Since 28 July 2014, new rules have applied to the graduated licence scheme for new drivers.

Learner’s permits and provisional licences that were held prior to 28 July 2014 are also captured by the new provisions.

Previous rules that applied prior to 28 July 2014 but are no longer in effect include:

New provisions that have applied since 28 July 2014 include:

Exemptions from night time driving and peer passenger restrictions:

An exemption from the night time driving restrictions is available for a range of purposes including employment, education/training, formal volunteer work, or to participate in sporting, artistic, scientific, charitable and/or religious activities. In each case, drivers must take the shortest practicable route between home and the activity for the exemption to apply.

An exemption from the peer passenger restriction is only available if a driver is required to carry more than one passenger aged 16 to 20 in the course of their employment.

Police and emergency service members (both paid and volunteer) are exempt from the night and peer passenger restrictions while on duty.

The onus is on the driver to prove to SAPOLat the roadside that they meet the exemption criteria. Drivers are encouraged to carry supporting documentation (e.g. a letter from their employer) whenever they are driving at night or with multiple peer passengers. For further information see the MyLicence websitewhich also contains a sample exemption form that can be downloaded for use by a P1 driver.

South Australia has a graduated licence scheme for new drivers. Under the scheme, a driver must progress through several stages of licences, each of which must be held for a minimum period of time and which are subject to conditions, before finally being eligible to obtain a full licence.

A provisional licence (comprising two categories – P1 and P2) must be held for a period of 3 years and until the driver is aged 20 years of age [Motor Vehicles Act 1959 (SA) s 81A(5)] before an unconditional or non-provisional licence can be issued.

There is a possible exemption for Aboriginal people living in remote areas such as the APY lands [see Motor Vehicles Act 1959 (SA) s 98AAG]. For more information see the On The Right Track – Aboriginal Road Safety and Driver Licensing Program.

For more information see the My Licence SA website.

Eligibility

In order to be eligible for a C class Learner's Permit an applicant must:

Practice questions for the theory exam are available on the RAA's website.

WHEN IS A PROBATIONARY LICENCE ISSUED?

Probationary licences are granted whenever a person applies for the issue of a driver’s licence following a period of disqualification which resulted in the cancellation of their licence.

A probationary licence will be issued as a result of the following disqualifications:

How will I be notified if I breach the conditions of my permit/licence?

If your permit or licence is cancelled for breaching conditions, you will receive a notice from the Registrar of Motor Vehicles cancelling the permit/ licence.

What is the penalty for breach of conditions?

If an appeal is not lodged a disqualification period of 6 months applies.

Can I appeal disqualification?

You can appeal against the cancellation to the Civil Division of the Magistrates Court nearest to where you live using a Form 5A Originating Application- Appeal Against Administrative Action – Probationary or Provisional Licence Disqualification with a supporting affidavit [Uniform Civil Rules 2020 (SA) r 244.9].

What do I have to prove to successfully appeal?

Firstly, you will need to be able to demonstrate that the loss of licence will result in 'severe and unusual' hardship to either yourself or a dependent.

Secondly, under s 81BB(4) the Crown can introduce evidence of your previous driving offences to demonstrate that you have a driving history indicating you are a safety risk to either yourself or the general public. If such evidence is introduced you must be able to show that your driving history does not prove that you pose such a risk.

What is 'severe and unusual hardship'?

A person considering an appeal must be able to demonstrate that the loss of licence will cause severe and unusual hardship to either themselves or a dependant. Suffering inconvenience will not be sufficient. To claim hardship you must show, for example, complete reliance on the licence to earn a living, an inability to travel to work or a loss of pay or a promotion opportunity.

You may be asked to prove the hardship and should, for example, take a letter from your employer explaining the consequences of losing the licence. Where there is an inability to get to work, the employer should explain that there is no flexibility in starting or finishing times, and you should obtain public transport timetables that demonstrate that it is impossible to get to work at the necessary times. If you intend claiming a loss or reduction in income you should, in addition to an employer's letter, consider preparing a budget showing the financial hardship resulting from losing the licence.

Can I drive while waiting for the appeal to be heard?

If an appeal is lodged before the cancellation of the licence takes effect, you can continue to drive until the appeal is heard. If you surrender your licence before the appeal is lodged, you cannot drive. However, once the appeal is lodged, you can drive again until the appeal is heard as the disqualification is suspended until the appeal is either decided or withdrawn.

Will I be subjected to a curfew?

No. The serious disqualification offence curfew is no longer imposed for drivers disqualified after 28 July 2014 and will cease to apply to drivers affected by these conditions as of 28 July 2014.

Can learner drivers appeal disqualification?

Drivers disqualified while holding a Learner's Permit cannot appeal.

Is there a limit to how many appeals I can make?

If you have appealed successfully you cannot appeal again within 5 years of the date of the appeal hearing. If you breach your conditions again, it is important to seek advice as soon as practicable after the offence is committed.

*Note: If, as a result of an administrative error, a notice of disqualification is not given to a person by the Registrar within 12 months, then the Registrar can not give the notice of disqualification. Note, however, that the Registrar can satisfy the requirement to give the person notice of the disqualification if they do so by sending it by post, even if the person does not then take the next required steps of acknowledging receipt of the notice in person [see Motor Vehicles Act 1959 (SA) ss 94(1) and 94(2)].

Provisional licence holders who have been issued with a notice of disqualification can choose to enter a Safer Driver Agreement instead of serving the 6 month disqualification period [Motor Vehicles Act 1959 (SA) s 81BA]. The agreement will apply for the duration of the provisional licence.

A provisional licence holder will only be eligible to enter into a Safer Driver Agreement if the following conditions are satisfied:

Effect of Safer Driver Agreement

With the removal of the licence regression scheme, disqualified drivers will return to the licence they were on when they committed the offence, rather than the previous stage. For example, if a driver on a P1 licence commits a breach of conditions resulting in disqualification and enters into a Safer Driver Agreement, he/she will be able to apply for a P1 licence rather than going back to a Learner’s Permit.

If a driver subsequently breaches their licence conditions or accumulates 4 or more demerit points again they will be disqualified for a period of 12 months. The disqualification period must be served as there is no provision for an appeal to the Magistrates Court [Motor Vehicles Act 1959 (SA) s 81BB(2)].

Can I drive on my interstate licence in South Australia?

Interstate licence holders can drive on their interstate licence for a period of up to 3 months before having to apply for a South Australian licence.

Can I drive on my overseas licence in South Australia?

Foreign licence holders who are permanent residents at the time of their arrival in Australia can use their foreign licence for a period of up to 3 months before being required to apply for a South Australian licence.

Temporary residents and tourists can drive on their foreign drivers licence for the duration of their stay.

If I am disqualified interstate or overseas can I drive on my licence?

Interstate and foreign licence holders are restricted from driving if they are disqualified (whether interstate or overseas) and can be prohibited from driving if they are determined to be unsuitable to drive in South Australia or are impaired due to permanent or long-term injury or illness.

The Harbors and Navigation Act 1993 (SA) prescribes that any person who operates a vessel that is fitted with an engine, or any other vessel so prescribed by regulation, must hold:

Failure to adhere to the above requirements is an offence punishable by a fine of up to $5,000 or an expiation fee of $315 [s 47(3)].

Recreational vessels must also be registered to be used on any South Australian waterway [s 55].

A person who holds an interstate boat operator's licence may operate a registered recreational vessel in South Australia for a period of up to 90 days. Beyond that time, they must apply for a South Australian boat operator's licence [Harbors and Navigation Regulations 2023 (SA) reg 70(c)].

Specific rules apply for children aged under 16 years, for the use of kayaks and canoes fitted with electronic motors, and for houseboats or boats for hire. For more information see the Service SA website on boat licences.

To apply for a boat licence, a person must be at least 16 years of age, must disclose any medical conditions, and must pass a written exam. Exams are conducted by Service SA. For more information on applying for a boat licence, see the Service SA South Australian Recreational Boating Safety Handbook.

There are a number of offences that apply if a vessel is unsafe, is operated without due care or in a dangerous manner, or is operated by someone so under the influence of drugs and alcohol as to be incapable of exercising effective control of the vessel.

This section covers the issuing of motor bike learner's permits, the conditions attached to them, and progression through the graduated licence scheme applying to motor bike licences.

All references in this section are to the Motor Vehicles Act 1959 (SA) unless stated otherwise.

When will I be disqualified for having too many demerit points?

If you receive 12 or more demerit points within a three year period, the Registrar of Motor Vehicles will suspend you for:

[Motor Vehicles Act 1959 (SA) s 98BC]

If you commit an offence which incurs demerit points, the offence date and number of points will be recorded on your licensing record. If your licensing record shows the incursion of 12 or more demerit points over a three year period, you will be liable for disqualification.

How do I know how many demerit points I have incurred?

You can check your demerit points by contacting Service SA either by phone (13 10 84) or in person. You can also check your points online if you have a mySA GOV account.

When you have incurred 6 demerit points, you should receive a written notice, effectively a warning, from the Registrar of Motor Vehicles advising you that you have incurred 6 points.

How will I know I am disqualified?

The disqualification notice is served in the first instance by ordinary post to your last known address. Once received you are required to the attend personally at the Department for Planning, Transport and Infrastructure to acknowledge receipt of the notice and pay the Registrar an administration fee.

What will happen if I don’t get the notice or fail to respond to it?

If you fail to comply with the notice another notice will be issued personally by a process server, the cost of which will be met by you.

If personal service is unsuccessful you will be prohibited from transactions with the Department for Planning, Transport and Infrastructure until you provide acknowledgement of receipt of the notice and pay the administration and service fees.

When does the disqualification begin?

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If you are 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.

What happens to the points once I am disqualified?

All of the demerit points that led to the disqualification will be erased once the disqualification takes effect. Also erased will be any demerit points resulting from other offences committed prior to the disqualification, whether or not you had been convicted of, or expiated, those offences when the disqualification took effect.

What happens if I accumulate further points after receiving notice of disqualification but before I commence the disqualification?

If you accumulate further points after a notice has been served advising of your disqualification but before you actually commence the disqualification period, these points will not be erased. If in the ensuing three years from that date, you incur 12 or more demerit points, you will be liable to disqualification.

What happens if I accumulate further points after serving the disqualification period?

If, after the disqualification period, you commit an offence which incurs demerit points, the date of the offence and the points will be recorded on your licensing record. If in the ensuing three years from that date you incur 12 or more points, you will be liable for disqualification.

Is there any way I can keep my licence if I have exceeded the maximum demerit points?

You can keep your licence by choosing to take a ‘good behaviour’ option instead of serving a demerit points disqualification. The good behaviour option is offered with the demerit points disqualification notice. Instead of surrendering your licence you make a formal application to accept a 12 month good behaviour option. This must be done within 21 days of receiving the notice [Motor Vehicles Act 1959 (SA) s 98BE(2)].

What is the effect of the good behaviour option?

By taking the good behaviour option, you can continue to drive but your licence will be subject to the condition that you do not incur 2 or more demerit points during the 12 month good behaviour period. If you incur 2 or more points you will be disqualified for double the original disqualification period [see Motor Vehicles Act 1959 (SA) s 98BE (2a)].

For example if you incurred 14 points, your licence would be disqualified for 3 months. By accepting a good behaviour option, you would face 6 months disqualification if you incurred 2 or more demerit points during the 12 month period. Once the period of the conditional licence commences all the demerit points previously recorded are erased.

What if I have served a court ordered disqualification for an offence and demerit points also apply?

If you have served a court ordered disqualification period you will need to renew your licence once the disqualification period has been served. If you fail to do so this will mean that you are not eligible for the good behaviour option if demerit points also apply for the original offence.

Demerit points only apply to offences committed under the Road Traffic Act 1961 (SA) and/or regulations made under the Act, except an offence of breaching a condition imposed by a court following a successful demerit points appeal (1 point).

The table below summarises some of the more common offences that attract demerit points. References in the table are to the Road Traffic Act 1961 (SA) or the Australian Road Rules (ARR). A complete list of offences attracting demerit points is set out in schedule 4 of the Motor Vehicles Regulations 2010 (SA).

Many offences to which demerit points apply will also result in a fine/expiation fee being applicable. Schedule 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) lists the expiation fee amounts for offences contained in the Road Traffic Act 1961 (SA) (and its regulations) and the Australian Road Rules.

For a comprehensive summary of offences and the points they carry, see PD320A - Expiable Offences and Fees - Traffic on the SAPOL website.

The penalties for the offences described above are severe and are set out below. Many include mandatory licence disqualification periods.

For definitions of each of the mentioned offences, see Alcohol, Drugs and Driving.

Automatic loss of licence applies for the majority of drink driving offences. For further details see Immediate loss of licence.

Driving under the Influence (alcohol or drugs) : Road Traffic Act 1961 (SA) s 47

First Offence

A fine of not less than $1,100 and not more than $1,600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months; and 6 demerit points.

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)].

Subsequent Offence

A fine of not less than $1,900 and not more than $2,900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years; and 6 demerit points.

Driving under the Influence (alcohol or drugs) While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47(1a)

First Offence

A fine of not less than $1,100 and not more than $1,600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months; and 6 demerit points.

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)].

Subsequent Offence

A fine of not less than $1,900 and not more than $2,900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years; and 6 demerit points.

Prescribed Concentration of Alcohol: Road Traffic Act 1961 (SA) s 47B

First Offence

0.05-0.079: Expiation fee: $786 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2 as at 1 July 2022] and 4 demerit points OR $1,100 (court penalty), 4 demerit points and licence disqualification of not less than 3 months

0.08-0.149: $900-$1,300; immediate licence disqualification of not less than 6 months; plus 5 demerit points

0.15 or over: $1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Second Offence

0.05-0.079: $1,100; licence disqualification of not less than 6 months; plus 4 demerit points

0.08-0.149: $1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 5 demerit points

0.15 or over: $1,600-$2,400; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Third Offence or Subsequent Offence

0.05-0.079: $1,100; licence disqualification of not less than 9 months; plus 4 demerit points

0.08-0.149: $1,500-$2,200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Prescribed Concentration of Alcohol While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47B(1a) - only applies to offences where the Blood Alcohol Content is 0.08 or above

First Offence

0.08-0.149: $900-$1,300; immediate licence disqualification of not less than 6 months; plus 5 demerit points

0.15 or over: $1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Second Offence

0.08-0.149: $1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 5 demerit points

0.15 or over: $1,600-$2,400; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Third Offence

0.08-0.149: $1,500-$2,200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Subsequent Offence

0.08-0.149: $1,500-$2,200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Driving with Prescribed Drug: Road Traffic Act 1961 (SA) s 47BA

First Offence

If expiated: $786 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2 as at 1 July 2022],4 demerit points and licence disqualification of 3 months [see Motor Vehicles Act 1959 (SA) s 81D(2)(c)]; OR

Court penalty: $900-$1,300; 4 demerit points; licence disqualification of not less than 6 months

Second Offence

$1,100-$1,600 and 4 demerit points; licence disqualification of not less than 12 months

Third Offence

$1,500-$2,200 and 4 demerit points; licence disqualification of not less than 2 years

Subsequent Offence

$1,500-$2,200 and 4 demerit points; licence disqualification of not less than 3 years

If an instant loss of licence notice has been served under section 47IAA of the Road Traffic Act 1961 (SA) then the second offence disqualification period is 9 months, third offence disqualification period is 1 year and 9 months, and subsequent offence disqualification period is 2 year and 9 months [Motor Vehicles Act 1959 (SA) s 81D(2)(b)].

Driving With Prescribed Drug While Child Aged under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47BA(1a)

First Offence

If expiated: $786 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2 as at 1 July 2022],4 demerit points and licence disqualification of 3 months [see Motor Vehicles Act 1959 (SA) s 81D(2)(a)(c)]; OR

Court penalty: $900-$1,300; 4 demerit points; licence disqualification of not less than 6 months

Second Offence

$1,100-$1,600 and 4 demerit points; licence disqualification of not less than 12 months

Third Offence

$1,500-$2,200 and 4 demerit points; licence disqualification of not less than 2 years

Subsequent Offence

$1,500-$2,200 and 4 demerit points; licence disqualification of not less than 3 years

If an instant loss of licence notice has been served under section 47IAA of the Road Traffic Act 1961 (SA) then the second offence disqualification period is 9 months, third offence disqualification period is 1 year and 9 months, and subsequent offence disqualification period is 2 year and 9 months [Motor Vehicles Act 1959 (SA) s 81D(2)(b)].

Refuse Breath Test: Road Traffic Act 1961 (SA) s 47E

First Offence

$1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Breath Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47E(3a)

First Offence

$1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Compulsory Blood Test: Road Traffic Act 1961 (SA) s 47I

First Offence

$1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Compulsory Blood Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47I(7)

First Offence

$1,100-$1,600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,900-$2,900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Drug Test: Road Traffic Act 1961 (SA) s 47EAA

First Offence

$900-$1,300; licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,500-$2,200; licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Drug Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47EAA(9a)

First Offence

$900-$1,300; licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1,500-$2,200; licence disqualification of not less than 3 years; plus 6 demerit points

Compulsory testing after hospital admission

The police do not have the power to require a person to have a blood test. However, a doctor must take a blood test from anyone aged apparently 10 years or more and who is admitted to hospital after a road accident unless there is a good medical reason why the blood sample should not be taken [Road Traffic Act 1961 (SA) s 47I]. The provision only applies to a hospital declared under Schedule 2 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).

Similarly, a doctor must take a blood test in the circumstances prescribed above and where a child aged under 16 years was present in the vehicle at the time of the accident [see Road Traffic Act 1961 (SA) s 47I(7)]. Specific penalties apply if a person refuses to submit to a blood test in these circumstances.

Refusing a compulsory blood test

The blood test must be done as soon as possible after the person is admitted to hospital and within eight hours of the motor vehicle accident. It is an offence to refuse the blood test to be taken without a good medical reason [Road Traffic Act 1961 (SA) s 47I]. Penalties apply for refusing to submit to a compulsory blood test, including a fine and a mandatory licence disqualification - see Road Traffic Act 1961 (SA) ss 47I(7), 47I(14) and 47I(14a). Police have the power to issue an immediate licence disqualification for these offences [see Road Traffic Act 1961 (SA) s 47IAA].

Procedure for blood tests

The blood sample is divided into two equal portions, one of which is given to the police to be analysed and the person is given a notice advising that the other sample may be collected and separately analysed as a check against the police analysis. If the person is not given the opportunity of an independent analysis, the police analysis cannot be given in evidence. The blood sample is to be kept for collection for a period of 12 months from the date the sample was taken. If independent analysis of the sample is required it is recommended that this be arranged as soon as practicable using one of the independent pathology groups listed under Pathology Laboratories in the Yellow Pages.

It is not possible to challenge the results of a breath test taken within 3 hours of driving without a blood test. There is a presumption that the breath test blood alcohol concentration ('BAC') result is the BAC of the person for the 3 hours prior to the breath test [Road Traffic Act 1961 (SA) s 47K(1)]. This presumption can be rebutted by proof to the contrary.

Legal advice should be sought if the breath test is taken more than 3 hours after driving, especially if the driver has consumed alcohol after driving but before the breath test is taken. It may be possible to challenge the results of the breath test relied on for a DUI or PCA offence where [s 47GA]:

It will be a question of whether the driver is believed that any alcohol was consumed after the driving and what effect that alcohol had on the driver's blood alcohol level. It is possible that the court may find the driver guilty of a lesser offence (instead of an alcohol level of 0.15 BAC the court may decide the reading should be 0.09 BAC or may find the driver not guilty).

Prior to 12 December 2022, time limit applicable under section 47GA was from the time of the driving until the breath test was taken. It is now only available from 3 hours after driving or a driving incident until the breath test is taken.

As a result of the 2022 change, it is best practice that drivers do not consume any alcohol within 3 hours of any known driving incident, such as an accident, in case they are required to submit to a breath test during that time - the presumption means it may be impossible to have subsequent alcohol consumption taken into account.

Elements of the offence

A person who drives, or who attempts to drive, a vehicle while so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle is guilty of the offence of driving under the influence [Road Traffic Act 1961 (SA) s 47].

Can be charged with DUI even if under legal limit

The charge of driving under the influence is not the same as driving with the prescribed concentration of alcohol and it is possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. It is not unknown for people to be convicted of driving under the influence with a blood alcohol level of 0.04 of alcohol per 100mls of blood or even less. 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. For the penalties, see alcohol and drug penalties.

Evidence of DUI

The prosecution may attempt to prove charges of driving under the influence by bringing evidence of the manner in which the vehicle was being driven and of signs of intoxication (including observations by the police and other witnesses), the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes and slow or slurred speech.

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 where a child aged under 16 years is present in the vehicle, is guilty of an offence [Road Traffic Act 1961 (SA) s 47(1a)].  

The same penalties apply (being a fine, demerit points and licence disqualification) as if the person was charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

Additionally, where a person is convicted of driving under the influence while a child aged under 16 is present in the vehicle, they will be required to undergo a drug or alcohol dependency assessment prior to reapplying for their licence at the end of the disqualification period [Motor Vehicles Act 1959 (SA) ss 79B(1) and 79B(2)]. See: Drug and Alcohol Assessments.

Where a person has been disqualified for certain drink and drug driving offences, and they seek to re-apply for their licence at the conclusion of their disqualification period, they may be required to undergo a drug or alcohol dependency assessment prior to their licence being re-issued.

An applicant will be required to undergo an assessment where the offence for which they were disqualified for was:

In these instances, prior to issuing a licence the Registrar of Motor Vehicles must direct the applicant to submit to an alcohol dependency assessment to show they are not dependent on alcohol [see Motor Vehicles Act 1959 (SA) s 79B(1)]. The Registrar can issue the licence without requiring the applicant to submit to an assessment, if they are satisfied that the applicant has successfully completed an alcohol dependency treatment program not more than 60 days before applying for the licence [see Motor Vehicles Act 1959 (SA) s 79B(1)].

Similar provisions apply to certain drug driving offences. An applicant for a licence will be required to undergo a drug dependency assessment before being issued a licence, where the licence or permit was cancelled under section 81D(2)(a) or where the offence for which they were disqualified for was:

For these offences, prior to issuing a licence the Registrar of Motor Vehicles must direct the applicant to submit to a drug dependency assessment to show they are not dependant on drugs [see Motor Vehicles Act 1959 (SA) s 79B(2)]. The Registrar may issue the licence without requiring the person to submit to an assessment, if they are satisfied that the applicant has successfully completed a drug dependency treatment program not more than 60 days before applying for the licence [see 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 produced from that assessment they are deemed to be dependant on drugs or alcohol, the Registrar must refuse to issue them a licence until they are satisfied the person is no longer drug or alcohol dependant [see 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 issue the licence to the applicant. The applicant is liable for the cost of the drug or alcohol dependency assessment and any participation in a treatment program.

Roadside drug screening tests

Since 1 July 2006, police have had the power to conduct random roadside drug screening tests to detect drivers under the influence of certain illicit drugs.

Testing is for:

Driving with prescribed drug

It is an offence for a person to drive with these drugs in his or her oral fluid or blood — this includes a passenger acting as ‘qualified supervising driver’ for a learner driver. For details of penalties see Alcohol and drug penalties.

Any driver (or qualified supervising driver) may be required to undergo a random roadside drug screening test and tests can be conducted anywhere in South Australia.

Driving with prescribed drug where child aged under 16 present in vehicle

It is an offence for a person to drive with a prescribed drug in their oral fluid or blood, and while a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47BA(1a)].

The same penalties for this offence apply as if the person had been charged with driving with a prescribed drug in oral fluid or blood pursuant to section 47BA(1) of the Road Traffic Act 1961 (SA).

A person convicted of the offence of driving with a prescribed drug in oral fluid or blood will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [see Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Driving under the influence (DUI)

It is an offence for a person to drive while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle [Road Traffic Act 1961 (SA) s 47(1)]. For the purpose of this offence, you may be deemed to be incapable of exercising effective control if your physical and/or mental capabilities are appreciably impaired. Laboratory testing showing the presence of a drug in your system may form part of the evidence for this offence, but it is not essential.

Driving under the influence (DUI) while child aged under 16 present in vehicle

It is an offence for a person to drive while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle, and while a child aged under 16 years is present in the vehicle [Road Traffic Act 1961 (SA) s 47(1a)].

The same penalties apply as if a person had been charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

A person convicted of this offence will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Is there a minimum amount of drugs that can be present without an offence being committed?

Unlike drink driving, where a prescribed concentration of alcohol must be present for an offence to have been committed, the presence of any amount of the drugs tested will constitute an offence of driving with prescribed drug in your oral fluid or blood. THC remains detectable for several hours after the drug has been taken and methylamphetamine and MDMA for a period of 24 hours, or longer, depending on the person.

Can I refuse a drug test?

Where a person has been required to submit to an alcotest or breath analysis [Road Traffic Act 1961 (SA) s 47E], they may also be required to submit to a drug screening test or oral fluid analysis [Road Traffic Act 1961 (SA) ss 47EAA(1) and (2)]. It is an offence to refuse, or to fail to comply with, a request for a drug screening test, oral fluid analysis or blood test. It is also an offence to refuse, or fail to comply with, a request for a drug screening test, oral fluid analysis or blood test where a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47EAA(9a)]. For details of penalties see Alcohol and drug penalties.

What happens with the samples taken?

All samples taken must be destroyed if there is no prosecution of any offence or at the conclusion of court proceedings. Samples taken cannot be used in DNA testing nor can they be used in relation to offences other than driving offences.

Can random saliva testing be used to detect other drugs?

Random saliva testing (drug screening testing) will only be used for the detection of THC, methylamphetamine and MDMA. However, drivers impaired by other drugs (whether prescription or illicit) can expect to be charged with the existing offence of driving under the influence of alcohol or drugs.

Who can conduct drug screening tests?

All uniformed police officers can conduct drug screening tests.

How will random drug screening tests be conducted?

On being stopped by police, drivers will first be required to complete an alcohol test.

Drivers may then be requested to provide a saliva sample by placing a swab in their mouth or touching it with their tongue until a sample is collected. This is referred to as a drug screening test.

The initial saliva test can be conducted at the roadside without a driver having to leave his/her vehicle. The sample will be screened at this stage with results being available in approximately 5 minutes.

Where a positive result is recorded from the initial drug screening test, an oral fluid sample will then be collected and sent to Forensic SA for further laboratory analysis.

Can I continue to drive if I have tested positive in a drug screening test?

The police have the power to impose immediate licence disqualification or suspension when they reasonably believe that a person has committed an offence against section 47BA(1) or (1a) (drug driving and drug driving with child under 16 years in motor vehicle) [Road Traffic Act 1961 (SA) s 47IAA].

In any event, a driver who tests positive for THC, methylamphetamine or MDMA through an initial drug screening test will be advised by police not to drive until the drug is no longer detectable in their system. For THC this will be up to 4 hours and for methylamphetamine and MDMA 24 hours.

Whenever a police officer believes a driver to be unfit to drive due to alcohol or drug consumption they have the power to require the driver to surrender their keys and immoblise the vehicle [see Road Traffic Act 1961 (SA) s 40K(4)].

When will further action be taken?

In the event a driver records positive results to drug testing no further action can be taken until the results of the laboratory analysis are known. Before any expiation notice can be issued or charge can be laid the presence of either THC or methylamphetamine must be confirmed by the laboratory analysis. This process will take several weeks but where the presence of these drugs is established the driver will then be fined or charged accordingly.

What happens if I receive an expiation notice?

For a first offence of driving with prescribed drug in oral fluid or blood, and after the presence of the drug in oral fluid or blood has been confirmed by laboratory analysis, you will receive an expiation notice.

You have the ability to either pay the expiation notice, seek a review of the expiation notice, or elect to be prosecuted, see: Expiation Fees and Fines.

If you pay the expiation notice (and it is a first offence, where an instant loss of licence notice has been issued), you will then receive notification from the Registrar of Motor Vehicles that you are disqualified for the period outlined in the instant loss of licence notice [s 139BD of the Motor Vehicles Act 1959 (SA) for the process of service and commencement of notices of disqualification]. If no instant loss of licence notice was given, then for a first offence the disqualification period is 3 months from notification from the Registrar of Motor Vehicles.

If an instant loss of licence notice has been served (under s 47IAA of the Road Traffic Act 1961 (SA) then second offence disqualification period is 9 months, third offence disqualification period is 1 year and 9 months, and subsequent offence disqualification period is 2 year and 9 months [s 81D(2)(b) MVA]. If no notice was issued, the disqualification periods are second offence 12 months, third offence 2 years, subsequent offence 3 years [s 81D(2)(c)].

If you elect to be prosecuted instead of paying the expiation notice, the potential court ordered disqualification period increases to 6 months [Road Traffic Act 1961 (SA) s 47BA(4)(a)(ii)].

How will I know I am disqualified?

The disqualification notice is served in the first instance by ordinary post to your last known address. You must acknowledge receipt of the disqualification notice and pay the fee. For more information, see Disqualification notice on the SA Gov website.

What will happen if I don’t get the notice or fail to respond to it?

If you fail to comply with the notice another notice will be issued personally by a process server, the cost of which will be met by you.

If personal service is unsuccessful you will be prohibited from transactions with the Department for Infrastructure and Transport until you provide acknowledgement of receipt of the notice and pay the administration and service fees.

When does the disqualification begin?

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If you are already disqualified for another reason (for example, as part of a penalty imposed by a court), the drug driving disqualification begins once the other period of disqualification ends.

What if I receive a summons?

If you receive a summons to attend court, then the matter will be heard in court and you will have the opportunity to plead guilty or not guilty to the charge. If convicted, the court will determine and impose a penalty, including a disqualification period (if appropriate, and in line with any statutory requirements). It is recommended you seek legal advice prior to any court appearance.

Offences attracting immediate loss of licence

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 commencement for 48 hours (or 28 days for section 47BA(1) or (1a) offence) [s 47IAA(12)(a)].

A summons to attend court at a later date would be issued.

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 Extreme speed and Excessive speed.

Trifling offences

Not only are the above penalties severe but the court only 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 the offence is trifling.

When deciding whether or not an offence is trifling, the court takes into account all the surrounding circumstances of the driving but a person's need for a licence is not relevant to this issue.

The factors considered by the courts include the extent of impairment of faculties, the locality, the nature and extent of the driving, the reason for the offending behaviour 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. It is extremely rare for an offence to be categorised as trifling.

Examples where an offence was not considered trifling

Where an alcohol reading of just within the prescribed limit i.e. 0.08 is recorded. If there are no other circumstances to make the situation unusual or atypical this is not a trifling offence (Boyland v Dunsmore(1988) 141 L.S.J.S. 186).

Where the driver did not realise they were over the prescribed limit i.e. the offending was 'inadvertent' because it was not intended. The courts have held that since most people do not know their actual blood alcohol level when they make the decision to drive this cannot be either rare or exceptional (see Przybtniak v Police[1998] SASC 6581).

Where a driver drove a short distance (400 metres and back) to a service station in the middle of the night to buy milk for his sick children. The fact that the distance travelled was a very short one was rejected by the court as a factor making the offending trifling. Similarly the argument that the offending was prompted by humanitarian reasons was not accepted by the courts. For offending to be classified as trifling on humanitarian grounds there must be a compelling and urgent need with no other courses of action available (see Police v Mutton [2006] SASC 328).

Minimum disqualification period must be imposed regardless of circumstances

When determining the penalty, courts cannot consider the person's need for their licence. In Janz v Woolven (1990), the Full Bench of the Supreme Court held that the minimum licence disqualification must be imposed even where a licence is needed for work and the loss of the licence will result in great personal or financial hardship. Hence most defendants lose their licence for at least the minimum period, and it is not possible to retain one's licence even on a restricted basis, eg during working hours, even if the defendant will lose his/her employment as a result. When the disqualification period is over, a person must hold a provisional licence for at least one year.

Alcohol interlock device

Since 1 May 2009 the mandatory alcohol interlock scheme has applied.

Drivers who commit serious drink drive offences must have an alcohol interlock device fitted to their vehicle for a time equal to their disqualification. The mandatory alcohol interlock scheme applies after the disqualification period has been served.

The following offences are classified as serious drink driving offences for which the mandatory interlock scheme applies:

[Motor Vehicles Act 1959 (SA) s 81E]

In determining whether an offence of driving with a blood alcohol reading above 0.08 (category 2 offence) is a second offence for the purposes of assessing whether the mandatory interlock scheme applies, any previous drink driving offencs (other than category 1 offences) will be taken into account but only if the previous offence was committed within the 5 year period immediately preceding the date of the category 2 offence.

The cost of fitting of the alcohol interlock device will be the responsibility of the driver but a concession scheme will be available to eligible concession card holders.

Conditions of mandatory interlock scheme

[Motor Vehicles Act 1959 (SA) s 81F].

Drivers required to enter into the mandatory interlock scheme are exempt from the requirement to undergo a drug or alcohol dependency assessment pursuant to section 79B of the Motor Vehicles Act 1959 (SA).

Offences

It is an offence to contravene any of the conditions of the mandatory interlock scheme [s 81H].

Maximum penalty: $2500

It is an offence to assist the holder of a licence subject to the mandatory interlock scheme to contravene the conditions [s 81H].

Maximum penalty: $2500

Driving without a licence having committed a serious drink drive offence [s 74(2A)].

Maximum penalty: $5000 or 1 year imprisonment

See further: the Department of Planning, Transport and Infrastructure's webpage and brochure on the Mandantory Alcohol Interlock Scheme.

Must hold probationary licence

Whether a person serves the full disqualification period or resumes driving using an alcohol interlock device, the person must hold a probationary licence for at least one year (see probationary licence).

Insurance exclusions

The fact that a driver has been convicted of driving with prescribed alcohol or drugs cannot be taken to show that they were under the influence and incapable of exercising effective control of the motor vehicle at the time and any insurance policy that attempts to limit or exclude liability on the basis of such a conviction is void [Road Traffic Act 1961 (SA) s 47C and Wood v Zurich Aust Insurance Ltd [1997] SADC 3604, see also Insurance. Most insurance policies covering damage arising from motor vehicle accidents do, however, exclude the liability of the insurer if the driver was under the influence of alcohol or drugs at the time of the accident.

The South Australian compulory third party insurance policy currently requires the driver to refrain from driving while so much under the influence of alcohol or drugs that they are incapable of exercising effective control of the vehicle and to refrain from driving while there is present in his or her blood a concentration of .10 grams or more of alcohol in 100 mL of their blood. See the policy on the CTP Insurance Regulator's website here.

Elements of the offence

A person who drives, or attempts to drive, a motor vehicle while there is more than the 'prescribed concentration' of alcohol in the person's blood is guilty of the offence of exceed prescribed concentration of alcohol [Road Traffic Act 1961 (SA) s 47B].

Prescribed concentration of alcohol

The prescribed concentration of alcohol (PCA) for holders of an unconditional licence is 0.05 blood alcohol concentration (BCA). For unlicensed drivers or drivers of “prescribed vehicles”, the PCA is zero [Road Traffic Act 1961 (SA) s 47A].

