Drive Whilst Suspended


It is an offence under the Road Transport (Driver Licensing) Act to drive whilst suspended. Under this Act, there are two sections under which offending behaviour can potentially be charged.

Under section 31A, it is an offence to drive a vehicle in the ACT whilst your right to drive is suspended under an ACT law.

Under section 32(2) it is an offence to drive a motor vehicle on a road or road related area when your Australian driver licence has been suspended by a court or law of the ACT or any other jurisdiction, unless under a restricted licence. It is also an offence under this section if a person applies for a licence within their period of suspension and fails to mention the suspension in that application.

What Will I Be Charged With?

Section 31A is defined more broadly and would encompass most offending behaviour under section 32(2). The definition of section 31A operates to cover offending behaviour by those people who are not driving under an Australian driver licence. The most obvious example of this is if you are driving in the ACT on an external licence, and have had your right to drive revoked by the ACT Road Transport Authority (RTA).

Penalties

If you have been convicted of an offence under section 32(2):-

Generally, the starting point for a magistrate at sentencing is to record a conviction, impose a fine and a disqualification period. For a first offender, the maximum fine is 50 penalty units, and for a repeat offender the maximum is 100 penalty units. It is also open to the Magistrate to impose a period of imprisonment, up to 6 months for a first offender or one year for a repeat offender.

If you are convicted of an offence under section 32(2), the automatic period of disqualification set by the law is dependent on the reason for your suspension. These are set out in the table below:-

Reason for suspension Automatic disqualification period
Non-payment of Fines 1 month
Demerit Points 3 months
Other (First Offender) 3 months
Other (Repeat Offender within 5 years) 12 months

The automatic period of disqualification is the minimum period of disqualification that the court can impose if it convicts you of the offence, however, the court may extend that period of disqualification. It is important to note that the court ordered disqualification period will commence after the existing period of suspension has expired.

If you have been convicted of an offence under section 31A:-

Generally, the starting point for a magistrate at sentencing is to record a conviction and impose a fine. The maximum penalty for an offence under this section is 20 penalty units.

Regardless of how bad your traffic record is the court has discretion whether to record a conviction against you for the offence. If the court decides not to record a conviction, you will not be disqualified from driving. Section 17 of the Crimes (Sentencing) Act allows a court that finds a person guilty of an offence the discretion not to impose a conviction against them.

Possible Defences

The most common defence to this offence is the defence of honest and reasonable mistake of fact. You must give evidence that you were unaware at the time of driving that you were suspended because you were not notified by the RTA. In order to successfully raise the defence you must prove that your belief that you were not suspended was both honest and reasonably held.

Whilst it is normally easy to prove that you were not notified by the RTA that your licence was suspended, it is more difficult to show that your belief is a reasonable one. Knowing that you had (or that it was possible that you had) exceeded your demerit points or that you had outstanding fines may show that your belief was not reasonable.

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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