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Traffic and driving offences

Commonly asked questions about traffic offences

Being charged with a “first offence” means this is your first major traffic offence within five years. If you have previous convictions for major traffic offences within the last five years, you will be treated as committing a “second offence.”

It is important to bear in mind that if you are charged on the basis that this is a second offence, higher maximum penalties apply, as well as longer periods of licence disqualification. It is also possible that you may be subject to mandatory interlock orders.

An interlock is an electronic breath testing device linked to the ignition system of a car, motorcycle or heavy vehicle. The driver must provide a breath sample to check for the presence of alcohol and if alcohol is detected, the vehicle will not start. There are also randomly timed breath tests throughout the journey.

Offenders convicted of high range, repeat, and other serious offences may be ordered by the court to participate in the interlock program as a condition of having their licence reinstated (in addition to a minimum licence disqualification period.)

More information about the mandatory interlock program is available here.

This relates to learner drivers and provisional license holders who drive a motor vehicle with an alcohol concentration between 0.01 and 0.019. The maximum fine for a first offence (within five years) is $1,100. Automatic and minimum licence disqualification periods apply, of six and three months respectively.

This relates to special category licence holders who drive a motor vehicle with a blood alcohol concentration between 0.020 and 0.049. The maximum fine for a first offence (within five years) is $1,100. Automatic and minimum licence disqualification periods apply, of six and three months respectively.

This means driving a motor vehicle with a blood alcohol concentration between 0.050 and 0.079. The maximum fine for a first offence is $1,100. Automatic and minimum licence disqualification periods apply, of six and three months respectively.

This means driving a motor vehicle with a blood alcohol concentration between 0.080 and 0.149. The maximum penalty for a first offence is imprisonment for nine months and/or a $2,200 fine. Automatic and minimum licence disqualification periods apply, of 12 and six months respectively.

This means driving a motor vehicle with a blood alcohol concentration of at least 0.150. The maximum penalty for a first offence is imprisonment for 18 months and/or a $3,300 fine. Automatic and minimum licence disqualification periods apply, of three years and 12 months respectively.

PCA offences require proof that you had a certain quantity of alcohol in your system. DUI offences require proof that your driving was affected by alcohol or drugs, regardless of the quantity of alcohol or drugs in your system. This will often mean that the police, or other road users, have observed you driving erratically, in circumstances where it is reasonable to conclude that you were affected by drugs or alcohol.

This means someone who has been convicted of three or more “major traffic offences” within a period of five years. The Roads and Maritime Services (RMS) will add an extra five year disqualification period to the disqualification period imposed by the court. Stacks will work to prevent you being declared a “habitual traffic offender”, or to have your habitual traffic offender status quashed, by attempting to prove that the additional disqualification period would be too severe with regard to your unique circumstances.

A “section 10 dismissal” means that the court does not record a conviction against you. In all criminal cases, the court has the discretion to deal with the case according to the provisions of section 10. As a condition of a section 10 dismissal, you may be required to sign an undertaking to be of good behaviour for a certain period of time, up to two years. However, with a section 10 dismissal there is no additional penalty and you will not have a criminal record.

It is important to bear in mind that, where a minimum license disqualification period applies to a traffic offence, a section 10 dismissal is the only way to avoid losing your licence.

Providing character references about your good character will assist your matter in court. These may be written by family friends, neighbours, work colleagues, or anyone who can provide a positive opinion about your character and any observations about you that might assist your particular matter.

It may be possible to beat a PCA drink driving charge through one of the following defences:

  • Challenging the reading
    The PCA offence relates to the amount of alcohol in your system at the time you were driving. It may be possible to prove that the reading of the police breath test did not represent your alcohol level at the time you were driving. For example, the test may have been conducted a little later, and your blood alcohol level may have fluctuated. A number of factors would need to be taken into consideration, such as how many drinks you had consumed, your weight and height, food you had consumed, medications you were taking and so on.
  • The two hour rule
    If two hours had passed between the time you were driving and the time the police conducted a breath test, then the reading of the test may not be allowed as evidence to prove you were intoxicated.
  • The “home safe” rule
    The police cannot breath test you at home. If you have already arrived home, then the reading of a test may not be allowed as evidence that you were intoxicated. The precise definition of “home” can be problematic. Stacks will be able to assist you if you believe this might be a relevant defence.
  • Honest and reliable mistake
    If you honestly believed that you were not over the limit, you may have a possible defence, although it can be difficult to prove. The success of this defence will depend on the circumstances. For example, you may have been genuinely unaware that your cold and flu medication contained alcohol and could potentially tip you over the legal limit.

This program is regulated under the Criminal Procedure Act. If you have pleaded guilty to a traffic offence, or been found guilty, the local court may refer you this program in order to develop safer driving behaviours and skills. It is a good idea to do the Traffic Offenders Intervention Program voluntarily though, prior to being sentenced for a traffic offence. This is because the court is obliged to take your participation in the program into account in determining the sentence, as evidence of remorse and commitment to rehabilitation.

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