Posted on January 18th, 2017.
It is considered a serious offence to drive a motor vehicle whilst your licence is suspended or disqualified. The maximum penalty for a first offence of driving whilst disqualified is imprisonment for six (6) months. The maximum penalty for a subsequent of driving whilst disqualified is imprisonment for two (2) years.
>> Section 91(5) of the Motor Vehicles Act, 1959 states:
“A person must not drive a motor vehicle on a road while his or her licence or learner’s permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner’s permit.”
Courts look particularly serious upon offending that has involved defying an order of disqualification. The Supreme Court of South Australia has explained:
“The offence of driving while under disqualification is a most serious offence, as is indicated by the maximum penalty of six months’ imprisonment prescribed by the section. Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver’s licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective. The ordinary punishment for driving under disqualification must be imprisonment.”
Courts have several options available when imposing a sentence for driving whilst disqualified. As an alternative to imposing an actual term of imprisonment, the court may order a period of home detention, a suspended term of imprisonment, a bond to be of good behaviour or a fine. The court also has the discretion to impose a further licence disqualification.
It is advisable to seek legal advice of charged with driving whilst disqualified. There are defences available to a charge of driving whilst disqualified. Alternatively, if pleading guilty, it is important to seek legal advice to ensure that your bests interests are advanced during the sentencing process.
The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.
Posted on May 18th, 2014.
Fabbian Lawyers provides specialist representation to individuals charged with drink driving offences. We understand that the loss of a licence can have significant consequences upon employment, family and personal commitments. When providing representation, we assess whether a loss of licence can be avoided. If a loss of licence cannot be avoided, we aim to ensure that any penalty and licence disqualification period is minimised.
There are various drink driving offences including - driving under the influence (DUI) and driving with the prescribed concentration of alcohol (PCA). The penalties for drink driving are contained within the Road Traffic Act 1961 (SA).
Driving with the Prescribed Concentration of Alcohol (PCA) - Section 47B of the Road Traffic Act
| | Fine | Licence Disqualification | Demerit Points |
First Offence | Category 1 0.05 - 0.079 | $1,100 Expiation: $548 | Not less than 3 months Exp: No disqualification | 4 |
| Category 2
0.08 - 0.149 | $900 - $1,300 | Not less than 6 months | 5 |
| Category 3 0.15 or more | $1,100 - $1,600 | Not less than 12 months | 6 |
Second Offence | Category 1 0.05 - 0.079 | $1,100 | Not less than 6 months | 4 |
| Category 2 0.08 - 0.149 | $1,100 - $1,600 | Not less than 12 months | 5 |
| Category 3 0.15 or more | $1,600 - $2,400 | Not less than 3 years | 6 |
Third Offence | Category 1 0.05 - 0.079 | $1,100 | Not less than 9 months | 4 |
| Category 2 0.08 - 0.149 | $1,500 - $2,200 | Not less than 2 years | 5 |
| Category 3 0.15 or more | $1,900 - $2,900 | Not less than 3 years | 6 |
Driving under the Influence of Alcohol (DUI) - Section 47 of the Road Traffic Act
| Fine / Imprisonment | Licence Disqualification | Demerit Points |
First Offence | $1,100 - $1,600; OR Imprisonment not more than 3 months | Not less than 12 months | 6 |
Subsequent Offence | $1,900 - $2,900; OR Imprisonment not more than 6 months | Not less than 3 years | 6 |
It is important to understand that the Courts can, and often do, impose penalties above the minimum amounts listed above. Additionally, individuals may be ordered to pay court costs, prosecution costs, victims of crime levies and impounding fees.
The above penalties can be subject to change and therefore it is recommended that legal advice is sought to ensure you fully understand the penalties that may be applicable.
Further general information regarding drink driving penalties can be obtained by visiting the DPTI SA Government Website.
The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.
Posted on June 30th, 2013.
The answer is: YES
In South Australia, police can
issue a notice of licence suspension (or disqualification) to a person believed
to have committed a certain type of drink driving offence. Commonly, a notice
will be given by a police officer at the completion of a breath analysis where the
result is a positive reading of 0.08% or more. However, despite receiving a
notice, in the ordinary course an alleged drink driving offence will need to be
finalised in a Magistrates Court.
>> A “Notice of Licence Disqualification or Suspension”
Where a notice is given, an
initial suspension (or disqualification) will be imposed for a period as
follows:
·
Blood alcohol concentration of 0.08% to 0.149% (PCA
category 2 offence – Section 47B(1)) – 6 months
·
Blood alcohol concentration of 0.15% or more (PCA
category 3 offence – Section 47B(1)) – 12 months
·
Refuse / fail to comply with directions in
relation to alcotest or breath analysis (Section 47E(3)) – 12 months
·
Refuse / fail to comply with request for blood
sample (Section 47I(14)) – 12 months
The law states that a suspension
(or disqualification) imposed by a notice can come to an end in several ways.
In specific circumstances, you
can apply to a Magistrates Court to seek an order that you not be suspended (or
disqualified) by the notice. Alternatively, you can seek that the period of the
suspension (or disqualification) be reduced.
>> Magistrates Court Form - Application for Review of Licence Disqualification or Suspension
Unless arrested, you will normally
be reported and later served with a summons to appear in a Magistrates Court. The
time taken to receive a summons can vary significantly.
Drink driving offences can be
disputed on several grounds. If you dispute the offence it may be possible resolve
the matter by negotiating with the police prosecutor. If there is a valid reason,
the prosecutor may agree to withdraw the charge. Alternatively, the matter may
proceed to a contested trial. At a contested trial, a Magistrate will need to
determine whether you are guilty or not guilty of the offence.
Most commonly a drink driving
case will resolve in Court by the person pleading guilty to the charged offence.
A Magistrate will decide the appropriate penalty. Along with many factors, the
Magistrate is to take into account the amount of time served under notice of
suspension (or disqualification). It is important to understand that the Court
can (and is often obliged to) impose a licence disqualification for longer
than the period required by the initial notice of suspension (or
disqualification). Before pleading guilty, it is important that you fully
understand the possible penalties that can be imposed by the Court.
Whether you are pleading guilty
or not guilty to a drink driving offence, legal representation can assist to
ensure your best interests are advanced before the Court.
>> Section 47IAA Road Traffic Act - Power of police to impose immediate licence disqualification or suspension
>> Section 47IAB Road Traffic Act - Application to Court to have disqualification or suspension lifted
The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.
Posted on June 26th, 2013.
As from 24 June 2013, those who
receive expiation notices for alleged speed or red light traffic camera offences
will be able to view the related photographs online. The South Australian
Police initiative will allow prompt and free access to colour digital
photographs that can be printed.
Fabbian Lawyers recommends that
all individuals who receive expiation notices for alleged speed or red light
traffic camera offences check the related photographs before determining whether
to expiate or challenge the offence. It is important to assess
whether you (or another driver) have actually committed an offence. In addition
to the significant financial penalties, the expiation of red light and speeding
offences both attract demerit points which can lead to licence
disqualifications.
Photographs can be viewed on the SA Police website: https://expiationphoto.police.sa.gov.au
For further information see the SA Police website article: ‘Copped a fine? Speed and red light camera photos now online’
The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.
Posted on November 17th, 2012.
The Supreme Court recently held that legislation requiring the forfeiture of motor vehicles is invalid. His Honour, Chief Justice Kourakis upheld the argument that:
…s 12(1)(a)(iii) of the Forfeiture Act (the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007) is invalid because it requires the courts of this State to exercise powers, on the application of prosecution, which are incompatible with, and repugnant to, the exercise of judicial power under the Constitution.
It is understood that an appeal against the decision has now been lodged on behalf of Police. Currently some cases involving an application for forfeiture are being adjourned pending the outcome of the appeal to the Full Court of the Supreme Court.
Interestingly, prior to the judgment, it was reported in the SAPOL Annual Report for 2011-2012 that:
Police continued using powers under the Criminal Law(Clamping, Impounding and Forfeiture of Vehicles) Act 2007 to penalise hoon drivers. The Act allows police to seek the forfeiture of vehicles where the owner has been convicted of a forfeiture offence or other prescribed offences. Vehicles can be sold at auction, publicly crushed and disposed as scrap metal. For the reporting period, 7932 vehicles have been clamped or impounded, 26 vehicles sold by auction, 178 destroyed, and 6 vehicles publicly crushed.
>> BELL v POLICE [2012] SASC 188 (17 October 2012)
>> SAPOL Annual Report 2011-12
Addendum Note: It should be noted that since writing the above article, the South Australian Supreme Court (Full Court) overturned the decision of Chief Justice Kourakis. The Full Court decision can be viewed below:
>> ATTORNEY-GENERAL FOR SA & ANOR v BELL [2013] SASCFC 88 (2 September 2013)
The information contained within this article is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Craig Fabbian and Fabbian Lawyers are not responsible for any actions taken or not taken on the basis of this information.
