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.

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