency. Having the charge dismissed means you will not accumulate the demerit points for the offence and therefore your licence will not be suspended.

What happens if you don't succeed in having the charge dismissed?

However, there are some risks with this approach if you are not successful. Here are things to keep in mind about electing to take a penalty notice to court.

  • The court may give you a higher fine
  • You may have to pay a court costs levy and a victims support levy
  • You may have to pay the legal costs of the prosecutor
  • You may be convicted of an offence and that conviction may be recorded on your criminal record

Excessive demerit points and opting for a good behaviour period

Unrestricted NSW drivers who have received a notice of suspension due to excessive demerit points may opt for a 12 month good behaviour period.

You must apply to elect a good behaviour period before your suspension is due to start and your election cannot be withdrawn.

This operates as a "double or nothing" bet, so if you obtain two or more demerit points during the 12 month good behaviour period, you will be in breach and will have to serve double the original suspension.

This is another situation where electing to take the penalty notice to court may save you from having your licence suspended. However, in this case it is much harder to succeed in having the offence dismissed, given that you clearly have a bad driving record.

Some but not all decisions can be appealed

If you receive a licence suspension letter you may have the option to appeal the suspension. However, only certain decisions can be appealed and it is important to note that there is a distinction between police-imposed and RMS-imposed suspensions.

These are the decisions that can be appealed.

  • A decision by the RMS to suspend a licence for exceeding the speed limit by more than 30 or 45 kilometres an hour
  • A decision by the RMS to suspend a provisional driver's licence for loss of demerit points
  • An on-the-spot decision by the police to suspend a licence for exceeding the speed limit by more than 45 kilometres per hour

These are the decisions that cannot be appealed.

  • A decision by the RMS to suspend an unrestricted drivers licence for loss of demerit points
  • A decision by the RMS to suspend your interlock drivers licence
  • Breach of a good behaviour period

RMS-imposed suspensions – what happens if you appeal?

Once the appeal is lodged, your suspension is stayed (postponed), meaning that you are able to continue to drive until your appeal is finalised in court.

In deciding what to do upon appeal, the court can choose one of the following options.

  • Uphold your appeal – which means you keep your licence
  • Dismiss your appeal – which means you will complete the suspension as imposed
  • Dismiss your appeal and reduce the suspension – which means the court will impose a different (shorter) period of suspension

How to lodge an appeal against an RMS-imposed suspension

You must lodge the appeal within 28 days after receiving the letter from the RMS. It is important to act quickly and not to leave it too late, because failure to lodge the appeal in time will mean the court cannot hear your appeal and you will have to serve the full suspension period.

You can lodge an appeal by one of the following means.

  • Attending any Local Court
  • Following the directions on the letter from the RMS
  • Online at Service NSW

How to prepare for an appeal against an RMS-imposed suspension

The appeal of the suspension is not an issue about whether you committed the offence or not. Rather, it is about subjective factors, such as those listed below.

  • How and why you committed the offence
  • Your reasons for needing for a licence, including work commitments, medical reasons, care of others etc
  • Your traffic record
  • Whether you are of prior good character

Police-imposed on-the-spot suspensions

A police officer can issue you with an on-the-spot suspension (for six months) in the following circumstances.

  • You hold an unrestricted licence and have exceeded the speed limit by more than 45 kilometres per hour
  • You are a provisional driver and have exceeded the speed limit by 30 kilometres per hour

Appealing a police-imposed suspension of your drivers licence

You can lodge an appeal against the police-imposed suspension notice at any Local Court.

It is a different standard when appealing a police-imposed suspension. You need to show exceptional circumstances in order to justify lifting or varying the suspension. When determining whether exceptional circumstances exist, the court will consider the following facts.

  • The strength of the prosecution evidence
  • Your need for a licence
  • The potential danger to the community if an order is made
  • Any other matter the Local Court considers to be relevant

You only have 28 days from the date of issue of the suspension notice to lodge your appeal.

Is it possible to get a "work licence"?

On a final note, we commonly get asked whether the court can impose a "work licence" to allow you to drive to and from work. A work licence is a myth. They do not exist anymore.

It is always best to seek legal advice. Our policy is to provide a free 30-minute consultation so you can be advised as to your options and then make an informed decision about how you wish to proceed.

Caitlin Drabble
Criminal law
Stacks Heard McEwan

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Carroll & O'Dea
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Carroll & O'Dea
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions