Immediate Licence Suspensions
Immediate Licence Suspensions
A police officer has the power to issue an immediate notice of suspension when giving a person a penalty notice or a Court Attendance Notice for certain offences. This page outlines when an immediate suspension can be given, the requirements for its issue, and what you can do to get your licence back.
Which Offences Can Attract An Immediate Suspension?
Police can issue an immediate licence suspension for the following offences:
- exceeding the speed limit by more than 45 kilometres per hour for a provisional or full licence holder,
- exceeding the speed limit by 30 kilometres per hour for provisional licences or foreign licence holders,
- low, mid and high-range drink-driving for both first and second/subsequent offences ;
- drug-driving for both first and second/subsequent offences,
- an offence involving the death of, or grievous bodily harm to, another person caused by the use of a motor vehicle, being an offence that comprises—
What Does A Notice Of Suspension Mean?
A notice of suspension by a police officer for the above offences must be issued within 48 hours of being stopped by police and will remain in force for three to six months, depending on the offence. As the name ‘immediate suspension notice’ indicates, the suspension takes effect as soon as the driver is issued with the notice. Any notice of suspension issued by a NSW authority to a NSW licence holder suspends that individual’s driving privileges Australia-wide. However, where an individual holds a licence from a different Australian jurisdiction, a NSW-imposed suspension will suspend driving privileges within the NSW jurisdiction only.
Licence Suspension Appeals
The decision of a police officer to issue a suspension notice can be appealed to the Local Court. In deciding the appeal, the Court is required to exercise the powers held by the decision maker at the time, being whether or not to issue the immediate suspension. The Court can either:
- allow the appeal (this means that suspension is removed); or
- refuse the appeal (this means the suspension will stand and go ahead for the time set by the police); or
- make an order as seems just to the court.
Unlike with appeals against decisions by the RMS (TransportNSW) to suspend a licence, for an appeal against a police immediate suspension, the applicant is required to establish that exceptional circumstances exist to justify lifting or varying the suspension.
Further, the suspension of licence is not stayed/put on hold by filing the appeal and the immediate suspension is in force until the Court date.
As explained above, for appeals against an immediate suspension, you will be required to establish that exceptional circumstances apply to justify lifting or varying the suspension. For licence suspension appeals, due to the operation of Section 268(5)(b) of the Road Transport Act 2013, the Court is restricted from considering the circumstances of the offence in determining whether exceptional circumstances exist.
“Exceptional circumstances” is not defined under the Road Transport Act 2013, and the Court is allowed to consider the applicant’s need for a licence, the hardship caused to the applicant due to the suspension, the potential risks to the community if the order is made, and any other matter the Court considers relevant. In practice, establishing exceptional circumstances can be a difficult task as the Courts imposes a high bar with the interpretation of “exceptional circumstances”. It is important to note that case law directs that loss of employment as a result of a loss of licence should not be, in isolation, regarded as an exceptional circumstance.
If you are charged with a criminal offence and had your licence suspended under an immediate suspension, you have the ability to apply to the Court to have the immediate suspension stayed pending the outcome of the Court matter.
Again, the applicant is required to establish that exceptional circumstance exist and in considering whether the immediate suspension should be stayed, the Court must apply the following under Section 135 of the Road Transport (General) Regulation 2013: Road Transport (General) Regulation 2013.
- the strength of the prosecution evidence;
- the affected person’s need for a licence;
- the potential danger to the community if an order is made;
- any other matter that the Local Court considers to be relevant.
Time Limit For Lodging An Appeal
An appeal must be lodged within 28 days from the date of issue of the suspension. If an application is not lodged in time, the court cannot hear the appeal and the suspension must be served.
If you have a traffic matter or are concerned about receiving a notice of suspension of your licence, please contact Armstrong Legal.