This chapter is about traffic offences which duty solicitors are likely to encounter during the course of their work, and it is intended to provide guidance in relation to practice and procedure. To provide effective advice or representation, duty solicitors should be familiar with the elements of traffic offences, possible defences, sentencing principles and likely penalties.
| THE ROLE OF THE DUTY SOLICITOR |
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| Duty solicitors should be familiar with the most common traffic offences, and be mindful of the limitations of the role of the duty solicitor where there is a potentially serious penalty for such an offence [see Role of Duty Solicitor and Guilty Pleas chapters]. |
The role of a duty solicitor necessarily has limitations. For example, a duty solicitor would not normally represent a defendant in relation to a simple traffic matter (where there is no risk of imprisonment). However, the duty solicitor may ascertain whether or not there is a possible defence, and where there is no possible defence, the duty solicitor can assist the defendant to represent themselves by providing advice about penalties, material to put to the Court, and court procedures. In similar fashion, a duty solicitor would not normally represent a defendant on a drink-driving charge, except where the person charged is so compellingly disadvantaged there would be a risk of justice miscarrying if the person was left to his or her own devices (normally representation at a more senior level would be required in such instance).
At the end of this chapter there is a brief penalty summary for offences commonly encountered at court and access to a comprehensive list of traffic offences and penalties.
See the Expiable Offences and Fees Form PD320A on the SAPOL website for a comprehensive summary of traffic offences and penalties.
See the Expiable Offences and Fees Form PD320CAM on the SAPOL website for a comprehensive summary of prescribed camera offences and penalties.
These legislative sources are relevant to driving offences commonly encountered by duty solicitors:
Australian Road Rules [for uniform road laws throughout Australia]
Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 [offences and penalties for the Australian Road Rules]
Road Traffic (Miscellaneous) Regulations 2014 [offences and penalties for the Australian Road Rules]
Criminal Law Consolidation Act 1935 [driving related offences (including aggravated offences) and penalties]
Sentencing Act 2017 (SA) [sentencing purposes, principles, factors and penalties and court orders]
Motor Vehicles Act 1959 [laws and offences relating to the registration of motor vehicles, driver’s licences and third party insurance]
Motor Vehicles Regulations 2010 [offences and penalties under the Motor Vehicles Act 1959; the alcohol interlock scheme, the demerit point scheme, and schedules of related fees, expiation fees and demerit points]
Road Traffic Act 1961 [road use by pedestrians, vehicles, drivers, riders and passengers]
Summary Offences Act 1953 [offences and penalties]
Minor traffic offences are generally those offences which do not carry a penalty of imprisonment. Such offences can either be dealt with by court proceedings or, if the offender has been issued with a traffic infringement notice (often referred to as a TIN) by payment of a fine. The Expiation of Offences Act 1996 (SA) governs the issue of expiation fees. The Fines Enforcement and Debt Recovery Act 2017 (SA) governs the payment and enforcement of expiation fees. A person has 28 days from (and including) the date of issue of an expiation notice to pay the expiation fee [see Expiation of Offences Act 1996 (SA) s 6(1)(c)]. The offence is expiated upon payment of the fee, making the alleged offender no longer liable for prosecution for that offence [see s 15]. There is no court appearance and no conviction recorded, but the offence will incur demerit points.
Payment of the expiation fee is not an admission of guilt or civil liability and it cannot be considered evidence of such [see s 15(4)]. Furthermore, the expiation of an offence cannot be referred to in any future reports assisting a court to determine sentence for any other offence [see s 15(4)(c)].
When an expiation notice remains unpaid after the due date, unless the person has elected to be prosecuted (see below) they will automatically be found guilty of the offence. If a person does not pay the traffic infringement fine within 28 days or enter into an arrangement under section 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA), an expiation reminder notice is sent to the person [see Expiation of Offences Act 1996 s 11]. No further enforcement action can take place until 14 clear days after the date of the reminder notice [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 22(3)(a)(i)]. A reminder notice fee is added to the original traffic infringement fine [see Expiation of Offences Act 1996 (SA) s 11(3)].
If payment of the traffic infringement fine and reminder notice fee is not made within the 14 day period and the person has not entered into an agreement under section 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA), or has not lodged an election to be prosecuted, an enforcement determination may be made [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 22; Courts and Jurisdiction chapter].
Upon an enforcement determination being made:
Where an alleged offender is unable to pay the traffic infringement in full by the due date, they have the option of entering into a payment arrangement under section 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA) at any time before the payment deadline. It is not necessary to demonstrate hardship to be eligible for this option.
Payment arrangement options available under section 20 include:
Where the Chief Recovery Officer is satisfied that the debtor does not have, and it not likely to have, the means to satisfy the amount due without them or their dependants suffering hardship, they may agree to:
If the debtor complies with a requirement to perform community service, the monetary amount owing must be reduced in accordance with the regulations [see s 20(13)].
If the debtor completes or substantially completes a treatment program pursuant to an agreement with the Chief Recovery Officer, the monetary amount owing must be waived in part or in whole [see s 20(14)].
| PAYMENT OF EXPIATION FEES |
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If a person seeks advice in relation to an expiation notice, the duty solicitor should advised them that they have a number of options, but must choose one within the time allowed to pay the expiation fee (that being 28 days). The options are:
If the offence (or any of the offences) is disputed, the fine should not be paid. The person should in the first instance seek a review of the notice by writing to the expiation branch or issuing authority. The person can alternatively complete and return the traffic infringement notice having endorsed the relevant section, electing to be prosecuted. To enter into any of the arrangements under section 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA), the person should contact the Fines Enforcement and Recovery Unit as soon as possible. |
In relation to traffic infringement notice s, the alleged offender may elect to be prosecuted for the offence on the infringement notice, in which case court proceedings will commence [see Expiation of Offences Act 1996 ss 6(k) and 8].
Prosecution for traffic offences which are summary offences, and not punishable by imprisonment (for a first or subsequent offence), may be commenced by the issue of a summons on a Form 5 in accordance with the Criminal Procedure Act 1921 (SA) s 57A, or an information and summons on a Form 3 in accordance with the Criminal Procedure Act 1921 (SA) sections 49 and 57 [see Criminal Procedure Act 1921 (SA) s 57A(1)].
Defendants who wish to plead not guilty, simply attend court, either personally or through a lawyer, on the day shown on the summons.
On this form of summons (or information and summons) as outlined above, the defendant can enter a written plea of guilty and not attend court [see Criminal Procedure Act 1921(SA) ss 57A(3)]. A defendant can enter a guilty plea by indicating on the summons a wish to plead guilty to the charge(s), and may also enter in writing any details he or she would like the court to take into account when fixing the penalty. The form must be signed in front of a solicitor, a justice of the peace or a police officer, and returned to the court not less than 7 days before the date set for the hearing [Joint Criminal Rules 2022 (SA) r 70.2, Form 51 Written Guilty Plea]. A defendant can apply to withdraw his or her plea of guilty at any time before the hearing and determination of the information[see s 62B(5)].
The Court will permit a solicitor to enter a guilty plea to many traffic offences, including drink driving matters, on behalf of an absent client. In such an instance the solicitor should immediately notify his or her client of the outcome, particularly the commencement and length of any licence disqualification period, and follow up this advice with a letter of confirmation.
Where a defendant does not return the form indicating a wish to plead guilty, and fails to attend court on the date set for the hearing, the court may issue a warrant and adjourn the hearing until the defendant is apprehended, or, upon proof the summons was served a reasonable time before the hearing, proceed in the absence of the defendant to hear the information and adjudicate the matter [see Criminal Procedure Act 1921 (SA) ss 27C, 57A(4), 62(1)(a), 62(1)(b) and 62BA].
Upon conviction, the court must not impose any penalty other than a fine, impose licence disqualification, treat the offence as other than a first offence (unless proved the defendant has previously been convicted) or order the defendant to pay compensation of an amount exceeding that in the information, unless the summons was given personally to the defendant or the court first adjourns the hearing and the defendant is personally notified of the conviction, the adjourned hearing and the provisions for setting aside the conviction, and does not apply for it to be set aside [see Criminal Procedure Act 1921 s 27C(3)]. The Registrar must notify a defendant of any conviction and penalty imposed in their absence [see ss 27C(3)(4) and (5)].
Where a defendant has indicated a wish to plead guilty on the summons (or information and summons), the court may proceed to convict and sentence the defendant in his or her absence on the hearing date [see Criminal Procedure Act 1921 (SA) s 62B(2); s 62B(4) for the role of prosecutor at the hearing].
However, where a defendant has stated facts in the form which indicate that he or she has a valid defence, or which differ substantially in relevant particulars from the matters recited to the court by the prosecutor, the court may strike out the plea of guilty, adjourn the hearing of the information, and order that the defendant be served with a summons whereupon the provisions of section 57A no longer apply [see ss 62B(6) and 57].
Further, a defendant is able to withdraw a plea of guilty at any time prior to the hearing and determination of the information [see s 62B(5)].
Upon conviction, a court may not impose any sentence of imprisonment or licence disqualification (unless the procedure in 62C is followed (see below)), treat the offence as other than a first offence (unless proved the defendant has previously been convicted) or order the defendant to pay witness fees [see s 62B(7)]. The defendant must be notified of the conviction forthwith by post or in person, and advised of any fine or other monetary sum required to be paid [see s 62B(8)].
Licence disqualification
The court may not impose a licence disqualification unless the summons was given personally to the defendant or the court first adjourns the hearing to notify the defendant of the defendant’s right to be heard at the adjourned hearing [see Criminal Procedure Act 1921 (SA) s 62C(1)(a)(i)].
Imprisonment
The court must not impose a term of imprisonment unless the court first adjourns the hearing to notify the defendant of the defendant’s right to be heard on the question of penalty at the adjourned hearing [see Criminal Procedure Act 1921 (SA) s 62C(1)(b); s 62C(2) for notification of adjournment]. Upon further proceedings (whether or not the defendant appears) the court may order imprisonment or a licence disqualification, or both [see s 62C(3) where the defendant fails to attend, proof of service must be established; s 62C(4) where it is found that the Registrar was unable to notify the defendant, having made due enquiry and exercised reasonable diligence, the court may proceed in the defendant’s absence].
| MISTAKES IN A SUMMONS OR TRAFFIC INFRINGEMENT NOTICE |
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| A mistake in either a summons or a traffic infringement notice is usually not a good enough reason to have the matter dismissed. The notice may be reissued or the summons may be amended in court. The duty solicitor should always seek advice in these matters. |
In addition to the penalties contained in the Road Traffic Act 1961 (SA), many offences also carry demerit points, which are recorded by the Registrar of Motor Vehicles. The demerit points for offences committed interstate are also recorded against a South Australian licence [see Motor Vehicles Act 1959 s 98BB]. Demerit points apply from the date the offence was committed and not from the date of the conviction or the payment of the traffic infringement notice fine. Three years after an offence is committed the demerit points are erased.
In accordance with section 98BB of the Motor Vehicles Act 1959 (SA) demerit points for various offences are applied in the following manner:
To summarise, where a person is convicted or pays an expiation fee for 2 or more traffic offence(s) arising from the same incident (including camera offences, but excluding red light camera offences) they will only receive the demerit points for the most serious offence [see Motor Vehicles Act 1959 s 98B(3)]. Thus, for example, a person charged with both driving without due care and driving a vehicle without lights would only attract the demerit points for the offence which attracted the higher number of demerit points. However, a person charged with a red light offence and a speeding offence which arose from the same incident, would incur demerit points for both offences [see Motor Vehicles Act 1959 ss 98B(3a) and 98B(3b)].
A complete list of offences prescribed by the Road Traffic Act 1961, the Australian Road Rules, the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA), and the Motor Vehicles Act 1959 (SA) and their corresponding demerit points is set out in schedule 4 of the Motor Vehicles Regulations 2010 (SA).