Vehicles prescribed for this purpose include:

Penalties

For the penalties, see alcohol and drug penalties.

Learner, provisional and probationary drivers

Learner, provisional and probationary drivers also must drive with a zero blood alcohol concentration. However, it is only a breach of their conditions if they drive with a blood alcohol level greater than zero but less than 0.05. If they drive with a blood alcohol level greater than 0.05 they may be charged with both breaching their conditions and an offence of driving with the prescribed concentration of alcohol see driver's licences.

A person will be guilty of an offence if they drive, or attempt to drive, a motor vehicle with more than the 'prescribed concentration of alcohol' (PCA)in their blood, and while a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47B(1a)].

For this offence, the 'prescribed concentration of alcohol' is a level of 0.08 or above (category 2 or above).

A person charged with a PCA offence where a child aged under 16 years is also present in the vehicle is subject to the same penalties as if they were charged with the equivalent PCA offence pursuant to section 47B(1) of the Road Traffic Act 1961 (SA).

Prior to reapplying for their licence at the end of the disqualification period, they will also be required to undergo an alcohol dependency assessment to determine whether they are dependant on alcohol [see Motor Vehicles Act 1959 (SA) s 79B(1)]. See: Drug and Alcohol Dependency Assessment.

Automatic licence disqualification

It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis when directed to do so by police [Road Traffic Act 1961 (SA) ss 47E and 47E(3a)]. Refusing a breath test results in an automatic licence disqualification. For further information on penalties see alcohol and drug penalties.

Police powers to test drivers

The police have expansive powers with which to stop and breath test drivers. The police may stop and breath test any person who they reasonably believe has:

In addition to these powers the police may stop and breath test any person who they reasonably believe while driving has:

Note: Any request to submit to an alcotest or breath analysis cannot be commenced more than 8 hours after the conduct of the person giving grounds for the request has occurred.

Random breath testing stations

The police may also stop and test any driver of a motor vehicle that approaches a random breath testing station. Police powers to set up breath testing stations have been significantly expanded and a breath testing station can be established at any time an in the vicinity of any road.

Alcotesting

A person being tested will generally, particularly at a random breath testing station, be first required to blow into an alcotest - a small hand held unit that drivers usually blow into without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 (SA) [s 47H].

Breath analysis machine

Alternatively, or if an alcotest shows that the prescribed concentration of alcohol may be present, the driver can be required to blow into a breath analysis machine — a more sophisticated apparatus that is carried in the boot of most police vehicles. The result indicated by the breath analysis is presumed to have been the person's blood alcohol level for the 3 hours immediately before the test. 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.

Drivers must be advised of right to blood test

The courts have held that random breath testing procedures must be strictly complied with in order to support a prosecution for an offence of driving with a prescribed concentration of alcohol. Drivers charged with this offence should seek legal advice if they were not adequately advised of their rights to a blood test.

Refuse breath test when child aged under 16 years present in vehicle

It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis test where a person has driven, or attempted to drive, a motor vehicle and a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47E(3a)]. Refusing a breath test in these circumstances results in an automatic licence disqualification, and the driver will be required to undergo an alcohol dependency assessment prior to reapplying for their licence [Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)].

As a vehicle is defined in section 5 of the Road Traffic Act 1961 (SA) to include a bicycle, persons riding a bicycle can be charged with certain offences under this Act if the offence applies to vehicles.

A person riding a bicycle can be charged with 'driving' a bicycle or attempting to put a bicycle in motion while so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the bicycle [Road Traffic Act 1961 (SA) s 47(1)].

Maximum penalty: a fine of $500, and demerit points may also apply [s 47(1)(b)].

However some alcohol and drug driving offences only apply to motor vehicles- see section 5 of the Road Traffic Act 1961 (SA) for the definition of motor vehicle.

For more information on cyclist road rules and safety, see the Department of Planning, Transport and Infrastructure's booklet Cycling and the Law.

There are a number of situations in relation to driving in which it is an offence not to truthfully answer questions asked by a police officer.

Must assist in identifying driver of a vehicle

A person must answer any question that would help to identify the driver of a motor vehicle [Motor Vehicles Act 1959 (SA) s 137(b)].

Maximum penalty: $750

Police questions about drivers etc.

The police may ask a person questions about the identification of any person who was driving a vehicle on a particular occasion or time, or about the owner of a vehicle at a particular time [Summary Offences Act 1953 (SA) s 74AB(1)].

A person who refuses or fails to answer these questions without reasonable excuse, or gives an answer that is false or misleading, is guilty of an offence [Summary Offences Act 1953 (SA) s 74AB(2)].

Maximum penalty: $1,250 or imprisonment for 3 months

When asking questions under s74AB(1) the police officer must comply with a request to identify themselves by either producing their police identification or stating (orally or in writing) their surname, rank and identification number.

Producing licence when requested

A driver must produce their licence when requested by a police officer, either immediately or to a specified police station within 48 hours [Motor Vehicles Act 1959 (SA) s 96].

Direction to give name and other personal details

Any person who is involved in road transport at the time they are approached by police, including a driver, a vehicle owner or someone in charge of a vehicle, must, on request, provide police with their full name, date of birth, the address where they are living, their usual address and their business address [Road Traffic Act 1961(SA) s 40V].

Elements of offence

It is an offence to drive without due care or attention or without reasonable consideration for others [Road Traffic Act 1961 (SA) s 45].

Negligence

A person who has been in any way negligent in the driving of a motor vehicle may be charged with this offence and it is often used in addition to another offence, where an admission has been made, or it appears the driver was careless. This is often the case where a driver has had a collision that is solely their fault (most notably running into a stationary object like a street sign or a parked car). If a driver pleads guilty to the other offence with which they have been charged it is likely that the police will agree to withdrawing the careless driving offence.

Penalties

For a basic (non-aggravated) offence — a fine of up to $2500 and 3 demerit points [see Road Traffic Act 1961 (SA) s 164A and Motor Vehicles Regulations 2010 (SA) Sch 4 pt 1(1)].

For an aggravated offence — a maximum of 12 months imprisonment and at least 6 months disqualification [Road Traffic Act 1961 (SA) s 45]. 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:

Elements of the offence

Any person who drives a vehicle in a negligent or reckless manner, at high speed, or in a manner that is dangerous to any person and as a result of that behaviour causes death or harm to another is guilty of an offence [Criminal Law Consolidation Act 1935 (SA) s 19A].

Penalties

Penalties for this offence are significant and even a first offence can carry a maximum sentence of 15 years imprisonment. If the offence is found to be an aggravated offence it can carry a term of life imprisonment. The penalty for this offence will also involve a licence disqualification of at least 10 years, or possibly longer, if a court orders.

Even where a death or serious harm is not caused to any person it is possible to receive a penalty of up to 5 years imprisonment and a disqualification of at least 1 year.

Pursuant to s 5AA, an offence against s 19A is aggravated if the offender:

Instant Loss of Licence

If a driver is formally charged with an offence against s 19A involving the use of a motor vehicle (via the laying of an Information in court), the Commissioner of Police must as soon as reasonably practicable 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 also has the ability to issue an ILOL notice where they reasonably believe that a driver has committed an offence against s 19A involving the use of a motor vehicle [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)].

From 1 January 2024, it is an offence to drive a vehicle without due care or attention or without reasonable consideration for any person if that conduct causes the death of or serious harm to another person [Criminal Law Consolidation Act 1935 (SA) s 19ABA].

Where the offending involved the use of a motor vehicle , the maximum penalty is:

Pursuant to s 5AA(1ab), causing death or serious harm by careless use of a vehicle will be aggravated if the offender

Instant Loss of Licence

If a police officer reasonably believes that a driver has committed an offence against s 19ABA, they may issue an instant loss of licence notice (ILOL notice) [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)].

If a person is charged with an offence against s 19ABA, the Commissioner of Police must give them an ILOL notice [s 19AE].

A driver who receives an ILOL notice may apply to the Magistrates Court to have the ILOL notice removed [s 19AE(6), s 19AF(6)]. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the driver does not pose a substantial risk to the public if an order is made.

Road rules for cyclists

Generally, as a bicycle is defined as a vehicle [Road Traffic Act 1961(SA) s 5], cyclists are subject to the same basic road rules as drivers of motor vehicles but with some important additions, including that they must wear an approved bicycle helmet [Australian Road Rules rule 256]. If it is safe, cyclists are permitted to pass vehicles on the left in the lane unless the vehicle is indicating and turning left [Australian Road Rules rule 141]. There are also specific requirements when riding at night [Australian Road Rules rule 259].

Cyclists must keep as close as reasonably practicable to the left-hand side of the road or bikeway except when making, or about to make, a right hand turn or where the road is divided into lanes [Australian Road Rules rule 129]. Changes to the Australian Road Rules brought in on 30 March 2024 clarify that cyclists are not required to keep as far left as possible when approaching, entering or riding in a roundabout [Australian Road Rules rules 111, 129].

Just as drivers must keep their hands on a steering wheel, cyclists must keep at least one hand on the handlebars at all times [Australian Road Rules rule 245] and they must signal when turning right [Australian Road Rules rule 48].

Bicycles are exempt from requirements to be registered or insured, as they are not motor vehicles pursuant to the Motor Vehicles Act 1959 (SA) or the Road Traffic Act 1961 (SA).

Riding abreast

Cyclists can ride two abreast on a carriageway not more than 1.5 metres apart, but any more than two riding abreast is an offence [Australian Road Rules rule 151].

Riding on footpaths

As of 25 October 2015 cyclists of all ages are allowed to ride on footpaths [Australian Road Rules rule 250].

Shared facilities for both pedestrians and cyclists called "shared paths" are designated by signs or line marking. Cyclists riding a footpath or shared path must keep left unless it is impractical to do so [Australian Road Rules rule 250(2)].

Carrying passengers

Cyclists must not carry more people on the bicycle than it is designed to carry [Australian Road Rules rule 246]. For example, a bicycle with a child's seat attached is designed to carry two people (provided one is a child in the child seat). The old practice of "donkeying" (carrying another person on the bike, such as on the handle bars) is also against the law.

Other restrictions

Cyclists are also subject to other restrictions. It is illegal to hold on to a moving vehicle [Australian Road Rules rule 254] or to ride for more than 200 metres within two metres of a motor vehicle [Australian Road Rules rule 255].

Cyclists can also be charged for riding under the influence of alcohol or drugs and face a fine up to $500 if convicted [Road Traffic Act 1961 (SA) s 47, see Alcohol, drugs and riding a bicycle].

For general penalties applying to cyclists, see PD320A - Expiable Offences and Fees on the SAPOL website.

Power-assisted bicycles or e-bikes

Pursuant to the Road Vehicle Standards (Classes of Vehicles that are not Road Vehicles) Determination 2021 (Cth), there are two types of power-assisted pedal cycles which are considered to be bicycles in South Australia:

Only these two types are legally allowed on South Australian roads and public spaces. Riders must follow the same rules as for other cyclists, including wearing helmets and ensuring adequate brakes.

Other power-assisted bicycles, in particular petrol-powered bicycles, are subject to the same requirements as motor vehicles. Registration and insurance requirements mean that riding petrol-powered bikes is illegal on South Australian roads and charges such as drive unregistered/drive uninsured and drive disqualified can follow.

Keeping a sufficient distance when passing bicycle

From 25 October 2015 it is an offence to fail to keep a sufficient distance when overtaking a cyclist [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 11A].

A "sufficient distance" is defined as the lateral distance between the bicycle and a car, that is, the distance between the furthermost point to the right of the bicycle and the furthermost point to the left of the driver’s vehicle (including any projection from the vehicle).

When travelling at speeds 60 km/h and under this is a distance of at least one metre and a distance of 1.5 metres when travelling over 60 km/h.

There is an exemption from certain rules in relation to overtaking if it is necessary in order to comply with regulation 11A. For example, if a driver is driving on a road with a dividing line they may drive to the right of the dividing line provided they have a clear view of any approaching traffic and can do so safely [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 11B ].

Maximum penalty: $2,500

Elements of the offence

A less serious offence to causing death or harm is driving recklessly or at a speed or a manner which is dangerous to any person [Road Traffic Act 1961 (SA) s 46(1)]. A person may be charged with this offence even if no one is injured and it is quite a common charge when drivers are caught driving at high speeds. Charges may be laid even if the driving posed no danger to any other road user or member of the public, but only to the driver: Senior v Police[2005] SASC 88.

What is dangerous driving?

Whether or not driving is dangerous depends on many factors, for example the time of day, whether other cars or people were about, any roads which may intersect with the road the defendant is travelling on, the condition of the road and whether the driver had been drinking as well as other relevant circumstances, such as the condition of the vehicle and whether the brakes or the tyres were defective - especially if the vehicle was travelling at high speed.

Penalty

Pursuant to s 46(1), the penalty for reckless and dangerous driving is:

In addition, the court must order a disqualification period of at least 12 months for a first offence or at least three years for a subsequent offence [s 46(3)].

A subsequent offence is an offence committed within five years of a previous similar offence.

Police have the power to impose an immediate licence disqualification or suspension (ILOL) for the offence of reckless and dangerous driving [Road Traffic Act 1961 (SA) s 47IAA(1)(ba), see Instant or immediate loss of licence].

Elements of the offence

Under s 19AC of the Criminal Law Consolidation Act 1935 (SA) it is an offence to drive a motor vehicle negligently, recklessly or at a speed or in a manner that is dangerous to any person in order to escape pursuit by a police officer or to cause a police officer to engage in a pursuit.

Penalties

A basic (non-aggravated) offence can carry a term of imprisonment of up to 3 years and an aggravated offence can result in a penalty of up to 5 years imprisonment.

An aggravated offence in this instance means that at the time the offence was committed the driver:

From 1 January 2024, it is an offence to drive an ultra high powered vehicle on a road if its automated intervention system is disabled [Road Traffic Act 1961 (SA) s 44C].

An ultra high powered vehicle is defined in Part 3 Division A1 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) as a motor vehicle with a GVM not greater than 4.5 tonnes, but not including a bus or a motor bike or motor trike, and with a power to weight ratio equal to or greater than 276 kilowatts per tonne. The regulations also define motor trike for the purposes of this definition.

An automated intervention system of a vehicle means a system or function that identifies a hazardous condition in relation to the vehicle and responds to the condition by overriding the driver's control of the vehicle to avoid the condition [Road Traffic Act 1961 (SA) s 44C(3)]. This could include automated emergency braking, electronic stability control and traction control. It does not include a warning system (such as a blind spot indicator or a lane departure warning) [s 44C(3)].

The maximum penalty for driving an ultra high powered vehicle with a disabled automated intervention system is a fine of $5000.

It is a defence to a charge against s 44C if the driver did not disable the automated intervention system, did not know and could not have known that it was disabled, and could not have been expected to ascertain that it was disabled [s 44C(2)(a)]. It is also a defence if it was impracticable to drive the vehicle with the automated intervention system enabled [s 44C(2)(b)].

Penalty

A person who is found guilty of driving a motor vehicle while disqualified from holding or obtaining a driver's licence or while the person's licence is suspended, may be subject to a term of imprisonment:

[Motor Vehicles Act 1959 (SA) s 91(5) and (5a)].

Defence of Honest and Reasonable Mistake of Fact

The defence of honest and reasonable mistake of fact is available for facts, which if true, would have rendered the conduct innocent- see Davis v Bates (1986) 43 SASR 149.This differs to the situation where a defendant has a mistaken understanding of the law.

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.

Defence of Sudden or Extraordinary Emergency

Section 15E of the Criminal Law Consolidation Act 1935 (SA) creates a statutory defence of 'sudden or extraordinary emergency'. See DEFENCES.

Imprisonment

The Supreme Court has frequently emphasised that the ordinary punishment for driving while disqualified must be imprisonment however, the court retains a discretion to suspend the sentence, but only in exceptional circumstances.

The Full Supreme Court (Police v Trevor Harold Cadd, John Patrick Hall, Attila Tibor Illes, Vasilios Vlachos and Mark Adrian Quinn(1997) Judgement No. 618, Mullighan J), held that the punishment 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 ...".

Circumstances to be taken into consideration:

All these factors require careful consideration under section 96 of the Sentencing Act 2017 (SA).

Contumacy

The issue of whether a term of imprisonment in relation to a drive disqualified offence should have been suspended was addressed in Mill v Police [2007] SASC 253. Although the magistrate’s decision to imprison Mr Mill was overturned on appeal the decision clearly shows that most cases of driving whilst disqualified will satisfy the definition of ‘contumacious’ offending (wilfully disobedient) resulting in a term of imprisonment.

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.

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 policy body worn video. The Court imposed a fine, with no conviction.

Guide to likely terms of imprisonment

As a guide, an unsuspended term of imprisonment may range from 10 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 occurred very soon after the disqualification. The gaol term is significantly more severe for a subsequent offence.

No further period of disqualification imposed by courts

As a matter of custom, courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of imprisonment is generally held to be sufficient penalty (see Saddler v Crossman (1988) 142 LSJS 337, von Doussa J).

No distinction between disqualification imposed by courts and disqualification by Registrar of Motor Vehicles

Strictly speaking there is no difference between a disqualification ordered by a court (eg for a drink-driving or other traffic offence or for an illegal use/interference offence) and a disqualification ordered by the Registrar of Motor Vehicles (eg under the points demerit system). Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders (Crook v Roberts (1990) 53 SASR 236; Maione v Higgins(unreported) Supreme Court, Olsson J. 1 February 1991, Judgment No. 2698).

Riding petrol-assisted bikes

Drivers disqualified due to drink driving can be charged with driving disqualified if they are found riding a petrol-assisted bike. Unlike ordinary bicycles, or even pedal power-assisted (i.e. electric) bikes, petrol-assisted bikes cannot be legally driven on South Australian roads (see Cyclists).

Under section 74 of the Motor Vehicles Act 1959 (SA) , it is an offence to drive a motor vehicle on a road without a valid licence.

Penalty - if previously authorised to drive

Where a driver is caught driving without a valid licence but has previously been authorised to drive a vehicle of the relevant class on a road, the maximum penalty is $1250.

In this section, "authorised to drive a motor vehicle of a particular class on a road" means:

The authorisation may be under the law of any Australian State or Territory.

See Motor Vehicles Act 1959 (SA) s 74(1).

Penalty - if never been authorised to drive

If a driver is caught driving without a valid licence and where they have never been authorised to drive a vehicle of that class, the maximum penalty is $2500 [Motor Vehicles Act 1959 (SA) s 74(2)]. But if the driver has never been authorised and is convicted of driving without a licence a second or subsequent time within 3 years of an earlier offence of:

there is a mandatory minimum 3 year licence disqualification, in addition to a maximum penalty of $5000 or imprisonment for 1 year [Motor Vehicles Act 1959 (SA) s 74(5)].

Penalty - if not authorised to drive following a serious drink driving offence

Where a driver has committed a serious drink drive offence, serves a period of disqualification and then drives without renewing their licence, they will be subject to the maximum penalty for driving unlicensed i.e. $5000 or imprisonment for 1 year, as well as the mandatory minimum 3 year licence disqualification [Motor Vehicles Act 1959 (SA) s 74(2a)].

A serious drink driving offence includes any drink driving offence other than a category one offence, or a category two offence that is also a first offence - see Motor Vehicles Act 1959 (SA) s 81E for definition.

Penalty - if not authorised to drive following certain drink or drug driving offences

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 of an offence pursuant to section 74(2ab) or 74(2ac), 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)].

Electric personal transporters (including electric scooters)

Electric scooters ('e-scooters') fall within the definition of 'electric personal transporters' in the Road Traffic (Miscellaneous) Regulations 2014 (SA) [reg 64A]. Similar items such as electric hoverboards, segways and electric skateboards are also electric personal transporters. Electric personal transporters do not include motorised wheelchairs and mobility scooters (gophers) typically used by people with mobility difficulties, moped scooters with internal combustion engines, electric bicycles [see Cycling], or kick scooters.

Whilst electric personal transporters are available in stores and often marketed as requiring no registration, they cannot be legally driven on South Australian roads, footpaths or other areas open to the public without the consent of the Minister [Road Traffic Act 1961 (SA) s 161A and Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 48]. Privately owned e-scooters may only be used on private property.

Electric personal transporters are considered to be motor vehicles, and are subject to registration, licensing and third party insurance requirements. It is not currently possible to register e-scooters or electric personal transporters in South Australia as they do not comply with the Australian Design Rules [see the Road Vehicle Standards Act 2018 (Cth)]. As a result, using electric scooters on a public road can result in charges of driving an unregistered vehicle [Motor Vehicles Act 1958 (SA) s 9, see Unregistered and uninsured vehicles].

Further information is available on the My Licence Rules for Riding Motorised Scooters and Skateboards in South Australia page.

E-scooter trials

As at June 2024, 3 e-scooter trials are approved by the Minister in South Australia. These trials are within defined areas in Adelaide and North Adelaide, the Coastal Park Trail, and Norwood Payneham and St Peters Council. The City of Unley trial ended on 14 February 2024. More information about the current trials is available on the Department for Infrastructure and Transport's My Licence E-scooter trial laws and road rules webpage.

The only e-scooters allowed to be used in the trial areas are those operating subject to a business permit issued by the relevant local city council.

Riders of e-scooters through the trials are required to comply with rules regarding their use, including that they must:

No person in control of an e-scooter is to allow a child under the age of 12 to use or be a passenger on the e-scooter. See regulations 30A and 30B of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) for further rules and penalties.

Offences

In addition to a charge of driving an unregistered vehicle [Motor Vehicles Act 1958 (SA) s 9, see Unregistered and uninsured vehicles], drivers of electric personal transporters can be charged with many other offences, including:

Depending on the nature of the alcohol or drug offence, an immediate loss of licence penalty may apply.

Electric personal transporters are considered to be wheeled recreational devices for the purposes of the Australian Road Rules, and riders must comply with all requirements accordingly [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 66A].

Injuries and insurance

E-scooters and other electric personal transporters are not registered motor vehicles and do not qualify for compulsory third party insurance. This means that if a person is injured by an e-scooter, any compensation claim must be brought against the rider personally. If the rider's details are unknown, no claim can be made.

Injuries occurring to pedestrians as a result of the e-scooter trials may, in some circumstances, be covered by the operator's insurance. It will depend on the contract between the rider and the operator. Many contracts provide that any policy will not apply to the rider, or to pedestrians where the rider fails to comply with a condition of the contract, such as riding without a helmet or with a passenger.

Call the free Legal Helpline on 1300 366 424 for more information regarding e-scooter offences and injuries.

Elements of the offence

Pursuant to s 45A of the Road Traffic Act 1961(SA), it is an offence to exceed the speed limit by 45 kilometres an hour or more.

Expiation penalties

A person can be given an expiation notice for an excessive speed offence:

For the amount of the expiation fee, see the PD320A - Expiable Offences and Fees - Traffic on the SAPOL website.

Licence disqualification by police (instant loss of licence)

Where a police officer reasonably believes that a person has committed an offence against section 45A, or where a person has been given an expiation notice as owner of the vehicle pursuant to section 79B, it will attract a disqualification notice under section 45B of the Road Traffic Act 1961 (SA). The disqualification notice issued by police has the effect of suspending a person’s licence if one is held, and of preventing a person from applying for a licence if no licence is held.

The disqualification or suspension commences [s 45B(10)]:

The disqualification operates for a period of no longer than 6 months, and will conclude earlier if court proceedings are finalised, withdrawn or otherwise discontinued. The court may determine a longer or further period of disqualification as part of the conviction penalty (see below).

