Driving Whilst Suspended or Disqualified Lawyer Melbourne
Driving whilst suspended is a serious offence that carries a maximum fine of up to 240 penalty units or up to 2 years imprisonment.
Driving Whilst Suspended or Disqualified
Driving whilst suspended or disqualified involves the driving of a motor vehicle on a highway while your driver licence is either suspended or disqualified.
The prosecution must prove the following matters in order to succeed:
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They have correctly identified the driver;
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That you were the driver on a highway;
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At the time of driving your driver licence was either suspended or disqualified.
At common law driving is defined as having control over the propulsion and movement of a car. This means for example steering a car that is being towed is not driving because you have no control over the propulsion. This has since been modified to include certain circumstances such as the one described through section 3AB of the Road Safety Act 1986 (Vic).
A Highway is defined as a road or road related area.
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Possible Defences for Driving Whilst Suspended or Disqualified
Honest and Reasonable Mistake
This offence is known as a strict liability offence. That means the prosecution does not need to prove that you had knowledge of your suspension. If however you were under the mistaken belief that your licence was not suspended or disqualified you may have a defence so long as that mistake was:
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An honestly held belief (a genuine mistake);
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A reasonable mistake for you to make in the circumstances; and
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The mistake was about the facts and not about the law.
An example of this defence may be where you did not receive a penalty notice in the mail and subsequent communication from Vic Roads that your licence was suspended. In those circumstances you may have a genuine belief that you remained licensed. If however you failed to notify VicRoads of your new address which led to the mail not being received the court may consider that it was not reasonable for you to hold the belief in the circumstances.
Be aware, the court may suspend your licence even if you are found not guilty because you had an honest and reasonable belief. See below under ‘Frequently asked questions’ for detail.
Sudden and Extraordinary Emergency
In certain circumstances section 322R of the Crimes Act 1958 (Vic) may provide a defence if you drove in circumstances of a sudden or extraordinary emergency. In order to raise this defence you would need to have a reasonably held belief that:
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A sudden or extraordinary emergency exists; and
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Your decision to drive is the only reasonable way to deal with the emergency; and
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The driving was a reasonable response to the emergency
An example of this may be a medical emergency in which you drive someone to hospital. The court may accept that there was a genuine emergency and that driving was a reasonable response but depending on the circumstances the court may find that calling an ambulance was another reasonable way to deal with the emergency causing the defence to fail. The specific facts of each case need to be weighed up in assessing whether the defence will succeed.
How it Works
Step 1
Get in touch using the contact form on this page to book your initial consultation.
Step 2
During your initial consultation, we will discuss your matter and provide answers to your questions
Step 3
Based on the circumstances of your case, I will provide a roadmap for working together.
Frequently Asked Questions
Can the police impound the vehicle if caught driving whilst suspended?
If in the period of 6 years preceding the offence you have also been found guilty of the same offence or another offence which is also classified as a ‘relevant offence’ for the purpose of the legislation (for example dangerous driving or drink driving over .10) then the court may impound or immobilise your car. This may be 45 days or up to 3 months and you would be required to pay for the storage and towing of the car.
If you have been found guilty of the same offence or another ‘relevant offence’ twice or more in the 6 years preceding the current offence then the court may forfeit the vehicle or a substitute vehicle to the crown.
The legislation does allow for arguments in relation to exceptional hardship and will consider those arguments before deciding whether to impound or forfeit your car.
Will the court suspend my licence for a longer period?
The court may impose a further period of suspension upon finding you guilty. This is a matter of discretion for the Magistrate who will consider a number of factors such as your driving history, your reasons for driving on this occasion, whether there are aggravating features to your driving and your need for a licence. Careful submissions are required to minimise the prospects of a further licence suspension.
Can the court suspend my licence if I am found not guilty of driving while suspended / disqualified?
Even if you successfully defend the charge of driving while suspended or disqualified the court may, subject to section 30A of the Road Safety Act 1986, decide to suspend you further. For example if you claim that you were not aware that your licence was suspended and the court accepts that this was an honest and reasonable belief, the court may find you not guilty but suspend your licence for a period that represents a period of time between when your licence was first suspended or disqualified and the time you became aware it was suspended or disqualified.
Driving whilst suspended vs. disqualified – what’s the difference?
If your licence is suspended then you are unable to drive for a specified period. This typically involves circumstances where police issue you with a penalty notice for offences such as speeding at 25kph or more than the speed limit. Your licence is suspended for the period specified and at the end of that period your licence is returned. It may also involve a period due to incurring excessive demerit points.
Your driver licence is typically disqualified by the courts for offences such as drink driving or drug driving. Once your licence is disqualified it is also cancelled and you must take steps to regain your licence at the end of that period. For example for drink driving matters you would need to satisfy Vic Roads that your licence can be restored or for drug driving you would need to return to the court to apply to have your licence restored. Certain steps for example alcohol interlocks or change behaviour change programs may be required before your licence can be returned depending on the offence.
Can I avoid a conviction for driving whilst suspended or disqualified?
Courts have the discretion to impose a conviction. The court will consider the circumstances of the offending, your prior history and character and how a conviction may impact on your social wellbeing and employment prospects before deciding to impose a conviction.
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Get in touch today
To provide the most efficient and cost-effective traffic law service, consultations are done through Zoom or Microsoft teams. Meetings may be arranged on site at Owen Dixon East Chambers Melbourne for an additional fee.
Owen Dixon East Chambers Melbourne VIC 3000
0413 94 1990
Mon - Fri: 9:00 am – 5:00 pm
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