Where the holder of a driver’s licence (including an interstate learner’s permit or interstate licence) incurs 12 or more demerit points in relation to offences committed within a period of 3 years, their driver’s licence is suspended by the Registrar of Motor Vehicles for a prescribed period [see Motor Vehicles Act 1959 ss 98BC(1) and 98BC(2)]. The relevant prescribed periods are:
The Registrar must give notice in writing to a person when they have incurred half the number of demerit points which would result in disqualification [see s 98BD(1)]. Where a person is liable for disqualification due to the number of demerit points incurred, the Registrar must notify them in writing of the date on which the disqualification will take effect and that their licence will be suspended for a prescribed period [see s 98BD(2); s 139BD for service and commencement of disqualification notices]. A notice of disqualification takes effect 28 days after the day on which the notice was served [see ss 139BD(8)(a) and 139BD(8)(b)]. If the person is already disqualified for another reason (for example, as part of a penalty imposed by a court), the demerit point disqualification begins once the other period of disqualification ends [see s 139BD(9)].
Upon receipt of a notice of disqualification, an eligible person may be offered an opportunity to accept an undertaking to be of good behaviour for a period of 12 months commencing on the day on which the disqualification would have taken effect, and in that case the notice of disqualification does not take effect [see s 98BE(2)]. If two or more demerit points in relation to one or more offences are incurred during the period of the undertaking, the resulting period of driver’s licence disqualification will be doubled [see s 98BE(2a)].
From the day a person either commences their good behaviour period, or commences a period of disqualification, the demerit points that led to the disqualification and any demerit points from offences committed prior to the disqualifying offence are erased [see s 98BE(5)]. However, any demerit points collected between the commission of the offence that raised the total to 12 and the receipt of the notice of disqualification are not erased by the disqualification. Similarly, the disqualification period is not excluded when considering the 3 year period in which a person incurs demerit points. Where demerit points have been erased in circumstances described above, the 3 year rolling period in which a person can incur 12 demerit points before being disqualified will be taken from the date the person began their disqualification.
When convicting a driver of an offence which attracts demerit points, the court can reduce the number of demerit points or order no demerit points if it is satisfied by evidence given on oath forthwith upon conviction that the offence is “trifling” or that any other “proper cause” exists [see Motor Vehicles Act 1959 s 98B(4)]. In either case, the defendant will have to tell the court that they want to plead that the offence is “trifling” or that “proper cause” exists to reduce the number of demerit points. The defendant will then be asked to give evidence on oath (sworn evidence) as to why the number of demerit points should be reduced [see Dean v Police (2008) 49 MVR 416; [2008] SASC 55as an example, but only where section 98B of the Motor Vehicles Act 1959 applies].
The word “trifling” (or trivial) means that the offence is a minor or trivial example of that particular type of offence and refers to the circumstances of the driving itself, not that the offence is a minor offence. Instead, the offence must be particularly exceptional in its nature to justify the demerit points being reduced, and therefore a normal or typical example of the offence will not ordinarily be trifling [see Siviour-Ashman v Police [2003] SASC 29]. If the court is satisfied that the offence is trifling, either no demerit points or a reduced number of demerit points may be imposed. It appears that courts have been very reluctant to find that “proper cause” exists to reduce the number of demerit points [see Gilbert v Owen (1991) 14 MVR 235; [1991] SASC 3059; Dycer v Police [2010] SASC 241 for examples]. Hardship to an offender is generally not accepted as “proper cause” sufficient to reduce the number of demerit points [see Holness v Police (2010) 56 MVR 510; [2010] SASC 314; Black v Police [2009] SASC 115]. In Miles v Police [2012] SASC 69, Doyle CJ decided that it was appropriate to consider both the circumstances of the offender and of the offence, due to some division amongst previous authorities. However, in the recent case of Heyne v Police [2019] SASC 52, Parker J favoured the reasoning in Holnessand found that the Magistrate was only entitled to consider the circumstances of the offences, and was not entitled to consider the circumstances (of the defendant) when determining whether "proper cause" existed.
| SUBMISSIONS ON REDUCTION OF DEMERIT POINTS |
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| Duty solicitors need to be aware of this issue, even though they will rarely be involved in such traffic matters, because they may have to conduct a plea for a defendant in relation to other matters but where a traffic offence is included on the information. |
The Road Traffic Act 1961 (SA) provides specific penalties for some, but not all offences in that Act. Where no penalty is stated for an offence, the penalty is a fine of up to $2,500 [see s 164A(2)].
If an offence is expiable, the expiation fee amount is contained in Schedule 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).
The Australian Road Rules are part of a national scheme to provide uniform road laws throughout Australia. A breach of various rules constitutes an offence, the maximum fine amounts for which are set out in section 67 of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations (SA) 2014.
If an offence against the Australian Road Rules is expiable, the expiation fee amount is contained in Schedule 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).
Offences against Part 3 of the Australian Road Rules (i.e. speed limits) can attract a penalty up to $5,000 [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg. 67]. Where the offence is against a provision of Part 12 of the Australian Road Rules (i.e. stopping and parking) the maximum penalty is a fine of $1,250 [reg 67].
It is not unusual for offences to carry both an expiation fee amount (which applies if the offence is expiated) and a maximum fine amount (which applies if the offence is not expiated).
For a comprehensive summary of traffic offences and current penalties, see Form PD320A Expiable Offences and Fees on the SAPOL website.
For a comprehensive summary of prescribed camera offences and current penalties, see Form PD320CAM Expiable Offences and Fees on the SAPOL website.
A sentencing court can impose a licence disqualification and order the registration of a motor vehicle be suspended or cancelled for any offence against the Road Traffic Act 1961 (SA) relating to motor vehicles; or any offence under any other Act or law where a motor vehicle was involved in the commission of an offence; or where the commission of an offence was facilitated by the use of a motor vehicle [see s 168(1)].
Furthermore, where a court of summary jurisdiction is satisfied a person has used, or is likely to use, a motor vehicle in connection with the commission of any offence or to facilitate an escape from arrest or punishment, it may order that the person who used, or is likely to use, the vehicle be disqualified from driving [see s 170].
Where a court imposes a sentence of imprisonment (other than a suspended sentence) and orders a person be disqualified from driving for a specified period, the person will be taken to be disqualified for a period which commences at the time the order is made, but ending at a time calculated as if the specified period commenced upon the person’s release from serving that period of imprisonment [see Road Traffic Act 1961 (SA) s 169B(1)]. This provision applies despite the fact it may result in a period of disqualification exceeding any prescribed maximum period [see s 169B(2)].
The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) and the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) provide powers to relevant authorities and the courts in relation to clamping, impounding and forfeiture of motor vehicles. At any time before proceedings for a prescribed offence have been finalised, a relevant authority can clamp or impound either a motor vehicle allegedly used by a defendant in the commission of an offence or any motor vehicle of which a defendant is the registered owner. This may occur where a defendant is reported for a prescribed offence and has been advised of that fact, or where a defendant has been arrested and charged in relation to a prescribed offence [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ss 5(1) and 5(3)]. This does not apply to a person who has received an expiation notice for an offence, unless that notice is withdrawn or the person elects to be prosecuted for the offence [see s 5(2)]. A vehicle can be clamped or impounded for a period of 28 days, however, applications can be made by the Police Commissioner to the Magistrates Court for an extension [ss 6, 7]. If an extension is granted it can be for no more than 90 days.
In accordance with the Act and associated regulations, a prescribed offence for the purpose of the Act is:
[see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5]
A sentencing court, when imposing another penalty on a person in relation to a prescribed offence, must have regard to any exercises of power under the Act [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 s 4]. Prosecution may apply for an order that a motor vehicle specified in their application be forfeited to the Crown upon a conviction for a prescribed offence. The court, on the application of the prosecution, must order such forfeiture where the offence is a forfeiture offence, or the convicted person has been found guilty of or expiated at least one other prescribed offence committed or allegedly committed within ten years of the date of the offence [see s 12(1)(a)].
Prosecution may apply for an order that a motor vehicle specified in their application be impounded for a period not exceeding six months upon a conviction for a prescribed offence. The Court, on the application of the prosecution, must order the motor vehicle to be impounded if the convicted person has been found guilty of or expiated at least one other prescribed offence committed or allegedly committed within ten years of the date of the offence [see s 12(1)(b)].
Where the court makes either order, it also must order the convicted person to pay fees in relation to the forfeiture or impounding of the motor vehicle [see s 12(1a)]. Upon the hearing of such application, the court must hear representations in relation to the application [see s 12(3)].
It is important to note that a court may decline to make an order for forfeiture of, or to impound a motor vehicle where it is satisfied that:
[see s 13(1)]
The Court may consider ordering community service where it declines to make such an order [see s 13(2)].
Applications are governed by Chapter 6 Part 7 of the Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 7.
| RELEVANT OFFENCES AND OFFENCE DATES |
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When dealing with driving offences, the duty solicitor should check the date on which the offending is alleged to have occurred and check that the relevant legislation and regulations were in effect on that date. |
In accordance with the Australian Road Rules the driver of every vehicle concerned in an accident must:
A report must be made to the police within the required time where:
A driver who is involved in a car accident must report to a police officer where real or personal property (other than an animal) is destroyed or damaged in the accident, but does not have to report where the only property destroyed or damaged is property owned by the driver, or where a fair estimate of the cost of making good the damage to property, is not more than $3,000 [see Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 39]. Failure to comply with this requirement is an offence for which the maximum penalty is a fine of $2,500 [see reg 67].
There are a number of situations related to driving where it is an offence to not answer truthfully questions put by a police officer or to fail to obey the lawful directions of a police officer.
A police officer, for the purpose of, or in connection with the exercise of their powers under a road law, may direct the driver of a vehicle to stop the vehicle. Failure to respond to such a direction is an offence for which the maximum penalty is a fine of $5,000 [see Road Traffic Act 1961 (SA) s 40H]. In addition, a police officer may request personal details from any person whom the police officer suspects on reasonable grounds has committed, is committing, or is about to commit, an Australian Road Law offence; or who is able to assist in the investigation of an Australian Road Law offence or suspected Road Law Offence; or who is or may be the driver of a vehicle involved in an accident [see Road Traffic Act 1961 (SA) s 40V]. It is an offence to contravene a direction to provide personal details or to provide false or misleading information, for which the maximum penalty is a fine of $5,000 [see s 40V].
Under the Motor Vehicles Act 1959 (SA) a person must answer any question that would help to identify the driver of a motor vehicle [see s 137(b)]. The maximum penalty for failure to comply is a fine of $750 [see s 137]. Drivers must also produce their licences when requested by a police officer, either immediately or to a specified police station within forty-eight hours [see s 96(1)]. A person who disobeys this requirement may be fined up to $1,250 [see s 96(1)]. However, a person who holds a probationary licence, provisional licence or learner’s permit must carry that licence or permit at all times when driving and must produce the licence or permit immediately if requested to do so by a police officer. The maximum penalty is a fine of $1,250 [see s 98AAB]. It is also an offence for a person to falsely represent to a police officer that they are the person named in the licence or learner’s permit, for which the maximum penalty is a fine of $750 [see s 96(3)]. A court may also require a person to produce their licence or learner’s permit to the court at the time of the hearing of the charge, and failure to do so is an offence for which the maximum penalty is a fine of $1,250 [see s 97(1)].
A police officer may ask questions about the identity of the driver of a vehicle at a particular time or on a particular occasion [see Summary Offences Act 1953 (SA) s 74AB(1)]. It is an offence to refuse to answer, or to provide false or misleading information [see s 74AB(2)]. On a broader level, where there is reasonable cause to suspect a person has committed, is committing, or is about to commit, an offence, or where a person may be able to assist with the investigation of an offence, that person must provide their name and other personal details as requested by a police officer [see s 74A(1)]. Further information in relation to police powers can be found in the Police Powers and Forensic Procedures chapter.
These offences may be detected by speed and red light traffic cameras [see Motor Vehicles Act 1959 (SA) sch 1 s 2(1)].
Unregistered vehicles
It is an offence to drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand on a road. The maximum penalty is a fine of $7,500 [see Motor Vehicles Act 1959 (SA) s 9(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007(SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b) but not a first offence]. It is a defence if a person drove the vehicle or allowed it to stand in prescribed circumstances and did not know it was unregistered [see s 9(1a)]. It is also a defence if the person was the driver, but not the owner of the vehicle, and did not know, and could not have reasonably be expected to have known, that the vehicle was unregistered [see s 9(1c)].