Conviction penalties

If a court convicts a person the penalty will be [s 45A(1), (3)]:

Pursuant to s 45A(4a), an aggravated offence includes where the offender:

Previous convictions counted if within 5 years

In determining whether an offence is a first or subsequent offence, a previous conviction or expiation for an offence against sections 45A or 46 (reckless and dangerous driving) will be counted if committed within 5 years of the offence in question [s 45A(4)].

Excessive speed and road works

Where speed limit signs are placed on a road in relation to road works these will not be of any effect for the purposes of section 45A unless workers are either engaged at the road works site, or the area of road affected by the road works involves a greater than normal level of hazard [Road Traffic Act 1961 (SA) s 20(11)(b)]. This means that, if the usual speed limit is 50 km/h but signs are placed near road works on that length of road indicating a speed limit of 40 km/h past the road works, then a person travelling at 90 km/h on that length of road will not be guilty of the offence of excessive speed unless workers are engaged at the site or the site presents a greater than normal hazard. Workers will be taken to be engaged at the site if they are present in the area, or if they have been temporarily absent from the area for a period not exceeding two hours [Road Traffic Act 1961 (SA) s 20(15)]. Even if section 45A does not apply, however, if a driver has exceeded the normal speed limit they may still be guilty of the normal speeding offence against the Australian Road Rules.

Elements of the offence

Police officers have the power under section 54 of the Summary Offences Act 1953 (SA) to require vehicles to stop if they are emitting excessive noise by amplified sound equipment or other devices. Noise emitted from a vehicle is deemed to be ‘excessive’ if it is likely to unreasonably disturb persons in the vicinity of the vehicle. Unless there is proof to the contrary, evidence by a police officer that he or she formed the opinion based on his or her senses that the noise was likely to unreasonably disturb persons in the vicinity constitutes proof that the noise was excessive [Summary Offences Act 1953 (SA) s 54(8)].

Drivers must give name and address if requested

Where excessive noise is emitted from a vehicle, police can require the driver and any other occupant of the vehicle to state their full name and address, and to provide evidence of their address if there are reasonable grounds to suspect that the name or address provided are false [Summary Offences Act 1953 (SA) ss 54(1)(b) and 54(4)].

Written warnings

Drivers of vehicles emitting excessive noise from amplified sound equipment or other devices may be given a written direction obliging them to immediately turn off the device. This is effectively a warning. Drivers who refuse or fail to comply with the written direction are guilty of an offence punishable by a fine of up to $1250 [Summary Offences Act 1953 (SA) s 54(6)].

Offences committed within 6 months of written warning

The police officer who issues the direction must advise the person that, during the period of 6 months after the issue of the direction, it is an offence to cause or allow excessive noise to be emitted from a vehicle driven or otherwise occupied by the person by amplified sound equipment or other devices. This means that a person who has been issued with a warning and who drives or occupies a vehicle emitting excessive noise within 6 months of receiving the warning commits an offence, also punishable by a maximum fine of $1250 [Summary Offences Act 1953 (SA) s 54(7)].

Other offences

It is also an offence to:

These offences are punishable by a fine of up to $1250 or imprisonment for 6 months [see Summary Offences Act 1953 (SA) s 54(5)].

Police powers to impound

Police officers may also have the power to seize and impound a motor vehicle emitting excessive noise [see Clamping, impounding, seizure and forfeiture offences].

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 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, the court must disqualify an offender for 2 years (for a basic offence) or 5 years (for an aggravated offence). For subsequent offences, the court must impose a disqualification period of at least 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 an 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 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).

Generally drivers are required to give way to their right. However, there are other give way requirements such as at intersections or crossings, when in slip lanes or moving away from the edge of the road, and to certain vehicles such as buses and emergency vehicles.

Most provisions are contained in Part 7 of the Australian Road Rules which contain detailed descriptions of a driver's obligations including extensive use of explanatory diagrams.

Elements of the offence

A person misuses a motor vehicle if the person —

[see Road Traffic Act 1961 (SA) s 44B].

Unless it is done with the consent of the owner, occupier or person in control of the place, misuse of a motor vehicle is an offence. This offence may include conduct such as drag racing, “wheelies” and so on. The provisions that deal with these offences and that of emitting excessive noise from a motor vehicle are often referred to as 'hoon' laws.

Penalties

A person who is found guilty of the offence is punishable by a fine of up to $2500 [s 164(A)(2) Road Traffic Act 1961 (SA)]. In addition the offence also carries a penalty of 4 demerit points [Motor Vehicles Regulations 2010 (SA) Sch 4 Part 2].

Compensation for damage

Persons found guilty of this offence will also be ordered by the Court to pay compensation for any damage caused to property [Road Traffic Act 1961 (SA) s44B(5)].

Police powers to impound vehicles

Police officers also have the power to seize and impound a motor vehicle involved in the commission of the offence [see Clamping, impounding, seizure and forfeiture offences].

Under rule 300 of the Australian Road Rules, it is an offence to use a mobile phone when driving, other than when parked. This means that a driver is not permitted to use a mobile phone even when stationary at traffic lights.

Use is defined very broadly in rule 300. It includes:

Only those drivers with phones that can be used remotely (such as via Bluetooth) or which are mounted in a proper device that enables calls to be made or received without touching or holding the phone can make or receive an audio phone call whilst driving.

An audio phone call does not include an email, text message, video call or video message. This means that creating, viewing or sending text or video messages is prohibited, even by remotely accessed phones. However, automatic receipt of communications by the phone itself are excluded.

A mobile phone may be used as a driver’s aid but only if the phone is secured in a mounting affixed to the vehicle while in use and the use of the phone does not require the driver to press or manipulate any part of the phone.

From 19 June 2024, a driver will not commit an offence against rule 300 of the Australian Road Rules if their vehicle is stationary in a road-related area and their mobile phone is being used to

See Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 43C.

Learner permit and provisional (P1) drivers are prohibited from using any type of mobile phone technology whilst driving [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 44]. The ban includes hands free mode (for example, Bluetooth) and loud speaker.

It is legal for a learner or P1 driver to make or receive calls if the car is safely parked. This does not include being stationary in traffic or at traffic lights. It is also lawful for a learner or P1 driver to use a phone in the circumstances set out in regulation 43C (outlined above).

From 30 March 2024, the Australian Road Rules clarify that a car may be parked for the purposes of rule 300 even if the key is in the ignition, or the engine is running.

See Expiable Offences and Fees (PD320A) on the SAPOL website for the current penalties that apply.

Failure to comply with duties after an accident

The driver of every vehicle involved in an accident must [Australian Road Rules reg 287(2)]:

If any of the following circumstances apply, the driver must also report these details to police as soon as possible within 24 hours or within the time indicated below [reg 287(3)]:

A driver must also remove any debris from the road or take action to have them removed as soon as can be done safely after an accident [see Australian Road Rules reg 293].

Elements of the offence and penalty

Failure to comply with these duties is an offence, and in relation to accidents where no-one is injured or killed the penalty is a fine of up to $2,500 [Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 67].

Police can require the drivers to give details of the day, time and place of the crash, details of the vehicle/s involved, details of other drivers, passengers, pedestrians involved, witnesses, and details of any injuries and damage resulting from the crash. Police can ask about vehicle speeds and positions before and at the time of impact, but if you think this information may incriminate you, you do not have to answer. See Answering police questions about what questions you must answer and Arrest and Questioning for further information.

Elements of the offence and penalty

Failure to comply with these duties is an offence and the penalty is imprisonment of up to five years and license disqualification for at least one year [Road Traffic Act 1961 (SA) s 43(1)]

Defences

It is a defence to this charge if the driver was reasonably unaware that the accident had occurred [s 43(3)(a)]. It is also a defence if the driver genuinely and reasonably believed that to comply would endanger them physically and they notified the police, ambulance or another authority at the earliest opportunity [s 43(3)(b)].

In relation to failure to comply with the duty to present to a police officer, it is a defence if the driver has a reasonable excuse for failing to comply and they still presented themselves as soon as possible after the accident [s 43(3)(c)].

Failure to comply with duties where the accident involved injury or death

Pursuant to s 43(1) of the Road Traffic Act 1961 (SA), the driver of every vehicle involved in an accident in which a person is killed or injured must immediately

Elements of the offence

It is an offence to fail to comply with your duties as a driver involved in an accident [s 43] where another person has been injured or killed as a result of driving without due care or attention or without reasonable consideration for any person [Criminal Law Consolidation Act 1935 (SA) s 19AB].

Penalty - fatal accidents

Where the accident has resulted in death, the penalty for the first offence is imprisonment of up to 15 years and licence disqualification for at least 10 years. Subsequent offences carry a penalty of up to life imprisonment and licence disqualification of at least 10 years.

Penalty - non-fatal accidents

Where the accident has resulted in serious harm, the penalty for a first offence is imprisonment of up to 15 years and a licence disqualification of at least 10 years. For subsequent offences the penalty is imprisonment up to life and licence disqualification for at least 10 years.

Where the accident has resulted in physical harm but not serious harm, the penalty for a first offence is a term of imprisonment of up to 5 years and licence disqualification for at least one year. For subsequent offences the penalty is imprisonment up to seven years and licence disqualification for at least three years.

For a definition of "serious harm" see s 21 and for "subsequent offence" see s 19AB(4).

From 1 January 2024, the Commissioner of Police must issue an instant loss of licence notice (ILOL notice) to a driver charged with an offence against s 19AB where a motor vehicle was used in the commission of the offence and where the offence caused the death of, or serious harm to, a person [s 19AE]. Also from 1 January 2024, the police may issue an ILOL notice to a driver suspected of committing an offence against s 19AB where a motor vehicle was used in the commission of the offence [s 19AF].

Because the thoughtless commission of a serious driving offence can result in an otherwise responsible person being sent to prison, juries (and even judges) are sometimes inclined to sympathise with the offender and vote for complete acquittal. To provide an alternative to this unsatisfactory solution a jury may find an offender not guilty of the offence charged but guilty of a specified lesser offence. In the case of a person charged with murder or manslaughter resulting from irresponsible driving, the lesser offence may be causing death by reckless driving.

Elements of the offence

To be guilty of this offence the person must have driven the motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner that was dangerous to any person who may have been present. As with manslaughter, a very high degree of negligence is needed. A momentary lack of attention in the person's driving would rarely be sufficient.

Penalties - death or grievous injury

For a first offence of causing death or grievous injury by reckless driving the penalty is imprisonment for a maximum of ten years and licence disqualification for a minimum of five years. The penalty for a subsequent offence is imprisonment for up to fifteen years and licence disqualification for a minimum of ten years [Criminal Law Consolidation Act 1935 (SA) s 19A(1)]. As is the case with any minimum period of licence disqualification for an indictable offence under the Criminal Law Consolidation Act 1935 (SA) the court can increase the period of disqualification as it thinks fit.

Penalties - injury (not grievous)

Where injury (but not grievous injury) is caused, the penalty for a first offence is imprisonment for a maximum of four years and licence disqualification for a minimum of one year. For a subsequent offence the penalty is imprisonment for up to six years and disqualification for not less than three years [Criminal Law Consolidation Act 1935 (SA) s 19A(3)]. Where the offence causing an injury was committed by using a vehicle other than a motor vehicle, or an animal, the penalty is imprisonment for up to two years.

Lesser offence

A lesser offence to causing death or injury is driving in a reckless manner or at a speed or a manner which is dangerous to any person [Road Traffic Act 1961 (SA) s 46(1)], See Dangerous Driving.

Seatbelts

The driver of a vehicle fitted with an approved seatbelt must wear it properly adjusted and fastened [see Australian Road Rules r 264 and examples below].

A passenger (16 years or older) of a vehicle must wear an approved seatbelt properly adjusted and fastened [r 265(1)].

The driver of a vehicle must also ensure that each passenger wears an approved seatbelt properly adjusted and fastened or is restrained in a suitable, properly fastened and adjusted approved child restraint as set out below [rr 265(3) and 266(1)].

