Traffic Offences

Division 1 effectively replicates section 51 of the Road Safety Act,  it provides for immediate suspension of a drivers licence or learner permit where a driver is charged with drink-driving and drug-driving related offences. The suspension must be by way of written notice provided to the driver, it may be given at the time of the person is charged with a relevant offence or after the fact. A relevant offence is defines as:

• an offence under section 49(1)(b), (bc), (f), (g), or (j) where the alleged concentration of alcohol in the blood or breath of the person charged was—
• if the person held a full driver licence, 0·10 grams or more per 100 millilitres of blood or 210 litres of exhaled air;
• if the person held a learner permit or a probationary driver licence, 0·07 grams or more per 100 millilitres of blood or 210 litres of exhaled air; or
• an offence under section 49(1)(c), (d) or (e); or
• an offence under section 49(1)(ba), (ca), (ea) or (eb); or
• an offence that would be deemed to be subsequent offence under section 48(2) of the Road Safety Act 1986 if the person charged were convicted.

There are two section that apply the above rules in relation to drink driving, they are Section 85 that enlivens the power at the time of charge and s85B that enlivens the same power but at the time that the driver is issued with the relevant Blood Alcohol Content certificate. In relation to drug driving the power is enlivened only at the time of charge per section 85A

The laws have now been be expanded to enable immediate licence suspensions for drivers who are charged with excessive speeding offences. Section 85F of the RSA empowers Victoria Police members to suspend the driver’s licence or learner’s permit of a person charged with a relevant speeding charge. Section 85F defines a relevant charge here as:

• dangerous driving by driving a motor vehicle at a speed of 45 km per hour or more over the speed limit or at a speed of 145 km per hour or more if the speed limit is 110 km per hour under section 64 of the RSA;
• driving a heavy vehicle contrary to section 65B of the RSA, prohibition on drivers of heavy vehicles exceeding speed limit by 35km/h or more, or driving a vehicle contrary to rule 20 of the Road Rules by driving a motor vehicle at a speed of 45 km per hour or more over the speed limit or at a spend of 145 km per hour or more if the speed limit is 110 km per hour.

Section 85G empowers Victoria Police members to suspend the driver licence or learner permit of a person issued with a relevant speeding infringement notice.

• Section 85G defines a relevant infringement notice here as an offence against section 65B of the Road Safety Act 1986 or rule 20 of the Road Rules where the motor vehicle was driven at a speed of—
• 45 km per hour or more over the speed limit; or
• 145 km per hour or more over the speed limit in a 110km per hour zone.

Immediate licence suspension will apply in circumstances where excessive speeding is detected by Victoria Police utilising mobile camera detection devices which result in an on the spot notification of charge or infringement being issued by Victoria Police.

Immediate suspension does not apply where the speeding is detected by the fixed camera network due to the lack of personal interaction between driver and police or in circumstances where police are merely estimating the speed as opposed to using an approved speed measuring device.

Police must provide a written notice of the immediate licence suspension to the driver when the driver is charged or given an infringement notice.

• This can be a little bit tricky but the general rules are as follows, for more specific advice, you should call our office.
• The period of the immediate suspension will depend on the offence committed. Where a driver is detected at more than 35km per hour but less than 45km per hour over the speed limit in a 110km per hour zone the suspension period is 6 months.
• Where the person has been found driving at 45km per hour above the speed limit in any other zone they must immediately surrender their driving licence or permit and will be suspended from driving for 12 months (see Schedule 5 of the RSA).

Under Division 3 Victorian Police officers have the additional powers to immediately suspend a person’s licence or permit when that person uses a motor vehicle to commit a serious motor vehicle offence, the definition of a serious motor vehicle offence, section 87P of the Sentencing Act 1991, has been amended. A serious motor vehicle offence includes the following offences where a motor vehicle is involved:

• murder
• attempted murder
• manslaughter
• culpable driving
• kidnapping
• causing serious injury intentionally in the circumstances of gross violence
• causing serious injury recklessly in the circumstances of gross violence
• Causing serious injury intentionally
• Causing serious injury recklessly or negligently
• Causing injury intentionally or recklessly
• Conduct endangering life
• Conduct endangering persons
• Carjacking
• Aggravated carjacking

Section 85I enables the police to suspend a person’s licence if they are charged with one of these relevant offences. The powers apply here as they do to driving under the influence and excessive speed offences but with an additional safeguard to protect the rights of the driver and consider community safety, that safeguard is that only senior police officers are permitted to determine if immediate suspension will occur given the high degree of subjectivity in determining some of these charges. The senior police officer must be reasonably satisfied that the person did use the motor vehicle in the commission of the serious offence which resulted in injury or death and the driver poses an unacceptable risk to the road safety of others before the matter is determined in court. The suspension will be put in place regardless of the offender being in custody or not.

If found guilty of committing a serious motor vehicle offence such as causing serious injury intentionally or recklessly, in circumstances of gross violence, conduct endangering life or persons, or kidnapping, while under the influence of drugs of alcohol other mandatory sanctions will apply including alcohol interlocks and behavioural change programs on relicensing as per sections 50AAA and 58C of the RSA.

Division 4 is comprised of 13 sections, 85K-85W. This division, as the name suggests, includes provisions for all general matters relating to immediate suspension. It includes matters such as the suspension being effective when the offender is provided with the notice; the requirements of the notice; refusal to surrender a licence or permit; the court will take into account time already suspended from driving when sentencing; and appeals.

As before the RSA includes appeal rights in cases where immediate licence or permit suspension has arisen.

• Section 85S enables a person to appeal to the Magistrates’ Court where an immediate licence suspension has been applied.
• The test in relation to this application is that exceptional circumstances exist in all the circumstances to justify the Magistrate cancelling the relevant s85 notice.
• There is now an added test in relation to s85 certificates and offences resulting in injury or death where the applicant must rebut the presumption that they pose an unacceptable risk to road safety.

The RSA does not define the term “exceptional circumstances”. The exceptional circumstances must be determined on the facts of the particular case.

Exceptional circumstances can be a combination of factors.  Exceptional is defined, contextually, in the Oxford English Dictionary, as meaning “unusual, special, out of the ordinary course”. This does not mean any variation from the norm it must truly be unique to the case and a compelling reason to have the suspension cancelled.

Some examples of exceptional circumstances might be

• The driver is the sole custodian of a disabled child that requires assistance
• The case against the accused is very weak
• Caring for a terminally ill parent

There is no hard and fast rule as to what is exceptional circumstances. To determine whether you have exceptional circumstances should only occur following a consultation with an experienced traffic lawyer.

The new section 85U prohibits the magistrate hearing the appeal or any other person from examining, cross examining or inquiring as to the alleged offence in respect of which the licence was suspended unless deemed necessary by defence.

Section 85V protects the accused’s right to a fair trial, any evidence produced on an appeal against a decision to immediately suspend the accused’ licence is not admissible in the proceeding for the hearing of the related charge.

The commencement of Part 6B of the RSA broadens the scope of offences that the police (and other authorities when appropriate) can immediately suspend a person’s licence. When someone immediately loses their licence without anytime to adapt, it can cause absolute havoc in the life of that person and the lives of those connected to that person.