Where an unregistered motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty is a fine of $7,500 [see Motor Vehicles Act 1959 (SA) s 9(3)]. It is a defence if the owner did not drive or leave the vehicle standing on the road and took reasonable steps to ensure that any person lawfully entitled to use the vehicle would have been aware it was unregistered [see s 9(4a)]. It is also a defence if the vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 9(5)], or the person was the last registered owner but was no longer the owner at the time of the alleged offence [see s 9(6)].
Uninsured vehicles
It is also an offence to drive a motor vehicle on a road, or cause an uninsured motor vehicle to stand on a road when it is not covered by third party insurance [see Motor Vehicles Act 1959 (SA) s 102(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b) but not a first offence]. Where an uninsured motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence. The maximum penalty for these offences is a fine of $10,000 [see Motor Vehicles Act 1959 (SA) s 102(2); s 102 for defences which mirror those for unregistered vehicles].
It is an offence to exceed the speed limit by 45 kilometres an hour or more [see Road Traffic Act 1961(SA) s 45A(1)].
If a court convicts a person the penalty will be [s 45A(1), (3)]:
An aggravated offence includes where the offender [s 45A(4a)]:
[See also Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b); Road Traffic Act 1961(SA) s 45B - police may impose licence disqualification with an expiation notice].
In determining whether an offence is a first or a subsequent offence, a conviction for any previous offence against this section (or s 46 (reckless and dangerous driving)) will be taken into account if it was committed within 5 years of the current offence [Road Traffic Act 1961 (SA) s 45A(4)].
The police may give a person a notice of licence disqualification or suspension when they issue an expiation notice for an offence against section 45A (or pursuant to section 79B to the owner of a motor vehicle), or where the officer reasonably believes that a person has committed the section 45A offence [s 45B(1)]. This can be an instant loss of licence. Where a court convicts the person of an offence in relation to which the notice was given, or another offence arising from the same course of conduct, and a mandatory minimum period of disqualification is prescribed for that offence, the court must order that disqualification. In determining the period of disqualification the court must take into account the period of disqualification that applied to the person as a result of the notice, and it may impose a period less than the mandatory period [s 45B(7)].
It is an offence to drive without due care or attention or without reasonable consideration for other road users [Road Traffic Act 1961 (SA) s 45(1)]. As no penalty is stated for a basic offence, the penalty is a fine of up to $2,500 [s 164A(2)] and 3 demerit points [Motor Vehicles Regulations 2010 (SA) Sch 4 pt 1(1)]. In addition, a licence disqualification penalty may apply [see s 168; Thomas v Police (2010) 55 MVR 76; [2010] SASC 18]. This offence is not expiable.
The maximum penalty for an aggravated offence is 12 months imprisonment and a licence disqualification of at least 6 months [s 45(2)]. The 6-month disqualification is not mandatory if the aggravating circumstances were that the offence caused harm to a person if that harm fell short of serious harm [s 45(2a)].
Pursuant to s 45(3), an aggravated offence includes where the offender:
As a person who has been in any way negligent in the driving of a motor vehicle may be charged with this offence, it is often used as an alternative to a specific offence, such as failing to signal an intention to turn or changing lanes at a time when it is dangerous to do so.
It is an offence to misuse a motor vehicle in a public place by taking part in any form of race, speed trial, vehicle pursuit or competitive trial. It is an offence to sustain a wheel spin in a public place, cause engine or tyre noise in a public place, or both, where it is likely to disturb persons in the vicinity. It is an offence to drive onto an area of park or garden (whether public or private) or a road-related area in a manner so as to break up the ground surface or cause other damage [see Road Traffic Act 1961 (SA) s 44B(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. As no penalty is stated for the offence, the penalty is a fine of up to $2,500 [see Road Traffic Act 1961 (SA) s 164A(2)]. In addition, a licence disqualification penalty could apply [see s 168].
The Motor Vehicles Act 1959 (SA) governs the law relating to driving licences; including provisions relating to the obtaining of a learner’s permit, probationary licence, and full licence [see Motor Vehicles Act 1959 (SA); Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) for the law relating to the obtaining of a learner’s permit, probationary, provisional and full licence, and for specific offences for holders of learner’s permits, probationary and provisional licences]. Some commonly encountered offences under this Act are referred to below.
The Motor Vehicles Act 1959 (SA) prohibits a person from driving a motor vehicle on a road unless they hold a current and appropriate driver’s licence or learner’s permit for that particular class of vehicle [see s 74(3)].
Where the person has previously held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty is a fine of $1250 [see s 74(1)].
Where the person has never held a driver’s licence under the Motor Vehicles Act 1959 (SA), or under the law of another State or Territory of the Commonwealth, the maximum penalty for a first offence is a fine of $2,500, but for a subsequent offence, the maximum penalty is a fine of $5,000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. A subsequent offence includes any previous offence against this section or section 91(5) or (5a) (see Drive whilst disqualified (below)) for which the defendant has been convicted, but only if the previous offence was committed within three years prior to the date of the offence under consideration [see Motor Vehicles Act 1959 (SA) s 74(6); Police v Hallett (2010) 56 MVR 179; [2010] SASC 256; Camplin v Police [2007] SASC 94 for subsequent offence]. Where a person is convicted of an offence against section 74(2) which is a subsequent offence, there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. A subsequent offence under s 74(2) is not an expiable offence [see s 74(2b)].
If a driver has been disqualified for certain drink or drug driving offences, and drives without first reapplying for their licence at the end of the disqualification period, they will face a maximum penalty of a fine of $5000 or imprisonment for 1 year [see Motor Vehicles Act 1959 (SA) ss 74(2ab) and 74(2ac)].
This applies in one of the following circumstances where the offence for which the person was disqualified for:
Where a driver is convicted in these circumstances, and where the maximum penalty is a fine of $5000 or imprisonment for 1 year, they will also be liable to serve a mandatory 3 year licence disqualification [see Motor Vehicles Act 1959 (SA) s 74(5)(a)]. This disqualification period cannot be reduced or mitigated in any way [see Motor Vehicles Act 1959 (SA) s 74(5)(b)].
Where the person has been disqualified from driving as a consequence of being convicted of a serious drink driving offence, and has not since the end of the disqualification been authorised to drive a motor vehicle, the maximum penalty for driving disqualified is a fine of $5,000 or imprisonment for one year [see Motor Vehicles Act 1959 (SA) s 74(2a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)].
See section 81E of the Motor Vehicles Act 1959 (SA) for definition of serious drink driving offence.
This offence differs to the offences contained in section 74(2ab) of the Motor Vehicles Act 1959 (SA), which consider a person's drink and drug driving convictions and/or expiations from the preceding 5 years.
Where the person is convicted of an offence against section 74(2a) there is a mandatory licence disqualification of at least three years [see Motor Vehicles Act 1959 (SA) s 74(5)]. An offence under section 74(2a) is not an expiable offence [see s 74(2b)].
| DEALING WITH DRIVING UNLICENSED MATTERS |
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| In respect of a first offence for driving unlicensed, a defendant can expect to be fined. As such, the duty solicitor does not usually deal with these matters.
However, the law has significantly changed in relation to repeat or serious drink and drug drivers who fail to reapply for their licence at the end of the disqualification period. A potential term of imprisonment can apply where a person is charged with driving unlicensed where that person has never previously held a driver’s licence or learner’s permit, or has been disqualified for a serious drink driving offence. Where there have been previous drink or drug convictions or expiations within the past 5 years, or where the offence is committed while a child aged under 16 years was present, there is also the possibility of a period of imprisonment being imposed and a mandatory licence disqualification of at least three years. Extreme speed and excessive speed are now offences with imprisonment penalties. The duty solicitor should approach these matters in a similar way as for the offence of driving whilst disqualified, as discussed below. |
As part of the penalty enforcement provisions under Part 7 Division 1 of the Fines Enforcement and Debt Recovery Act 2017 (SA), the Chief Recovery Officer may suspend a debtor’s driver’s licence by written determination [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 38(2)]. Such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence [see s 38(1)]. The suspension takes effect 14 days from the date of the determination and remains in effect until cancelled by the Chief Recovery Officer [s 38(3)].
A copy of the written determination must be given to the debtor [see s 38(2)(a)]. The person will have a defence to this charge if the notice of suspension was not received.
It is an offence to drive a motor vehicle on a road while a driver’s licence is suspended or or a person is disqualified from driving (see Motor Vehicles Act 1959 (SA) s 91). This section states that a person must not drive a motor vehicle on a road while his or her driver’s licence or learner’s permit is suspended, or while disqualified from driving in this State or any other State or Territory of the Commonwealth or from holding or obtaining a licence or learner’s permit [see Motor Vehicles Act 1959 (SA) s 91(5) and (5a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. Where licence is suspended under section 38 of the Fines Enforcement and Recovery Act 2017 (SA) the maximum penalty for a first offence is imprisonment for six months and for a subsequent offence the maximum penalty is imprisonment for two years [see Motor Vehicles Act 1959 (SA) s 91(5)]. In all other cases, the maximum penalty is imprisonment for 12 months for a first offence or imprisonment for 3 years for a subsequent offence (making the subsequent offence a minor indictable offence) [s 91(5a)].
| CHECK THAT THE CORRECT OFFENCE HAS BEEN LAID |
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| It is important to note that the penalties under section 91 now differentiate between a licence suspension under section 38 of the Fines Enforcement and Debt Recovery Act 2017 (SA) (fines suspension) and where the license is suspended or disqualified in any other case.
It is important to determine the nature of the operating order of disqualification or suspension and ensure that the correct offence has been laid before the Court. If in doubt, always seek the advice of a senior practitioner. |
Driving whilst disqualified is regarded by the court as a very serious offence because it usually constitutes a defiance of, and contempt for, an order either of the court or a Registrar. As a general rule a penalty of imprisonment will be imposed by the sentencing court.
There is now a difference in penalty between a disqualification ordered by a court (such as for a drink-driving or other traffic offence or for an illegal use/interference offence) and a suspension under section 38 of the Fines Recovery and Enforcement Act 2017 (SA). The maximum penalty is imprisonment for 6 months for a first offence and imprisonment of up to 2 years for a subsequent offence if their driver’s licence or permit is suspended under section 38 of Fines Enforcement and Debt Recovery Act 2017 (SA) [Motor Vehicles Act 1959 (SA) s 91(5)]. Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders [see Crook v Roberts (1990) 53 SASR 236; Maione v Higgins [1991] SASC 2698; and Springall v Police (2007) 252 LSJS 160; [2007] SASC 425 for interstate disqualifications].
| LIMITATIONS OF THE ROLE OF THE DUTY SOLICITOR |
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| Duty solicitors should not conduct pleas of guilty for people charged with driving whilst disqualified. The exception may be where an unrepresented defendant is in a position of extreme disadvantage. Even then the duty solicitor should only act after obtaining a senior practitioner's advice, and with signed instructions. The usual role for a duty solicitor with defendants charged with driving whilst disqualified is to advise them of the procedures and penalties, and to encourage them to seek legal aid or private representation. |
Many defendants do not realise the seriousness of this offence, nor that the penalty may be a sentence of imprisonment in “run of the mill” cases, even for a first offence. It is important that the duty solicitor explains to the defendant that:
Where a defendant insists on pleading guilty unrepresented, it is important to emphasise that a Magistrate may well find no grounds to suspend a sentence of imprisonment, and that the defendant may be taken into custody immediately following sentencing.
A duty solicitor is not in a position to take the necessary detailed instructions to present submissions in mitigation; these would include:
Failure to adequately prepare submissions in mitigation could adversely affect the chances of a defendant who later wishes to appeal an immediate sentence of imprisonment, owing to the fact that he or she was represented by counsel at the time of sentencing [see Guilty Pleas chapter].
| DEFENDANTS IN CUSTODY |
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| A duty solicitor may be of genuine assistance by representing a defendant on a guilty plea to a charge of drive disqualified where the defendant has been refused bail on that charge alone, and has already spent a period in custody without instructing a solicitor. Such situations arise rarely, and if they do you must seek senior advice before proceeding on a guilty plea.
REMEMBER: never act on a guilty plea for drive disqualified without first getting senior advice, keeping detailed notes and obtaining signed instructions [see Guilty Pleas chapter]. |
As a rule of thumb, an unsuspended term of imprisonment may range from ten days to one month depending on the circumstances. It may be longer where aggravating factors are alleged, such as a high blood alcohol reading, reckless driving, a prior offending record which suggests long-term contempt for road traffic laws, or where the offence has occurred very soon after the disqualification. A term of imprisonment for a subsequent offence is significantly more severe.
Courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of immediate imprisonment is generally held to be sufficient penalty [see Saddler v Crossman (1988) 47 SASR 331]. It should be noted, however, that this authority refers specifically to a case where the penalty was an immediate period of imprisonment. As the discretion to suspend a sentence of imprisonment has now been restored by Police v Cadd & Others (1997) 69 SASR 150;[1997] SASC 6187 (as discussed below), a question is now raised as to whether Magistrates may sometimes take the view that where imprisonment is suspended it may be appropriate to order a further disqualification by way of penalty. There is discretion to impose a licence disqualification for any offence relating to motor vehicles, including where a motor vehicle was involved in the commission of an offence, or where the commission of an offence was facilitated by the use of a motor vehicle [see Road Traffic Act 1961 s 168(1); R, J v Police [2006] SASC 153].
The following commentary is intended only as a general guide to the sentencing principles and standards in relation to drive disqualified offence(s), mitigating factors and the defence of honest and reasonable mistake of fact. Since the judgments of the former Full Court in Police v Cadd & Others (1997) 69 SASR 150; [1997] SASC 6187 (‘Cadd’), there have been many single Judge decisions on appeal on the subject of the proper approach to sentencing defendants convicted of driving whilst disqualified. There remains disagreement and inconsistency as to the proper application of the principles in Cadd . This is another good reason why duty solicitors must be cautious when dealing with defendants charged with the offence of driving whilst disqualified.
Prior to Cadd the leading authority was Coombe v Douris (1987) 47 SASR 324, which was subsequently followed in Eldridge v Bates (1989) 51 SASR 532. These cases established rigorous sentencing standards under which there was no discretion to suspend a sentence of imprisonment in any but rare and exceptional circumstances, such as a decision to drive in a situation of serious emergency. Where it was submitted that such a situation had arisen at the time of driving, the sentencing Magistrate should hear evidence as to those facts.
Since Cadd it appears that the sentencing Magistrate’s discretion to consider whether there was good reason to suspend a sentence of imprisonment or to depart from the penalty provided by the legislation was restored by virtue of the previous Criminal Law (Sentencing) Act 1988 (SA) ss 10, 11, 18 and 38 [see current Sentencing Act 2017 (SA) ss 10, 11 and 96].
Several propositions may be extracted from Cadd and later single Judge and Full Court decisions:
Weight should be given to general deterrence
The sentencing Magistrate should give appropriate weight to the principle of general deterrence. The prevalence of the offence and its corrosive effect upon the efficacy of licence disqualification as a punishment require the court to maintain a sentencing standard which reflects the seriousness of the offence.
Serving a custodial sentence is not inevitable
Contrary to the decision in Coombe v Douris, a custodial sentence and the requirement to actually serve that period of imprisonment is no longer to be taken as an almost inevitable consequence of conviction. Such a sentencing standard would fetter the discretion of a sentencing Magistrate.
A custodial sentence is normally appropriate where the driving is "contumacious"
As explained by Mullighan J, in Cadd (at 179):
[The] standard, accepting these matters and giving appropriate emphasis to general deterrence should be imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment such as a substantial fine or community service in the appropriate case. I use the word “contumacious” in the sense that it is understood in the law: see [Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3] at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. In other cases involving a first offender where the offending is otherwise, the starting point need not necessarily be imprisonment. The obligation to have regard to the matters set out in [the previous] ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 and established sentencing principles are sufficient further guide to the sentence.
*Please note that the previous Criminal Law (Sentencing) Act 1988 (SA) as referred to above was replaced by the Sentencing Act 2017 (SA) which commenced on 30 April 2018.
The court must consider "good reason" for suspension even where imprisonment seems appropriate
Even where a sentence of imprisonment may be appropriate because of the contumacious character of the driving itself, the sentencing Magistrate should nevertheless have regard to whether there is good reason to suspend that sentence [see Sentencing Act 2017 (SA) s 96].
Alternative penalties may be considered where the offending is not contumacious
Where the circumstances of the offending do not amount to contumaciousness the Magistrate may find there is good reason to substitute an alternative penalty such as a fine or community service [see Sentencing Act 2017 (SA) s 25].
Suspension of sentence for second or subsequent offenders is not possible
In the case of a second or subsequent offence, it will naturally be harder but not necessarily impossible for the sentencing Magistrate to order a penalty other than an immediate sentence of imprisonment. As explained by Lander J, in Cadd (at 201):
For each further offence of driving whilst under suspension the prospects of the offender being imprisoned and/or failing to satisfy a sentencing Magistrate that good reason exists for suspending the sentence, increase. A person who commits a second or subsequent offence will, because of the circumstances of the offence, be more likely to be imprisoned in relation to that offence. That is because a second offence would ordinarily exhibit contumacy on the part of the offender. So also will that person be more likely to be unable to satisfy the court that good reason exists for the suspension of the sentence. Again however, in my opinion, having regard to the fact that this type of offence is simply one which must be considered in relation to the circumstances of the offence and the circumstances of the offender it would be inappropriate to lay down any further guidelines than that.
Similarly, Mullighan J, in Cadd (at 180):
Of course, different considerations must apply to the offender who is before the Court on this charge for a second or subsequent occasion. Circumstances which would justify other than a sentence of imprisonment actually to be served do not readily come to mind, but that is not to say that they cannot exist.
Progressive steps must be taken in determining penalty
The Court is required to approach the sentencing task by progressive steps to determine the appropriate penalty in the individual case. English v Police [1997] SASC 6266 (Unreported, Lander J, 22 July 1997), which was one of the first appeal cases after Cadd. The appellant had been sentenced to an immediate term of imprisonment for 21 days just prior to the decision in Cadd. Counsel for the appellant submitted that the appellant believed the disqualification had expired at the time he drove. The appeal was allowed and the matter remitted back to the summary court for sentencing afresh and to hear evidence if necessary. The sentencing Magistrate would have to first satisfy him or herself whether the circumstances amounted to contumacious offending to determine whether a sentence of imprisonment should be imposed. If it were, the question of suspension would then need to be considered.
The procedural steps to determining penalty are:
1. Is the decision to drive whilst disqualified one which should be characterised as “contumacious”?
If so, then the starting point should be a sentence of imprisonment. If not, the court may find good reason to impose a lesser penalty such as a fine or community service.
For example, in Harshazi v Police (1998) 71 SASR 316; [1998] SASC 6663, the sentencing Magistrate did not first conclude that the driving was “contumacious”, describing it instead as “foolish”. The defendant had been detected driving at 162 kph in a 110 kph zone. He had been a passenger but had taken over driving while his friend consumed food bought at a service station stop. Justice Mullighan allowed the appeal stating (at 318):
[u]pon consideration of the circumstances of the offending, a foolish and not contumacious act, and the personal circumstances of the appellant, application of the sentencing standard in Cadd would not lead to a sentence of imprisonment.
In Police v Carletti[2020] SASC 118 the defendant was given an instant loss of licence notice by police for drink driving, but did not realise that they were disqualified as they expected to receive a summons to attend court. The Supreme Court held that defendant's driving was non-contumacious, after hearing evidence on oath and reviewing police body worn video. The Court imposed a fine, with no conviction.
[see Nash v Police [2009] SASC 112; Scholes v Police [2005] SASC 116; Rhodes v Police [1999] SASC 191 regarding “foolish” offending; White v Police (2000) 76 SASR 430;[2000] SASC 127) for “foolish and unthinking”; Wright v Police [2005] SASC 462for employment; Lennon v Police (2005) 238 LSJS 185;[2005] SASC 11) for good explanation of "contumacious"]
2. Where the driving is found to have been contumacious the court should have regard to the personal circumstances of the offender to consider whether there is good reason to suspend a sentence of imprisonment.
Circumstances such as previous good character, age, medical or mental health factors, whether the offence was premeditated, whether the defendant has employment, whether the defendant’s incarceration would cause hardship for any dependants, whether there were any extenuating circumstances in the context of the decision to drive under disqualification are among the circumstances which the court may have regard to.
On this point, Justice Lander in Johns v Police [1998] SASC 6729, said (at 7):
However, even if it is contumacious behaviour it will not necessarily give rise to an immediate sentence of imprisonment. There will still need to be an inquiry into whether good reason exists for suspending the sentence [see Sentencing Act 2017 (SA) s 96].
3. Where the driving is found not to be contumacious or may be characterised as trivial or committed in the context of genuine emergency the full range of sentencing options and principles arising under the Sentencing Act 2017 (SA) is available to the sentencing Magistrate.
There would appear to be no reason why the court should not consider exercising its discretion under the Sentencing Act 2017 (SA) section 24 to refrain from ordering that a conviction be recorded, if it proposes to order a fine, a sentence of community service, or both [see Bates v SA Police (1997) 70 SASR 66; [1997] SASC 6430); Valentincic v Police [1997] SASC 6477 for examples]. However, it must be conceded that without conviction cases would be rare in view of the serious nature of the offence. In addition to trivial or emergency situation examples, driving which would be accepted as non-contumacious would normally include those cases where the driver has acted under a mistake of law, such as where the driver was in genuine error as to the operative dates of the disqualification, or the time at which the disqualification came into effect or expired, or was under an honest but not reasonable misapprehension as to the operation of an administrative disqualification by the Registrar of Motor Vehicles. However, prosecution may challenge the “non-contumacious” basis of a plea of guilty and the defendant and any witnesses may be required to give evidence on oath as to the circumstances and state of mind which led to the driving.
When is driving "contumacious"?
There still exist opposing judicial views as to the type of driving which should be held to exhibit “contumaciousness”.
In Bates v Police, Perry J stated (at 73):
... the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance ... I am of the view that to satisfy the element of defiance necessary to convert a wilful disobedience of an order of suspension into a contumacious breach of the section, it is sufficient that a person who well knows that he or she is disqualified from driving, deliberately drives in circumstances in which the passage of driving is more than momentary or for a short distance, such as removing a car from a street into an adjacent driveway, and is not ameliorated by reference to circumstances such as an emergency or some other form of duress.
In Harshazi v Police, Mullighan J disagreed (at 319, 320):
After considering the meaning of contumacious and concluding, correctly in my view, that “the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance”, which is the view expressed in Cadd, Perry J went on to say ... It is not appropriate, in my view, in effect to circumscribe the circumstances which amount to contumacious offending in the manner expressed by Perry J. The offending may not be contumacious even though the driving is over more than a short distance and in circumstances [that] do not involve an emergency of duress. The present case is an example. The offending was foolish, not contumacious. If the meaning of contumacious in the present context was defined in that way so as to exclude only very few types of cases from its reach, there would be a very different sentencing standard than that expressed by the majority in Cadd.
"Defiance"
Of particular note, both views (as cited above) appear to be in agreement that ‘the law draws a distinction between conduct which is merely wilful and conduct which is contumacious, the latter apparently involving some element of defiance’. The quality of “defiance” required to characterise the driving as contumacious was discussed by Lander J in Johns v Police (at 7):
Because the test is contumacy the inquiry must be more directed to attitude. The reasons for driving a motor vehicle, in circumstances where the offender well knew that he or she had been ordered by a Court or by administrative action not to drive a motor vehicle, are important. If the driving exhibits an attitude of defiance then that would normally amount to contumacy and may call for a sentence of imprisonment. To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the Court. If the offender’s attitude exhibits defiance that would suggest contumacy.
In Police v Nissen [2014] SASCFC 7 and Police v Chilton [2014] SASCFC 76 the respective defendants' driving were held to be contumacious as there was an attitude of total disregard for the disqualifying authority.
The defendant was disqualified due to demerit points and was a first offender. He made regular arrangements for alternative transport to adjust to the disqualification and had arranged for a friend to drive him and his two sons to Port Pirie for a BMX race meeting. The friend was too intoxicated to drive them back to Adelaide three days later so the defendant drove. Lander J was not prepared to categorise his behaviour as contumacious because it did not indicate an attitude of total disregard of, and disobedience to the authority which had ordered the disqualification. Up until the point in time when he drove the car his behaviour had suggested appropriate obedience to the disqualifying authority [see Johns v Police [1998] SASC 6729].
The defendant was a 23-year-old man who drove his unregistered and uninsured car to obtain parts for it, but only thirteen days after the disqualification imposed. He had prior convictions for unregistered and uninsured driving. Perry J held that the driving was contumacious and that an immediate sentence of imprisonment would have been appropriate were it not for the effect of his incarceration on the two young children of his sister to whom he was sole de facto parent, his sister having suicided in custody some four years before. The effect on dependants is a matter which should be taken into account [see Bates v Police (1997) 70 SASR 66; [1997] SASC 6430].
The defendant was disqualified for a PCA offence. The sentencing Magistrate characterised the defendant’s act of taking over the driving whilst his friend consumed food bought at a service station stop, and in so doing driving at 162 kph in a 110 kph zone, as “foolish”. The defendant received an immediate term of imprisonment of two weeks. Mullighan J substituted this penalty with an order for 50 hours community service on the basis that the Magistrate did not conclude that the offending was contumacious and did not have sufficient regard to the personal circumstances of the appellant and in particular to his employment and family circumstances [see Harshazi v Police (1998) 71 SASR 316; [1998] SASC 6663].
The defendant’s only prior conviction was for the PCA offence which had led to his disqualification, and he had positive character references from his employers. The driving was “one-off” in nature: the defendant had been riding his bicycle to work regularly and had not told his employer of his disqualification, fearing he would be dismissed. On the occasion of the offence, the employer had unexpectedly required him to travel to an associated place of work at the end of his late shift when no public transport was available. The defendant panicked, rode his bicycle home to get his car and drove to the required destination. On appeal it was held not to be a premeditated, positive act of defiance with a number of substantial mitigating features. The original sentence of immediate imprisonment for a period of seven days was set aside, and a sentence of twenty-one days imprisonment (suspended) substituted [see Theophilus v Police [1998] SASC 6521].
The defendant was disqualified by order of the Registrar of Motor Vehicles for non-payment of fines. He drove from home to Hungry Jack’s because he ‘just wanted a burger’ and intended to drive back home. He had a de facto wife and a five-year-old child, and he had undergone training and obtained permanent employment since the offence. He was ordered to serve an immediate term of imprisonment for a period of twenty-one days. On appeal, it was held that the offending was contumacious and warranted a term of imprisonment but it would be appropriate to suspend the term of imprisonment. The grounds for this decision was based upon the realisation that an immediate term of imprisonment would likely undo the rehabilitation undertaken by the appellant during the six months between the offence and the date of the hearing [see Hinds v Police[1997] SASC 6259 (Unreported, Lander J, 15 July 1997). This was a decision handed down soon after Cadd ].
The defendant had received concurrent sentences of twenty-one days each for driving whilst disqualified and driving under the influence of alcohol. He had been disqualified as a result of a previous PCA offence but had never before served a custodial sentence. He had driven from Murray Bridge to Mannum reluctantly and under a considerable degree of pressure from his intoxicated friend, his own judgement being impaired by alcohol. Olsson J held the breach to be clearly contumacious saying: ‘... even if he was in an alcoholic haze at the time, the appellant well appreciated the seriousness of driving in the manner in which he did, and of the possible consequences of that driving.’ Although the situation was ‘perhaps somewhat near to the borderline in relation to consideration of suspension’ there was nothing that would take the case out of the usual run-of-the-mill cases of this type and no error found in declining to suspend [see Valentincic v Police [1997] SASC 6477].
The defendant drove a friend’s vehicle from a city hotel with a blood alcohol reading of 0.254. This was his fourth drink driving offence in the space of six years. It was argued that a requirement to serve a sentence of immediate imprisonment would result in a loss of employment and would cause distress to his ill and elderly Greek parents. On appeal it was held that an antecedent record for “like” offences and an extreme degree of intoxication were aggravating factors which could not be mitigated by the submission that he was so befuddled by his state of intoxication as to take the driving out of the “contumacious” category [see Drivas v Police [1998] SASC 6520].
The defendant had received an immediate sentence of imprisonment of fourteen days. He was a fifty-five-year-old grandfather on a disability support pension. He had taken his six-year-old grand-daughter to the Royal Show and had returned to his wife’s house with her to get a lift home. His wife was not home and the house was locked. There was no public transport available and no money for a taxi. It was raining heavily and the child was crying with discomfort. The defendant took the spare car key from outside the house and drove home with the child. On appeal, despite some sympathy for the circumstances, it was found there was no error in not exercising the discretion to suspend. Leniency was appropriately shown by ordering an immediate sentence of imprisonment of fourteen days only [see French v Police [1998] SASC 6532].
The defendant was a sole parent to two young children. She drove to pick her sons up from an access visit with their father, when a prior arrangement fell through due to her mother’s illness. There was a background of severe violence from the children’s father and a psychiatrist’s report advising against imprisonment. A sentence of ten days imprisonment to be served was upheld [see Ballone v Police [1998] SASC 6534].
The defendant had a background of post-traumatic stress disorder and clinical depression. He was disqualified as a result of a PCA offence. When driving under disqualification he had a blood alcohol reading of 0.227. The defendant had not intended to drive but had run out of alcohol and took his girlfriend’s car keys from the table without thinking, to go to the hotel for more alcohol. An order to serve twenty-eight days imprisonment was upheld on appeal. While the background and circumstances of the appellant did justify some compassion, the driving was contumacious and aggravated by the high blood alcohol reading in the context of the prior PCA disqualification [see Wood v Police [1998] SASC 6543].
The defendant had a deplorable record including offences involving the use of motor vehicles. The drive whilst disqualified offence was committed while the defendant was on parole. He rode a motorcycle a short distance from a reserve at Morgan to the house where the motorcycle was kept. Psychiatrist’s and parole officer’s reports indicated that a sentence of imprisonment would have a detrimental effect on his continuing rehabilitation. On appeal it was held that although this was not a particularly serious example of an offence of its type, it was nevertheless not a case of a minor breach nor one committed by a first offender. Therefore there was no proper basis for suspending. The sentence with a non-parole period of twenty-eight days was appropriate [see Cox v Police[1997] SASC 6110 (Unreported, Duggan J, 11 July 1997)].
The degree of defiance in the offending will be important in consideration of penalty [see Johnston v Wilkinson (1983) 11 A Crim R 140]. The Court will look at the following factors in determining defiance:
Defying a disqualification order for the purpose of engaging in unlawful activities such as driving a “getaway car” is a serious offence. Driving whilst disqualified, coupled with a manner of driving which breaches any provisions in the Road Traffic Act 1961, and particularly where that breach repeats the breach that resulted in the initial disqualification, will be viewed seriously by the Court [see Evans v Higgins (1989)153 LSJS 454].
Section 15E of the Criminal Law Consolidation Act 1935 (SA) commenced on 1 February 2021, which creates a statutory defence of 'sudden or extraordinary emergency'.
This defence is applicable to the offence of driving whilst disqualified, see further Law Handbook DEFENCES section.
The defence of honest and reasonable mistake of fact is available for the offence of drive whilst disqualified [see Davis v Bates (1986) 43 SASR 149]. This defence may arise where the driver claims that he or she was unaware of disqualification, such as where the driver was not present in court when the order was made or where the driver doesn't receive a demerit point notice informing him or her of a licence disqualification.
| NO NOTIFICATION OF DISQUALIFICATION |
|---|
It is important for the duty solicitor to note that if a person is disqualified other than by court order and denies receiving notification of that disqualification, it is up to the prosecution to prove that the notice was received. Without such proof the charge would ordinarily be withdrawn after negotiations. |
Appeal cases on defence of honest and reasonable mistake of fact
The defendant was convicted of illegal use of a motor vehicle and disqualified until further order. The defendant was under the impression that he was disqualified for nine months and had applied and received a licence after the nine months had elapsed. On appeal it was held that no offence is committed if there is an honest and mistaken belief, based on reasonable grounds, as to the state of facts, which if true, would render the act itself innocent [see Davis v Bates (1986) 43 SASR 149].
The defendant was disqualified for a breach of probationary conditions and disqualified for three months until the twenty-fifth of January. He was caught driving on the twenty-fifth of January and raised the defence of an honest mistaken belief on reasonable grounds. On appeal it was held that the mistaken belief as to the effect of the endorsement on the licence was a mistake of law and the defence was therefore not available. The defendant made a mistake about the interpretation of the true effect in law of the endorsement on his licence which stated ‘disqualified to 25th January 1988’. That is, he was mistaken as to the legal significance of the relevant facts, whereas a mistake of fact would be where the driver made a mistake as to the actual facts [see Khammash v Rowbottom (1989) 51 SASR 172; Webb v Owen [1991] SASC 3207 (Unreported, Legoe J, 12 December 1991); Police v Pace (2008) 186 A Crim R 113; [2008] SASC 182].
In Morcom v Police [2017] SASC 147, the Supreme Court held that the defence was made out as the defendant made an inquiry with Service SA and was told that the licence was not suspended. The defendant held an honest and reasonable belief that they were permitted to drive, which amounted in truth to a mistake of fact.
The Road Traffic Act 1961 creates three major offences involving the combination of driving and drugs or alcohol. These are commonly known as:
A police officer can require a person to take a breath test in a number of circumstances including where that person was involved in an accident, has committed a driving offence, or where the person’s manner of driving shows that they may be affected by alcohol.
A police officer may also require the driver of any motor vehicle that approaches a random breath testing station to submit to an alcotest, which is a small hand held unit that drivers blow into, usually without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 [see s 47H].
The police have a broad power to require a person to submit to an alcotest or breath analysis, or both. A police officer can require a person to submit to an alcotest where that police officer believes on reasonable grounds that a person is driving, or has driven a motor vehicle; is attempting, or has attempted to put a motor vehicle in motion; or is acting, or has acted as a qualified supervising driver for the holder of a permit or licence [see Road Traffic Act 1961s 47E(1)]. In addition, a police officer can randomly direct a person driving a vehicle to stop the vehicle and submit to an alcotest or breath analysis [see ss 47E(2); s 47EA for exercise of random testing powers]. A person may not, in the exercise by police of random testing powers, be required to submit to a breath analysis unless an alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person [see s 47E(2ab)]. An alcotest or breath analysis may not be commenced more than eight hours after the conduct of the person which gave rise to the requirement [see s 47E(2b)].
When an alcotest shows that the prescribed concentration of alcohol may be present in the blood of a driver, the driver can be required to submit to a breath analysis. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of their right to have a blood test taken and that, if a blood test is not taken, the result of the breath test cannot be challenged in court [see Road Traffic Act 1961 s 47K(2a)(a); Road Traffic (Miscellaneous) Regulations 2014 regs 21 and 22]. Furthermore, a police officer may request further testing by way of a drug screening test, an oral fluid analysis, or a blood test in certain circumstances [see Road Traffic Act 1961 s 47EAA for further information].
It is an offence to drive a vehicle, or attempt to put a motor vehicle in motion, while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle [see Road Traffic Act 1961 s 47; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)].
First Offence: a fine of not less than $1,100 and not more than $1,600, or imprisonment for not more than 3 months, and a mandatory licence disqualification for not less than 12 months [see Road Traffic Act 1961 ss 47(1)(a) and 47(3)(a)(i)].
Subsequent Offence: a fine of not less than $1,900 and not more than $2,900, or imprisonment for not more than 6 months, and a mandatory licence disqualification for not less than 3 years [see ss 47(1)(b) and 47(3)(a)(ii)].
In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47(3)(b)]
For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired [see s 47(2)]. It is therefore possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. In attempting to prove charges of driving under the influence, prosecution submit evidence of the manner in which the vehicle was being driven and any signs of intoxication, for example the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes, and slow or slurred speech.
This offence differs from the offence of driving while exceeding the prescribed concentration of alcohol in your blood ("Exceed PCA").
A person who drives, or attempts to drive, a vehicle so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle AND while a child under the age of 16 years is present in the vehicle, is guilty of an offence [see Road Traffic Act 1961 (SA) s 47(1a)].
The same penalties apply as if the person was charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).
In the event a person is charged with driving under the influence while a child is present in the vehicle, and the court is not satisfied that the offence has been committed, the court can instead convict the person of driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA) if that offence has so been established [see Road Traffic Act 1961 (SA) s 47(1b)].
Where a person is convicted of driving under the influence while a child is present in the vehicle, they will be required to undertake a drug and alcohol dependency assessment before reapplying for their licence, to show they are no longer dependant on drugs or alcohol - see Drug and Alcohol Assessment; [Motor Vehicles Act 1959 (SA) s 79B(1)(c)].
It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while there is present in their blood the prescribed concentration of alcohol [see Road Traffic Act 1961 s 47B(1); Motor Vehicles Act 1959 s 81C for licence disqualification upon expiation; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. The prescribed concentration of alcohol is a concentration of .05 grams or more of alcohol in 100 millilitres of blood. For unlicensed, learner or probationary drivers the prescribed concentration of alcohol is zero [see Road Traffic Act 1961 s 47A for definition].
| VOLUNTARY BLOOD TEST |
|---|
| When a person’s blood alcohol level is ascertained by a breath test, it is presumed to have been the person’s blood alcohol level for the 3 hours immediately before the test [see Road Traffic Act 1961 s 47K(1)]. As this presumption cannot be challenged in court in any way except by the results of a blood test, whenever a breath analysis reading shows 0.08 or more the person should consider asking that a blood test be taken. |
The following penalties apply:
Where the concentration of alcohol is more than .05 and less than .08 grams in 100 millilitres of blood [see Road Traffic Act 1961 s 47A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications upon conviction and Motor Vehicles Act 1959 (SA) s 81C(2) for licence disqualifications issued by Registrar of Motor Vehicles].
First Offence: if expiated, fine of $951 (as at 1 July 2024) and no disqualification period applies
$1,100 fine and mandatory licence disqualification for not less than 3 months.
Second Offence: $1,100 fine and mandatory licence disqualification for not less than 6 months (if expiated, disqualification of 3 months applies)
Third Offence: $1,100 fine and mandatory licence disqualification for not less than 9 months (if expiated, disqualification of 6 months applies).
Subsequent Offence: $1,100 fine and mandatory licence disqualification for not less than 12 months.
A person may be given a disqualification notice for a second, third or subsequent offence regardless of whether or not they have already been convicted of, or expiated a previous offence at the time they committed the second, third or subsequent offence [Motor Vehicles Act 1959 (SA) s 81C(11)]. The Registrar of Motor Vehicles can also issue a disqualification notice if it turns out that a period of disqualification, or a longer period of disqualification, applies due to the offence actually being a second, third or subsequent offence [s 81C(4)].
A person may be required to undergo a drug or alcohol dependency assessment before reapplying for their licence following disqualification if the offence is a third or subsequent offence (regardless of whether the person has already expiated, or been convicted of, the previous offences [see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 79B(1)(c)(iii) and (7a)].
Where the concentration of alcohol is less than .15 grams, but not less than .08 grams, in 100 millilitres of blood [see Road Traffic Act 1961 s 47A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].
First Offence: a fine of not less than $900 and not more than $1,300 and mandatory licence disqualification for not less than 6 months.
Second Offence: a fine of not less than $1,100 and not more than $1,600 and mandatory licence disqualification for not less than 12 months.
Third Offence: a fine of not less than $1,500 and not more than $2,200 and mandatory licence disqualification for not less than 2 years.
Subsequent Offence: a fine of not less than $1,500 and not more than $2,200 and mandatory licence disqualification for not less than 2 years.
A person may be required to undergo a drug or alcohol dependency assessment before reapplying for their licence following disqualification if the offence is a second or subsequent offence (regardless of whether the person has already expiated, or been convicted of, the previous offences [see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 79B(1)(c)(ii) and (7a)].
A concentration of alcohol of .15 grams or more in 100 millilitres of blood [see Road Traffic Act 1961 s 47A for definition; s 47B(1) for penalties; s 47B(3) for licence disqualifications].
First Offence: a fine of not less than $1,100 and not more than $1,600 and mandatory licence disqualification for not less than 12 months.
Second Offence: a fine of not less than $1,600 and not more than $2,400 and mandatory licence disqualification for not less than 3 years.
Third Offence: a fine of not less than $1,900 and not more than $2,900 and mandatory licence disqualification for not less than 3 years.
Subsequent Offence: a fine of not less than $1,900 and not more than $2,900 and mandatory licence disqualification for not less than 3 years.
A person may be required to undergo a drug or alcohol dependency assessment before reapplying for their licence following disqualification if the offence is a second or subsequent offence (regardless of whether the person has already expiated, or been convicted of, the previous offences [see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 79B(1)(c)(ii) and (7a)].
In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961s 47B(4)]. The prescribed period is 3 years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and 5 years in any other case [see s 47A(3) for definition of prescribed period].
In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but not for less than one month [see s 47B(3)(b)].
The definitions for category 1, 2 and 3 offences came into effect on 1 May 2009, and apply to any offence which occurred on or after that date [see Statutes Amendment (Transport Portfolio-Alcohol and Drugs) Act 2009 (SA)].
A person can be charged with a separate PCA offence if they drive, or attempt to drive, a motor vehicle with more than the 'prescribed concentration of alcohol' in their blood AND a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47B(1a)].
For the purposes of this offence, the prescribed concentration of alcohol is 0.08 or higher (Category 2 or higher). A person charged with this offence faces the same penalty as if they were charged with the equivalent offence pursuant to section 47B(1) of the Road Traffic Act 1961 (SA).
Where a person is convicted of driving with more than the prescribed concentration of alcohol in their blood and while a child aged under 16 years is present, they will be required to undergo a drug or alcohol dependency assessment before reapplying for their licence [see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)].
It is an offence for a person to drive a motor vehicle, or attempt to put a motor vehicle in motion while a prescribed drug is present in his or her oral fluid or blood [see Road Traffic Act 1961 s 47BA; Motor Vehicles Act 1959 s 81D; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. For the purposes of this section, a prescribed drug is: delta-9-tetrahydrocannabinol, methyl amphetamine or 3, 4-methylenedioxymethamphetamine (MDMA) [see Road Traffic (Miscellaneous) Regulations 2014 reg 16].
As of 8 March 2018, a mandatory 3 month licence disqualification applies for a first offence of driving with prescribed drug in oral fluid or blood.
First Offence: (if expiated) expiation fee of $951 (as at 1 July 2024) and disqualification of 3 months; OR (if court issued) a fine of not less than $900 and not more than $1,300 and mandatory licence disqualification for not less than 6 months.
Second Offence: a fine of not less than $1,100 and not more than $1,600 and mandatory licence disqualification for not less than 12 months.
Third Offence: a fine of not less than $1,500 and not more than $2,200 and a mandatory licence disqualification for not less than 2 years.
Subsequent Offence: a fined of not less than $1,500 and not more than $2,200 and a mandatory licence disqualification for not less than 3 years.
A person may be required to undergo a drug or alcohol dependency assessment before reapplying for their licence following disqualification if the offence is a second or subsequent offence (regardless of whether the person has already expiated, or been convicted of, the previous offences [see Drug and Alcohol Assessment; Motor Vehicles Act 1959 (SA) s 79B(2)(c) and (7a)].
In determining whether an offence is a first, second, third or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see Road Traffic Act 1961 (SA) s 47BA(5)]. The prescribed period is 3 years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and 5 years in any other case [see s 47A(3) for definition of prescribed period].
| WHERE CHARGES ARE LAID FOR DUI AND PCA |
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| Where a defendant is pleading guilty, and charges have been laid for both DUI and PCA arising from the same incident or set of facts, the Court should first deal with the DUI offence. After that offence has been dealt with, if the PCA charge is not withdrawn by the police, it should be dismissed without proceeding to conviction or penalty [see Police v Jozinovic (2004) 40 MVR 385;[2004] SASC 64]. |
It is an offence to drive a vehicle where a prescribed drug is present in a person's oral fluid or blood, AND a child aged under 16 years is also present in the vehicle at the time of the offence [see Road Traffic Act 1961 (SA) s 47BA (1a)].
Mandatory licence disqualifications apply for this offence. The same penalties apply as if the person was charged with Driving with a prescribed drug in oral fluid or blood pursuant to section 47BA(1) of the Road Traffic Act 1961 (SA). Penalties are as follows:
First Offence: If expiated - $786 (as at 1 July 2022) [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2] and 4 demerit points; licence disqualification of 3 months; OR
If court ordered - $900 - $1,300; 4 demerit points; licence disqualification of not less than 6 months.
Second Offence: $1,100 - $1,600; 4 demerit points; licence disqualification of not less than 12 months.
Third Offence: $1,500 - $2,200; 4 demerit points; licence disqualification of not less than 2 years.
Subsequent Offence: $1,500 - $2,200; 4 demerit points; licence disqualification of not less than 3 years.
A person convicted of this offence will be required to undergo a drug dependency assessment prior to reapplying for their licence at the end of the disqualification period, to show they are not dependant on drugs [see Motor Vehicles Act 1959 (SA) 79B(2)(c)].
It is an offence to refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement to submit to an alcotest or breath analysis, particularly to refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted [see Road Traffic Act 1961 s 47E(3) for offence and defences; Jasinski v Police (2004) 234 LSJS 262; [2004] SASC 183 for strict liability offence].
First Offence: a fine of not less than $1,100 and not more than $1,600 with mandatory licence disqualification for a period not less than 12 months.
Subsequent Offence: a fine of not less than $1,900 and not more than $2,900 with mandatory licence disqualification for a period not less than 3 years [see Road Traffic Act 1961 s 47E(3); s 47E(6) for mandatory licence disqualifications].
In the case of a first offence, where the court is satisfied by evidence given on oath that the offence is trifling the Court may order a lesser period of disqualification but for not less than one month [see s 47E(6)(b)].
In determining whether an offence is a first or subsequent offence, any previous drink or drug driving offence(s) for which the defendant has been convicted by a court within the prescribed period immediately preceding the date on which the offence under consideration was committed will be taken into account [see s 47E(7)]. The prescribed period is 3 years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and 5 years in any other case [see s 47A(3) for definition of prescribed period].
It is an offence to refuse or fail to submit to a drug screening test, oral fluid analysis or blood test (Road Traffic Act 1961 (SA) s 47EAA). The penalties that apply are:
First Offence: a fine of not less than $900 and not more than $1,300 with a mandatory licence disqualification for a period not less than 12 months;
Subsequent Offence: a fine of not less than $1,500 and not more than $2,200 with a mandatory licence disqualification for a period not less than 3 years.
See Road Traffic Act 1961 (SA) s 47EAA(9); Road Traffic Act 1961 (SA) s 47EAA(16).
Most of the offences for drink and drug driving under the Road Traffic Act 1961 provide that where a person has been convicted by a court previously for a drink or drug driving offence, and that has occurred within the “prescribed period” immediately preceding the date on which the offence under consideration occurred, those previous offences will be taken into account to determine whether the offence is a first, second, third or subsequent offence.
Section 47A provides the “prescribed period” is 3 years in the case of a previous offence that is a category one offence (that being an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood) and 5 years in any other case [see s 47A(3) for definition of prescribed period].