Child restraints

Children less than six months old must be restrained in a suitable and properly fastened and adjusted rearward-facing approved child restraint [r 266(2)].

Children aged six months to four years must be restrained in a suitable and properly fastened and adjusted approved rearward-facing or forward-facing (with in-built harness) child restraint [r 266(2A)].

Children aged four to seven years must be restrained in either a suitable and properly fastened and adjusted approved forward-facing (with in-built harness) child restraint; a properly positioned approved booster seat with seat belt properly adjusted and fastened; or if seated in a part of the vehicle primarily designed for the carriage of goods, by lap and sash seatbelt properly fastened and adjusted or lap seatbelt properly fastened and adjusted and approved safety harness properly fastened and adjusted [r 266 (2B)].

There is an exemption from the requirements in subrules 266(2), 266(2A) and 266(2B) if the driver is carrying a medical certificate stating that the child not be restrained in the ways required by the subrules because of a medical condition or disability. The child must then be properly restrained in a child restraint that has been designed for a passenger or person with the same medical condition or disability as the child. The exemption will only apply if the driver immediately produces the medical certificate when requested by a police officer or authorised person [r 266(2D)].

Children over seven years must be restrained in a suitable and properly fastened and adjusted approved child restraint or wear an approved seatbelt that is properly adjusted and fastened [r 266(4)].

For more information about choosing a suitable approved child restraint see the South Australian Government's My Licence website.

Position of children in the vehicle

Children under four years must not sit in a front seat of a vehicle which has back seats [r 266(3)].

Children aged over four but under seven years must not sit in a front seat of a vehicle which has back seats, unless all of the back seats are already taken by children also under the age of seven [r 266(3A)].

An exemption applies if the driver is carrying a medical certificate that states that the child should travel in the front row of the vehicle due to a medical condition. However, the exemption will only apply if the driver is able to immediately produce the medical certificate to a police officer or authorised person when requested [r 266(3B), (3C)].

Children traveling in public minibus or taxi

The driver of a public mini bus or taxi is exempt from ensuring that children are restrained in approved child restraints as per Australian Road Rules rr 266(2), (2A) and (2B) if there is none available 266(5)(a) and the child sits in a back seat [r 266(5)(b)]. However, the driver must ensure children aged over one year but under seven years wear an approved seatbelt [r 266(5A)].

Exemptions

There are a number of exemptions to the rules in relation to the wearing of seatbelts and child restraints in rule 267 of the Australian Road Rules. For example, seatbelts do not have to be worn by people if their doctor has issued a certificate (valid for up to one year) stating that they should not wear a seatbelt due to their medical condition. The person must have the letter with her or him, or an approved seatbelt must be worn [Australian Road Rules rr 267(3A) and (4)].

There is also an exemption for people in South Australia if their doctor has issued a certificate stating that they are not required to wear a seatbelt (for a set period or indefinitely) due to a physical disability or any other medical ground [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 37(2)]. An exemption also exists for historic vehicles registered under section 25 of the Motor Vehicles Act 1959 (SA) and being driven in accordance with the conditions of that registration [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 37(1)].

Examples of seatbelts being properly adjusted and fastened

From 30 March 2024 the Australian Road Rules include examples of seatbelts being property adjusted and fastened [rules 264, 265]:

Exceeding the Speed Limit

Expiation notices can be issued by SA Police where a driver exceeds the signed speed limit. Penalties may vary depending on the area or zone in which the speeding offence is committed.

Fines and demerit points apply where a driver:

Where a driver exceeds the signed speed limit by 45 km/hr or more, they may be charged with the offence of driving at excessive speed, see: Excessive Speed.

To view the current expiation fees and demerit points that apply to exceed speed offences, see the SA Police Expiations websiteand the Expiable Offences and Fees - Prescribed Camera Offences PDF.

Default speed limits

A speed limit sign often indicates the speed limit [Australian Road Rules r 20] or if there are no signs, the default speed limit applies. In a built-up area the default speed limit is 50 kph or outside of built-up areas, 100 kph [Australian Road Rules r 25].

Speed limits applying to classes of vehicles

There are also some special speed limits applying to certain classes of vehicles, for example buses exceeding 5 tonne gross vehicle mass (GVM) and vehicles exceeding 12 tonne GVM must not exceed 100 km/h.

Speed limit when passing an emergency service speed zone

Drivers must slow down and drive at a safe speed, and in any case no greater than 25 km/h, when passing through an emergency service speed zone.

An emergency service speed zone is an area of road in the immediate vicinity of an emergency vehicle that has stopped and is displaying a flashing blue or red light, or between 2 sets of flashing blue or red lights on a length of road on which an emergency vehicle has stopped [Road Traffic Act 1961 (SA) s 83].

The speed restriction does not apply where a person is driving on a road that is divided by a median strip and the emergency service speed zone is on the other side of the road.

Drivers are required to be alert and responsive to such situations as the speed restriction applies in any case where a police patrol car’s red and blue lights have been activated. This includes, for instance, where a driver has been pulled over by police for speeding on a freeway and the patrol car’s red and blue lights are flashing, even though it may not technically be an emergency.

Drivers of emergency vehicles such as police and emergency workers are exempt from these provisions. The definition of an "emergency worker" includes members of the armed forces, the Australian Federal Police and the Australian Border Force.

Penalty

The maximum penalty for any of the speeding offences described above is a fine of up to $2,500 [Road Traffic Act 1961 (SA) s 164A].

Further offence of dangerous driving

Drivers who excessively speed may also be charged with an offence of dangerous driving [Road Traffic Act 1961(SA) s 46], see Dangerous driving.

Proof of speeding

Police will generally seek to prove a speeding offence through use of radar, laser devices, speed cameras or through the observation of a police officer. Speed cameras must be set up and photographs processed in accordance with the Road Traffic (Miscellaneous) Regulations 2014 (SA) [regs 32-36]. There are also provisions to allow better detection of speeding on rural highways through the use of average speed evidence [Road Traffic Act 1961 ss 79B, 175A]. Average speed evidence is calculated by measuring the speed of a vehicle between two separate speed camera locations rather than at a single point. Average speed camera locations can be situated from 14 to 50 km apart.

An expiation notice will be sent to the registered operator of the motor vehicle who must be given the opportunity to view the photograph and if she or he is not the driver, can complete a declaration nominating the actual driver. These photographs can be viewed online at SA Police Online Photo Requests Portal.

Other devices used to measure speed must be approved and also properly calibrated. A driver may be able to defend an offence if the police did not comply with any of these procedures, legal advice should be sought in these circumstances.

Road Works

Expiation notices may be issued for speeding where a driver exceeds the speed limit of a temporary traffic control sign, such as those used in areas of road works. Where reduced speed limit signs are placed on a road in relation to road works, the speed limit signs are of no effect during any period where workers are not engaged at the road works site, and the area of road affected by the road works does not involve a greater than normal level of hazard [Road Traffic Act 1961 (SA) s 20(11)(b)]. This means that, if the usual speed limit is 50 km/h but signs are placed near road works on that length of road indicating a speed limit of 40 km/h past the road works, then a person travelling at 60 km/h on that length of road will not be fined for exceeding the speed limit by 20 km/h, unless workers are engaged at the site or the site presents a greater than normal hazard. Workers will be taken to be engaged at the site if they are physically present in the area, or if they have been temporarily absent from the area for a period not exceeding two hours [Road Traffic Act 1961 (SA) s 20(15)]. Even if the driver is not fined for exceeding the speed limit by 20 km/h, they may still may still be guilty of exceeding the speeding limit by 10 km/h (as they drove 60 km/h and the usual limit is 50 km/h) and may be fined accordingly.

Beach speed limits

From 1 December 2023, unless otherwise signposted, the speed limit on beaches that permit driving is 40km/h, or 25km/h when within 50 metres of a person. The maximum penalty is a fine of $5,000 [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 8A]. The offence is expiable and attracts demerit points.

Participating in a street race, or in preparations for a proposed street race, is an offence [s 19AD Criminal Law Consolidation Act 1935 (SA)].

A street race includes any or all of the following when conducted on a road or a road-related area:

Elements of the Offence

A person participates in a street race, or in preparations for a proposed street race, if the person:

A person may be found guilty of an offence relating to a proposed street race whether or not the street race took place.

*Promoting a street race includes:

Penalties

For a first offence that is a basic offence:

Imprisonment for 3 years and disqualification from holding or obtaining a driver's licence for 1 year or such longer period as the court orders.

For a first offence that is an aggravated offence:

Imprisonment for 5 years and disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders.

An aggravated offence of street racing is where the offender:

Circumstances of heightened risk, in relation to the driving of a motor vehicle, means:

For any subsequent offence:

imprisonment for 5 years and disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders.

An offence will be considered to be a subsequent offence if there is a previous offence (for which the defendant has been convicted and that was committed within the period of 5 years immediately preceding the commission of the offence under consideration) against:

An offence will also be considered to be a subsequent offence if there is a previous offence (whenever occurring) for which the defendant has been convicted against:

Elements of the offence

It is an offence to throw or drop an object at or on a vehicle being driven on a road, busway, railway or tramway [Criminal Law Consolidation Act 1935 (SA) s 32A]. The offence will be made out regardless of whether the vehicle is moving or stationary at the time that the object is thrown or dropped.

Penalty

A penalty of up to 5 years imprisonment applies.

Definition of 'vehicle'

‘Vehicle’ includes all modes of transport such as bicycles, animal drawn carriages and even a person riding an animal.

The types of objects covered by the legislation are numerous and include:

These offences (and the defences available to them) reinforce that it is the owner's responsibility to ensure vehicles are registered and insured.

Unregistered vehicles

It is an offence to do any of the following:

Due to the broad definition of a "road", which includes any place the public has access to, many people unknowingly commit an offence. For example, riding an unregistered off-road motor cycle on a reserve may be an offence.

Penalty

A fine of up to $7500 [Motor Vehicles Act 1959 (SA) ss 9(1), 9(3)].

Defences for drivers

It is a defence if you drove the vehicle or allowed it to stand in prescribed circumstances and you did not know that it was unregistered [see s 9(1a)]. It is also a defence if you were the driver, but not the owner of the vehicle, and you did not know, and could not have reasonably be expected to have known, that the vehicle was unregistered [see s 9(1c)].

Defences for owners

It is a defence if you did not drive or leave the vehicle standing on the road and you took reasonable steps to ensure that any person lawfully entitled to use the vehicle would have been aware that it was unregistered [see s 9(4a)]. It is also a defence if your vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 9(5)], or you were the last registered owner but were nolonger the owner at the time of the alleged offence [see s 9(6)].

Power-assisted bicycles

There are two categories of power-assisted bicycles – one of which falls within the definition of a bicycle and can be legally ridden on South Australian roads; the other being illegal to drive on a public road in South Australia.

Generally, a power assisted bicycle will meet the definition of a bicycle if the main means of propulsion is by pedal power and the motor produces no more than 200 watts; Pedalec bikes also meet the definition of a bicycle but have a motor capacity of 250 watts. Electric power assisted bikes look like an ordinary bike, have an adjustable seat and an electric assistance motor. In addition they must have a clear label certifying them as complying with the nationally accepted standards for electric bicycles (see Cyclists).

Petrol powered bikes (also referred to as petrol assisted) cannot be lawfully driven on roads in South Australia. Any vehicle that does not meet the definition of a bicycle must be registered as a motor vehicle and insured.

Petrol powered/assisted bikes cannot be registered (or insured). This means that driving such a vehicle on the roads can result in a charges of driving an unregistered and uninsured vehicle.

Exemptions

A motor vehicle may be driven without registration under section 12B of the Motor Vehicles Act 1959 (SA) if being driven for the purpose of extinguishing or controlling a fire that is a risk to persons, animals or property - but only if public liability insurance is held indemnifying the owner and any authorised driver for death or injury caused by the use of the vehicle on roads. The amount of public liability insurance must be in an amount of at least $5 million.

