Quashing a Habitual Traffic Offender Declaration
In NSW up until October 2017, when a driver received a criminal conviction for a serious driving offence, and in the 5 years prior to the offence had been convicted of 2 or more serious driving offences, they would be declared a ‘Habitual Traffic Offender’. The effect of a Habitual Traffic Offender Declaration (HTOD) was that Transport for NSW would impose a further five-year licence disqualification, on top of any period of disqualification imposed by the court.
The HTOD program was abolished in October 2017 after findings that long disqualification periods did not act as a deterrent to committing further offences, particularly offences of unauthorised driving. Furthermore, the scheme was particularly onerous and often trapped people into a cycle of reoffending behaviour. From October 2017 HTOD were no longer imposed, however, the change in legislation did not remove existing declarations, which will still appear on a driver’s record unless removed or quashed by a court.
Presently, there are two different types of applications that can be made to the Local Court to try to quash or remove disqualification periods. These are:
- Driver licence disqualification removal applications; and
- Applications to quash Habitual Traffic Offender Declarations.
This page deals with applications to quash Habitual Traffic Offender Declarations.
What Offences Are Relevant Offences?
Prior to October 2017, a Habitual Traffic Offender Declaration was made following conviction of any three “relevant offences” within a five-year period. For the purposes of an HTOD “relevant offences” are any of the following:
- Murder or manslaughter which involved the use of a motor vehicle;
- Any offence under the Crimes Act 1900where death or bodily harm is caused to a person through the use of a motor vehicle;
- Predatory driving;
- Police pursuit;
- Failing to stop and assist after vehicle impact causing death or grievous bodily harm;
- Drink driving;
- Driving with a prescribed illicit substance in your system;
- Driving under the influence of alcohol or any other drug;
- Negligent driving causing death or grievous bodily harm;
- Dangerous driving;
- Menacing driving;
- Refusing or failing to provide blood sample or submit to breath analysis;
- Wilfully altering blood/breath/urine/oral sample;
- Aiding, abetting, counselling or procuring the commission of any of the above offences;
- Driving more than 30km/h over the speed limit;
- Driving more than 45km/h over the speed limit;
- Driving suspended/disqualified/cancelled; and
- Making an application for a licence whilst suspended/disqualified/cancelled.
Making An Application
Despite the relevant sections of the legislation regarding HTOD’s having been abolished, the Local Court retains the discretion to quash HTOD with the same powers that were in place before October 2017.
An application to quash a Habitual Traffic Offender Declaration can be made in person at any NSW Local Court Registry, or through a legal representative. Before an application can be filed, you will need to complete the appropriate form and attach either a NSW Traffic Record or the letter issued by the RMS (now Transport for NSW) declaring you a habitual offender.
Once an application is filed the matter will be listed before a magistrate. The magistrate will determine the application having regard to the application, reasons for needing a licence, any subjective material tendered at court (including character references, a letter from the applicant, medical documents or employment documents) and any oral submissions made.
A magistrate can quash the habitual traffic offender declarations if they determine that “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case”. Submissions can be made to the magistrate by the legal representative appearing for the person making the application, or the person making the application themselves.
If you have existing disqualification periods you should seek legal advice as to whether or not you are eligible to apply to the court to quash your Habitual Traffic Offender Declaration or have the existing disqualification periods removed, as well as how best to prepare your matter.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.