On this basis, if a person commits an offence having committed a drink or drug driving offence within the previous 5 years, they are to be dealt with as a second or subsequent offender.
A person who has committed an offence more than 5 years earlier will be given a penalty within a first offence category, but the Court may choose to take the previous offence into account and give the driver a higher penalty within that range.
The Court has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied that the offence is trifling. When deciding whether or not an offence is trifling, the court takes into account all of the surrounding circumstances, including the blood alcohol level, the extent of impairment of faculties, the locality, the nature and extent of the driving and the actual or potential damage to the public. A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional. A person’s need for a licence is also not relevant. Only rarely will an offence be considered trifling.
Most defendants lose their licence for at least the minimum period, and it is not possible to retain a driver’s licence, even on a restricted basis such as during working hours, even if a defendant establishes that they will lose employment as a result. When the disqualification period is over, a person must hold a probationary licence for at least one year.
An alcohol interlock device is a breath testing device fitted to a motor vehicle that requires a person to pass a breath alcohol test before they can start their motor vehicle or continue to operate the vehicle.
There is currently a mandatory alcohol interlock scheme in accordance with section 81E of the Motor Vehicles Act 1959 (SA).
In accordance with the Motor Vehicles Act 1959 (SA) section 81E(3), if a person who applies for a licence has been disqualified by an order of a court on conviction for a serious drink driving offence (which is any drink driving offence but not a category one offence or a category 2, first offence) which was committed on or after commencement of this section, and that person has not held a licence since the end of the period of disqualification, a licence issued to that person must be subject to mandatory alcohol interlock scheme conditions [see Motor Vehicles Act 1959 (SA) s 81E(1) for definition of serious drink driving offence; s 81E(3)(3) for the prescribed minimum period; s 81F for alcohol interlock conditions; s 81H for contravention penalties].
A person who is subject to the mandatory alcohol interlock scheme is exempt from a requirement to undergo a drug or alcohol dependency assessment as contained in sections 79B(1) and 79B(2) of the Motor Vehicles Act 1959 (SA).
Special provisions relating to drug and alcohol dependency assessments apply to certain people reapplying for their licence at the end of a disqualification period.
A person will be required to undergo an alcohol dependency assessment in order to regain their licence, where the offence for which the person was disqualified for:
An offence may be taken into account as committed or allegedly committed within the period of 5 years beforehand regardless of whether or not they had been convicted of or expiated the offence at the time of their commission of the disqualification office [s 79B(7a)]. In these instances, prior to re-issuing the person's licence, the Registrar of Motor Vehicles must direct the person to submit to an assessment for an alcohol dependency program, unless the Registrar is satisfied that the person has already completed an alcohol treatment program not more than 60 days prior before reapplying for their licence, and that they are not dependent on alcohol [Motor Vehicles Act 1959 (SA) s 79B(1)].
Similar provisions apply to certain drug driving offences. A person will be required to undergo a drug dependency assessment in order to regain their licence, where it was cancelled under section 81D(2)(a) or where the offence for which the person was disqualified for:
An offence may be taken into account as committed or allegedly committed within the period of 5 years beforehand regardless of whether or not they had been convicted of or expiated the offence at the time of their commission of the disqualification office [s 79B(7a)]. In these instances, prior to re-issuing the person's licence, the Registrar of Motor Vehicles must direct the person to submit to an assessment for a drug dependency program, unless the Registrar is satisfied that the person has already completed an drug treatment program not more than 60 days prior before reapplying for their licence, and that they are not dependent on drugs [Motor Vehicles Act 1959 (SA) s 79B(2)].
If a person undergoes a drug or alcohol dependency assessment, and on the basis of the report they are deemed to be dependant on drugs or alcohol, the Registrar of Motor Vehicles must refuse to issue them a licence until they are satisfied the person is no longer drug or alcohol dependent [Motor Vehicles Act 1959 (SA) ss 79B(4) and 79B(5)]. The Registrar can consider reports from approved drug and alcohol assessment providers in determining whether to re-issue the licence. A person is liable for the cost of undergoing the drug or alcohol dependency assessment(s) themselves.
Police have the power to impose immediate licence disqualification or suspension for drink driving offences [Road Traffic Act 1961 (SA) s 47IAA]. They require only a reasonable belief that a person has committed an offence in one of the following categories:
When does the immediate disqualification commence?
Suspension or disqualification for offences in the above categories commences from the time the notice is issued by police (i.e. at the time the offence was committed) unless the police officer forms the view that it would be appropriate to postpone the the commencement for 48 hours (or 28 days for section 47BA(1) or (1a) offence) [s 47IAA(12)(a)].
When proceedings for the offence are determined by a court, if the Magistrates Court finds a person guilty of the offence (‘a conviction’) the suspension/disqualification continues until the sentenced period has been served. When ordering the disqualification/suspension period the Magistrate is able to backdate the commencement of the suspension/disqualification to the date that the instant loss of licence notice was issued by police [s 47IAA(9)].
An instant loss of licence will have an end date, however this may be extended (or reduced) when the offence is determined by the court [s 47IAA(12)].
Can they be enforced nationwide?
A nationwide agreement exists to enforce these suspensions so they are effective in all states. For example, if a driver with a NSW licence is charged with a category 3 drink driving offence whilst driving in South Australia (e.g. exceed Prescribed Concentration Alcohol - 0.15), their resulting suspension will apply within South Australia and any other state immediately.
Conditions for appeal
A person can apply to have a disqualification or suspension lifted or to have the period of disqualification or suspension reduced [s 47IAB, Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 3 Division 1]. Applications must be in writing in the form prescribed and are made to the Magistrates Court. Once an application to have the disqualification or suspension lifted or reduced is filed with the Court, the matter will be heard before a Magistrate immediately through a Directions Hearing.
The Magistrates Court may make the following orders under the conditions specified:
See also Excessive speed and Extreme speed.
Aggravating factors are those factors particular to the offence, the victim or the defendant which may warrant a higher penalty.
The Criminal Law Consolidation Act 1935 (SA) contains specific maximum penalties for basic and aggravated offences. Factors which aggravate an offence committed whilst using a motor vehicle are:
For more information about aggravating factors, see the Sentencing chapter.
It is an offence to drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person [Road Traffic Act 1961 (SA) s 46]. The maximum penalty is:
[See also Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)].
A mandatory licence disqualification applies:
In determining whether the offence is a first or subsequent offence, only a previous offence against section 46(1) for which the defendant has been convicted, and which was committed within the period of five years immediately preceding the commission of the offence under consideration, will be taken into account [s 46(4)].
In considering whether an offence has been committed under this section, the Court must take into account a number of factors, including the nature, condition and use of the road on which the alleged offence occurred, the amount of traffic on the road at the time of the alleged offence, the amount of traffic reasonably expected to enter the road from other roads and places, and all other relevant circumstances [s 46(2)].
Police have the power to impose an immediate licence disqualification or suspension notice for the offence of dangerous driving [Road Traffic Act 1961 (SA) s 47IAA(1)(ba), see Instant or immediate loss of licence].
It is an offence to drive a motor vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person intending to escape pursuit by police or cause police to engage in a pursuit [see Criminal Law Consolidation Act 1935 (SA) s 19AC(1)]. The maximum penalty for a basic offence is imprisonment for three years and mandatory licence disqualification for not less than two years. The maximum penalty for an aggravated offence is imprisonment for five years and mandatory licence disqualification for not less than two years [see Criminal Law Consolidation Act 1935 (SA) ss 19AC(1) and 19AC(2)].
Pursuant to s 19ADA of the Criminal Law Consolidation Act 1935 (SA)], a person drives at an extreme speed if they exceed the speed limit:
There are exceptions for emergency vehicles [defined in 19ADA(10) of the Criminal Law Consolidation Act 1935 (SA) and reg 5 of the Criminal Law Consolidation (General) Regulations 2021 (SA)].
The maximum penalty is 3 years imprisonment for a basic offence and 5 years imprisonment for an aggravated offence.
According to s 5AA(1d) of the Criminal Law Consolidation Act 1935 (SA), an offence against s 19ADA will be aggravated if:
Mandatory minimum disqualification periods also apply following conviction: for a first offence - 2 years for a basic offence and 5 years for an aggravated offence, and for a subsequent offence - 5 years.
A person cannot be convicted of both an offence against s 29 of the Criminal Law Consolidation Act 1935 (SA) (acts or omissions that endanger life/create risk of serious harm) and the extreme speed offence, if the charge arises out of the same set of circumstances.
Instant Loss of Licence
If a police officer reasonably believes that a driver has committed the offence of driving at extreme speed, they may issue an instant loss of licence notice (ILOL notice) [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)].
A driver who receives an ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AF(6)]
The ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A].
A notice of immediate licence disqualification or suspension must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA).
It is an offence to drive, use or interfere with a motor vehicle without first obtaining the consent of the owner of the vehicle [see Criminal Law Consolidation Act 1935 s 86A]. For a first offence the maximum penalty is imprisonment for two years, for a subsequent offence imprisonment for not less than three months and not more than four years. There is also a mandatory licence disqualification for twelve months [see s 86A(2)].
| OFFENCES RELATED TO DEATH OR INJURY |
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| Where a person has been killed or injured in a motor vehicle accident as a result of the driver driving with undue care, or dangerous or reckless driving, the person responsible may face serious charges. As such, these matters are much more serious than regular traffic offences and are considered criminal offences. They are not to be dealt with by duty solicitors other than on the basis of a remand or bail application. The following information is included for completeness. |
It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person, if that conduct causes the death of another [Criminal Law Consolidation Act 1935 (SA) s 19A].
The maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for at least ten years. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for life and mandatory licence disqualification for at least ten years [s 19A].
Instant Loss of Licence
If a driver is formally charged with the offence of causing death by dangerous driving (via the laying of an Information in court), the Commissioner of Police must give the driver a notice of immediate licence disqualification or suspension (ILOL notice). The Commissioner of Police must ensure the prescribed details of the notice are forwarded to the Registrar of Motor Vehicles. The Registrar of Motor Vehicles must then post a separate notice of licence disqualification or suspension to the driver [Criminal Law Consolidation Act 1935 (SA) s 19AE(1-4)].
A police officer may issue an ILOL notice where they reasonably believe that a driver has committed the offence of death by dangerous driving [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)]. The prescribed period of disqualification under an ILOL notice issued in such circumstances is up to 12 months [s 19AF(17)].
An ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A]. The ILOL notice must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA). A driver who receives a ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AE(6); s 19AF(6)].
It is an offence to drive a vehicle in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person and by that culpable negligence, recklessness or other conduct, cause harm to another [see Criminal Law Consolidation Act 1935 (SA) s19A(3)]. Where serious harm was caused to a person, the maximum penalty for a first offence which is a basic offence is imprisonment for fifteen years and mandatory licence disqualification for ten years or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence, or for a subsequent offence is imprisonment for life and mandatory licence disqualification for ten years or longer as the Court sees fit [see s 19A].
Where serious harm was not caused the maximum penalty for a first offence which is a basic offence is imprisonment for five years and mandatory licence disqualification for one year or longer as the Court sees fit. The maximum penalty for a first offence which is an aggravated offence or for a subsequent offence is imprisonment for seven years and mandatory licence disqualification for three years or longer as the Court sees fit [see s 19A].
It is an offence to drive without due care or attention or without reasonable consideration for other road users [see Road Traffic Act 1961 (SA) s 45].
Where a court convicts a person for an aggravated offence against this section, the maximum penalty is imprisonment for 12 months and mandatory licence disqualification of not less than six months [see Road Traffic Act 1961 (SA) s 45(2); Arthur v Police (2008) 101 SASR 529; [2008] SASC 213; Police v Jachmann (2010) 57 MVR 171; [2010] SASC 345; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5(b)]. The 6-month disqualification is not mandatory if the aggravating circumstances were that the offence caused harm to a person if that harm fell short of serious harm [s 45(2a)].
An aggravated offence is:
Other related offences include cause death or physical harm by driving without due care and failure to satisfy the statutory obligations of a driver in relation to a car accident [Criminal Law Consolidation Act 1935 (SA) s 19AB].
Pursuant to s 19ADA of the Criminal Law Consolidation Act 1935 (SA), a person drives at an extreme speed if they exceed the speed limit:
There are exceptions for emergency vehicles (as defined in 19ADA(10) of the Criminal Law Consolidation Act 1935 (SA) and reg 5 of the Criminal Law Consolidation (General) Regulations 2021 (SA)).
The maximum penalty is 5 years imprisonment for an aggravated offence.
According to s 5AA(1d) of the Criminal Law Consolidation Act 1935 (SA), an offence against s 19ADA will be aggravated if:
Mandatory minimum disqualification periods also apply following conviction. For a first offence, 5 years (aggravated offence); 5 years (subsequent offence).
Instant Loss of Licence
If a police officer reasonably believes that a driver has committed the offence of driving at extreme speed, they may issue an instant loss of licence notice 'ILOL notice' [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)].
A driver who receives a ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AF(6)]
The ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A].
A notice of immediate licence disqualification or suspension must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA).
BRIEF PENALTY SUMMARY - TRAFFIC OFFENCES (as at January 2024) | ||
|---|---|---|
| Description of offence | Section | Maximum Penalty (Fine/Imprisonment/Mandatory Licence Disqualification) |
| Drive or cause unregistered motor vehicle to stand on road | s 9(1) | $7,500 |
| Own unregistered motor vehicle that is driven or standing on road | s 9(3) | $7,500 |
| Drive unlicensed | s 74(1) | $1,250 |
| Drive unlicensed (never held a licence) | s 74(2) |
First Offence: $2,500 Subsequent offence: $5,000 / 1 year / disqualification 3 years [see s 74(5)] |
| Drive unlicensed (disqualification for serious drink driving offence) | s 74(2a) | $5,000 / 1 year / disqualification 3 years [see s 74(5)] |
| Drive unlicensed (previous disqualification for certain drink or drug driving offences) | s 74(2ab) | $5,000 / 1 year / disqualification 3 years |
| Instant loss of licence (pursuant to s 47IAA of the Road Traffic Act 1961 (SA)) | s 81D(2) |
Disqualification where instant loss of licence
Disqualification where no instant loss of licence
|
Drive disqualified pursuant to s 38 of the Fines Enforcement and Debt Recovery Act 2017 (SA) |
s 91(5) |
First Offence: 6 months' imprisonment Subsequent Offence: 2 years' imprisonment |
| Drive disqualified for all other offences | s 91(5a) |
First Offence: 12 months' imprisonment Subsequent Offence: 3 years' imprisonment |
| Fail to produce driver's licence within 48 hours | s 96(1) | $1,250 |
| False representation to police as to being the person named in licence | s 96(3) | $750 |
| Fail to produce licence to a court | s 97(1) | $1,250 |
| Fail to immediately produce driver's licence (probationary, provisional licence or learner’s permit) | s 98AAB | $1,250 |
| Drive uninsured | s 102(1) | $10,000 |
| Owner of uninsured motor vehicle driven or standing on road | s 102(2) | $10,000 |
| Fail to notify insurer of accident causing death or injury to a person | s 124(2) | $1,250 / 3 months |
| Fail to answer questions as to identity of driver | s 137 | $750 |
| Fail to stop motor vehicle at police request | s 40H(5) | $5,000 |
| Fail to provide personal details to police | s 40V(4) | $5,000 |
| Fail to stop, give assistance, and present to a police officer following involvement in an accident in which a person is killed or injured | s 43(1) | 5 years / disqualification not less than 1 year (but if trifling, not less than 1 month) [see s 43(2)] |
| Misuse motor vehicle | s 44B(5) | Unspecified compensation may be payable |
| Driving ultra high powered vehicle with disabled automated intervention system | s 44C(1) | $5,000 |
| Careless driving (driving without due care) | s 45(1) |
Aggravated offence: 12 months / disqualification not less than 6 months (unless aggravating circumstances are cause harm only) |
| Excessive speed (Exceed speed limit by 45 kilometres or more) | s 45A(1) |
First offence - basic: not less than $3,000 and not more than $5,000 / disqualification not less than 6 months Aggravated first offence, or subsequent offence: up to 2 years' imprisonment / disqualification not less than 2 years |
| Drive recklessly or at a speed or in a manner which is dangerous | s 46(1) |
First Offence: $5,000 / 2 years imprisonment / disqualification not less than 12 months Subsequent Offence: 3 years imprisonment / disqualification not less than 3 years |
| Driving under the influence (DUI) | s 47 |
First Offence: not less than $1,100 and not more than $1,600 / 3 months' imprisonment / disqualification not less than 12 months (but if trifling not less than 1 month) Subsequent Offence: not less than $1,900 not more than $2,900 / 6 months' imprisonment / disqualification not less than 3 years |
| Driving under the influence (DUI) while child aged under 16 present | s 47(1a) |
First Offence: not less than $1,100 and not more than $1,600 / or not more than 3 months / disqualification not less than 12 months (but if trifling not less than 1 month) Subsequent Offence: not less than $1,900 not more than $2,900 / or not more than 6 months / disqualification not less than 3 years |
| Prescribed concentration of alcohol (PCA) | s 47B(1) | |
| Category One Offence
0.05 - 0.079 grams in 100 millilitres of blood |
s 47B(1) |
First Offence: (if expiated) fine of $824 (as at 11 September 2023) First Offence:$1,100 / disqualification not less than 3 months (but if trifling, disqualification not less than 1 month) Second Offence: $1,100 / disqualification not less than 6 months Third Offence: $1,100 / disqualification not less than 9 months Subsequent Offence: $1,100 / disqualification not less than 12 months |
| Category Two Offence
0.08 - 0.149 grams in 100 millilitres of blood |
s 47B(1) |
First Offence: not less than $900 not more than $1,300 / disqualification not less than 6 months (but if trifling, disqualification not less than 1 month) Second Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months Third Offence: not less than $1,500 not more than $2,200 / disqualification not less than 2 years Subsequent Offence: not less than $1,500 not more than $2,200 / disqualification not less than 2 years |
| Category Three Offence
0.15 grams or more in 100 millilitres of blood |
s 47B(1) |
First Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months but if trifling disqualification not less than 1 month Second Offence: not less than $1,600 not more than $2,400 / disqualification not less than 3 years Third Offence: not less than $1,900 not more than $2,900 / disqualification not less than 3 years Subsequent Offence: not less than $1,900 not more than $2,900 / disqualification not less than 3 years |
| Prescribed concentration of alcohol (PCA) while child aged under 16 present in vehicle | s 47B(1a) | Same as category two and category three penalties as listed for PCA s 47B(1) |
| Prescribed drug present in oral fluid or blood | s 47BA(1) |
First Offence: (if expiated) fine of $824 (as at 11 September 2023) / disqualification of 3 months First Offence: (if court ordered) fine of not less than $900 not more than $1,300 / disqualification not less than 6 months Second Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months Third Offence: not less than $1, 500 not more than $2, 200 / disqualification not less than 2 years Subsequent Offence: not less than $1, 500 not more than $2, 200/ disqualification not less than 3 years |
| Prescribed drug present in oral fluid or blood and while child aged under 16 present in vehicle | s 47BA(1a) |
First Offence: (if expiated) $824 (as at 11 September 2023) / disqualification 3 months First Offence: (if court ordered) not less than $900 not more than $1, 300 / disqualification not less than 6 months Second Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months Third Offence: not less than $1,500 not more than $2,200 / disqualification not less than 2 years Subsequent Offence: not less than $1,500 not more than $2,200 / disqualification not less than 3 years |
| Fail to submit to an alcotest or breath analysis | s 47E(3) |
First Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months but if trifling disqualification not less than 1 month Subsequent Offence: not less than $1,900 not more than $2,900 / disqualification not less than 3 years |
| Fail to submit to an alcotest or breath analysis where child aged under 16 present | s 47E(3a) |
First Offence: not less than $1,100 not more than $1,600 / disqualification not less than 12 months but if trifling disqualification not less than 1 month Subsequent Offence: not less than $1,900 not more than $2,900 / disqualification not less than 3 years |
| Fail to submit or refusal to submit to drug screening test, oral fluid analysis or blood test | s 47EAA (9) and (16) |
First offence: not less than $900 not more than $1,300 / disqualification of not less than 12 months Subsequent Offence: not less than $1,500 not more than $2,200 / disqualification of not less than 3 years |
| Fail to submit or refuse to submit to drug screening test, oral fluid analysis or blood test while child aged under 16 present | s 47EAA (9a) and (16) |
First Offence: not less than $900 not more than $1,300 / disqualification of not less than 12 months Subsequent Offence: not less than $1,500 not more than $2,200 / disqualification of not less than 3 years |
| Refuse compulsory blood test | 47I(14) and (14a) |
First Offence: not less than $1,100 not more than $1,600/ disqualification of not less than 12 months Subsequent Offence: not less than $1,900 not more than $2,900/ disqualification of not less than 3 years |
| Refuse compulsory blood test where child aged under 16 was present in vehicle | 47I(7) and (14a) |
First Offence: not less than $1,100 not more than $1,600/ disqualification of not less than 12 months Subsequent Offence: not less than $1,900 not more than $2,900/ disqualification of not less than 3 years |
| Fail to stop and give particulars at scene of crash | Rule 287 | $2,500 [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 67] |
| Cause death by dangerous driving (where a motor vehicle was used in the commission the offence) | s 19A(1) |
Basic Offence (first offence): 15 years / disqualification for at least 10 years Aggravated or any Subsequent Offence: imprisonment for life / disqualification for at least 10 years |
| Cause serious harm by dangerous driving (where a motor vehicle was used in the commission of the offence) | s 19A(3) |
Basic Offence (first offence): 15 years / disqualification for at least 10 years Aggravated or any Subsequent Offence: imprisonment for life / disqualification for at least 10 years |
| Cause harm (but not serious harm) by dangerous driving (where a motor vehicle was used in the commission of the offence) | s 19A(3) |
Basic Offence (first offence): 5 years / disqualification for at least 1 year Aggravated or any Subsequent Offence: 7 years / disqualification for at least 3 years |
Leaving accident scene after causing death by careless use of vehicle |
s 19AB(1) |
First Offence: 15 years' imprisonment / disqualification for at least 10 years Subsequent Offence: imprisonment for life / disqualification for at least 10 years |
Leaving accident scene after causing physical harm by careless use of vehicle |
s 19AB(2) |
For serious harm: First Offence: 15 years' imprisonment / disqualification for at least 10 years Subsequent Offence: imprisonment for life / disqualification for at least 10 years Not serious harm: First Offence: 5 years' imprisonment / disqualification for at least 1 year Subsequent Offence: 7 years' imprisonment / disqualification for at least 3 years |
| Cause death by careless use of vehicle | s 19ABA(1) |
Basic Offence: 5 years' imprisonment / disqualification for at least 1 year Aggravated Offence: 7 years' imprisonment / disqualification for at least 3 years |
| Cause serious harm by careless use of vehicle | s 19ABA(2) |
Basic Offence: 5 years' imprisonment / disqualification for at least 1 year Aggravated Offence: 7 years' imprisonment / disqualification for at least 3 years |
| Dangerous driving to escape police pursuit | s 19AC |
Basic Offence: 3 years' imprisonment / disqualification for at least 2 years Aggravated Offence: 5 years' imprisonment /disqualification for at least 2 years |
| Extreme speed | s 19ADA |
Basic Offence: 3 years' imprisonment / disqualification for at least 2 years (first offence) or 5 years (subsequent offence) Aggravated Offence: 5 years' imprisonment / disqualification for at least 5 years |
| Illegal use/interference motor vehicle | s 86A |
First Offence: 2 years / disqualification 12 months Subsequent Offence: not less than 3 months and not more than 4 years / disqualification for 12 months |
| Fail to provide personal details, or provide false and misleading information | s 74A(3) | $1,250 / 3 months' imprisonment |
| Fail to provide, or provide false information re identity of the driver of a motor vehicle | s 74AB(2) | $1,250 / 3 months' imprisonment |
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