Uninsured vehicles

It is an offence to do any of the following:

An uninsured vehicle is defined as a vehicle that is not covered by compulsory third party insurance. This insurance automatically applies with the registration of a vehicle and continues until thirty days after the registration expires.

Penalty

A fine of up to $10000 [Motor Vehicles Act 1959 (SA) ss 102(1), 102(2)].

Power assisted bicycles

As discussed above, only those bicycles that meet the definition of a bicycle (including an electric power assisted bicycle up to 200 watts or a Pedalec with capacity up to 250 watts) are exempt from having to be registered and insured. Bicycles running on petrol powered motors are not included in the exemption for registration and insurance. Riding such a bike can therefore result in a charge of driving uninsured (and driving unregistered).

Defences for drivers

It is a defence if you drove the vehicle or allowed it to stand in prescribed circumstances and you did not know that the vehicle was uninsured [see s 102(1a)]. It is also a defence if you were the driver but not the owner of the vehicle and you did not know, and could not reasonably be expected to have known that the vehicle was uninsured [see s 102(9c)].

Defences for owners

It is a defence if you did not drive or leave the vehicle standing on the road and you took reasonable steps to ensure that any person lawfullly entitled to use the vehicle would have been aware that he vehicle was uninsured [see s 102(3aa)]. It is also a defence if your vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 102(3a)], or you were the last registered owner but were no longer the owner at the time of the alleged offence [see s 102(3b)].

Detection by speed and traffic cameras

Speed and red light cameras can be used to detect unregistered and uninsured vehicles.

Where an expiation notice is issued as a result of detection by a speed or red light camera, any subsequent offences committed within seven days of the commission of the offence are subsumed by the first offence (i.e. not counted as separate offences) [see Motor Vehicle Act 1959 (SA) sch 1 s 2(1)]. This is in recognition of the fact that there will be a lapse of time between the commission of the offence and the driver being notified of it. However, where a driver is charged with an offence of drive unregistered or drive uninsured by expiation notice, any subsequent offences committed after this are counted as separate offences (not subsumed) [see sch 1 s 2(2)].

Exemptions

A motor vehicle may be driven without insurance under section 12B of the Motor Vehicles Act 1959 (SA) if being driven for the purpose of extinguishing or controlling a fire that is a risk to persons, animals or property - but only if public liability insurance is held indemnifying the owner and any authorised driver for death or injury caused by the use of the vehicle on roads. The amount of public liability insurance must be in an amount of at least $5 million.

If a motor vehicle is used to assist in the commission of an offence, the court sentencing the offender has the power to disqualify the person from holding or obtaining a driver's licence, either for a specified period or until further order [Road Traffic Act 1961 (SA) s 170]. When a person uses a car, for example, in an armed robbery or to take a rape victim to the scene of the crime, it would not be unusual for the person to be disqualified from holding or obtaining a driver's licence for some period in addition to receiving the penalty laid down for the primary offence.

Heavy Vehicle Laws

There are many offences concerning the driving of heavy vehicles due to increasing regulation to improve safety standards.

The relevant legislation for South Australia is the Heavy Vehicle National Law (South Australia) 2013 (SA).

The Heavy Vehicle National Law regulations also apply. PDF versions of the regulations can be downloaded from the National Heavy Vehicle Regulator website, or they can be accessed individually via the NSW legislation website:

A useful website containing information for truck drivers about the law governing them and their work is the National Heavy Vehicle Regulator website.

The website contains relevant forms, information on access permits, and industry updates as well as up-to-date details on penalties and infringements including an indication, where relevant, of the range of penalties imposed by the courts.

Speed and Gear Restrictions on Prescribed Roads (the South Eastern Freeway)

The Road Traffic Act 1961 (SA) places speed and gear restrictions on truck and bus drivers who drive on prescribed roads. Specific penalties will apply to truck and bus drivers who commit offences on prescribed roads.

A prescribed road in these circumstances is a portion of the South Eastern Freeway within South Australia, or adjacent land, as defined in regulation 61A of the Road Traffic (Miscellaneous) Regulations 2014 (SA).

A truck or a bus is a vehicle that is defined as such for the purposes of the Australian Road Rules.

Exceeding the speed by 10 kilometres an hour or more

It is an offence for a person to drive a truck or a bus on a prescribed road while exceeding the relevant speed limit by 10 kilometres an hour or more [Road Traffic Act 1961 (SA) s 45C(1)].

Maximum Penalty:

For a first offence – a fine of up to $5,000

For a subsequent offence – imprisonment for two years.

See Road Traffic Act 1961 (SA) section 45C(1).

A licence disqualification will also apply and demerit points will be incurred - see further below.

A driver may receive an expiation notice for committing this offence. Where the offence is expiated, the expiable amount payable is $1,098 [Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4, Part 2 as at 1 July 2022]. A person who receives an expiation notice for this offence can dispute the notice in the usual way - see Expiation Notices. Legal advice should be sought before electing to be prosecuted.

Failing to use low gear

It is also an offence for a person to drive a truck or bus on a prescribed road to which a trucks and buses use low gear sign applies while driving in a gear that is not low enough to enable the vehicle to be driven safely without the use of a primary brake [Road Traffic Act 1961 (SA) s 45C(2)].

Maximum penalty:

For a first offence – a fine of up to $5,000

For a subsequent offence – imprisonment for two years.

See Road Traffic Act 1961 (SA) s 45C(2).

A licence disqualification will also apply and demerit points will be incurred- see further below.

A driver may receive an expiation notice for committing this offence. Where this offence is expiated, the expiable amount payable is $1,098 [Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4, Part 2 as at 1 July 2022]. A person who receives an expiation notice for this offence can dispute the notice in the usual way - see Expiation Notices. Legal advice should be sought before electing to be prosecuted.

Mandatory licence disqualifications for Speed and Gear offences on prescribed roads

In addition to the above penalties, a person who commits these offences will also face a mandatory licence disqualification. The disqualification period will vary depending on whether the person expiates the offence or whether they are convicted by a court of the offence.

For a person convicted by a court of the offence, the mandatory licence disqualification periods are as follows:

For a first offence – at least six months;

For a second offence - at least 12 months; and

For a subsequent offence – for at least three years.

See Road Traffic Act 1961 (SA) s 45C(3).

Where a person expiates an offence, the mandatory licence disqualification periods that apply are:

For a second offence - six months;

For a third offence - 12 months; and

For a subsequent offence - three years.

See Motor Vehicles Act 1959 (SA) s 81BC(7)(b).

Where a person receives an expiation notice for committing a second or subsequent offence against section 45C, a police officer may give the person a notice of licence disqualification [see Road Traffic Act 1961 (SA) s 45D(2)]. In certain circumstances, a person who receives a notice of licence disqualification may apply to the Magistrates Court to have the disqualification lifted [see s 45E, Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 3 Division 1]. Legal advice should be sought before commencing any court application.

Detection through photographic detection devices

A person may be detected committing an offence contrary to section 45C(1) through the use of a photographic detection device [see Road Traffic Act 1961 (SA) s 79B(1)]. The same penalties as prescribed in section 45C(1) apply (a fine, a mandatory licence disqualification and demerit points). The Registrar of Motor Vehicles is empowered to issue a notice of a licence disqualification when a person expiates a second or subsequent offence captured through a photographic detection device [Motor Vehicles Act 1959 (SA) s 81BC].

Demerit Points

A driver who commits an offence against the Road Traffic Act 1961 (SA) section 45C(1) or section 45C(2) will incur 6 demerit points [see Motor Vehicles Regulations 2010 (SA) Schedule 4].

Increased penalties where the owner is a body corporate

More significant financial penalties apply to offences committed where the owner of the truck or bus is a body corporate and the body corporate fails to:

See Road Traffic Act 1961 (SA) section 79B(2).

If a body corporate fails to furnish a statutory declaration with the above information, they may liable for increased financial penalties.The fine for a speeding offence committed contrary to section 45C(1) increases to an amount not less than $10,000 and not more than $20,000 where the owner is a body corporate [s 79B(2)(aa)(i)].

Where an offence against section 45C(1) is expiated, the expiation fee that applies where the owner is a body corporate is the expiable amount ($1,098 as at 1 July 2022) plus $5,000 [see Road Traffic Act 1961 (SA) s 79B(2a)(aa) and Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4, Part 2].

There are many traffic offences for which a police officer can issue an expiation notice (or on-the-spot fine) rather than a summons to attend court proceedings for prosecution.

An on-the-spot fine is not recorded as a conviction, but a driver will incur demerit points for the offence [see Motor Vehicles Act 1959 (SA) s 98B] and upon expiation, the same rules of forfeiture will apply as if a conviction had been recorded [see Expiation of Offences Act 1996 (SA) s 15(5)].

For more information about the expiation notice system and the options available upon receiving an expiation notice, see Expiation Fees and Fines.

A person will automatically be found guilty of the offence where an expiation notice is issued and remains unpaid after a reminder notice has been sent. As a result, prosecutions for traffic offences are mainly for offences where an expiation notice is not issued, or if a notice was issued, the person has completed an election form, asking to be prosecuted for the offence.

Most prosecutions for minor offences are commenced by the issuing of an Information and Summons on a Form 2 [Joint Criminal Rules 2022 (SA) r 62.1] For a summary offence not punishable by imprisonment or detention, a Form 51 Written Guilty Plea can be served with the Information. With a completed, filed and served Form 51, a person can plead guilty and not attend court. A guilty plea can be entered by completing a Form 51 Written Guilty Plea with the details required to be taken into account by the court when it fixes the penalty. The form must be signed in front of a lawyer, a justice of the peace or a police officer and returned to the court at least 7 clear days before the date set for the hearing [Joint Criminal Rules 2022 (SA) r 70.2]. The form also needs to be served on the informant (police prosecution) as soon as possible after filing with the court. After the hearing the offender is notified of the penalty imposed. However, if the penalty for the offence includes possible licence disqualification, the offender will be notified of the necessity to attend the hearing, as the court cannot disqualify a person from driving unless the person is given an opportunity to say why it should not do so.

People wishing to plead not guilty simply attend court, either personally or through a lawyer, on the day shown on the summons. Drivers who commit more serious offences must attend court even if pleading guilty. Legal advice should be sought in this situation.

The majority of drink driving offences are dealt with by the Magistrates Court. Below is a guide to preparing to appear in the Magistrates Court on these matters.

Before going to court

Legal advice

Make sure you get legal advice first. It may be that you are not guilty of the charges but are guilty of a lesser offence (see Trifling offences). If you are in any doubt you should not plead guilty without having sought legal advice first. If you go to court without having had legal advice you may feel pressured to plead guilty just to get things over and done with. You should not make a decision to plead guilty until you have had legal advice. You can ask the magistrate for an adjournment (i.e. request that the matter be rescheduled) in this situation, explaining that you need to get legal advice. If an adjournment is granted, the magistrate will allow you to return at a later date.

The Legal Services Commission operates a duty solicitor service at all metropolitan courts and at Mount Barker, Port Augusta and Whyalla. If available, the duty solicitor may be able to provide advice on applying for an adjournment, see Duty solicitors.

Will I get legal aid?

Legal aid is not usually granted for traffic offences. The exception to this is if there is a real risk you could face imprisonment. This is unlikely for drink driving offences but other offences such as driving disqualified or serious offences such as dangerous driving can have a term of imprisonment. If facing such charges you may be eligible for a grant of legal aid for a lawyer to represent you. Seek advice from our Legal Helpline on 1300 366 424 if you are in any doubt about this.

Deciding whether to plead guilty or not guilty

You will need to seek legal advice before making the decision about how to plead. As a consequence of the advice you receive there may be other things you need to think about before deciding on how to plead (see Sentencing).

If pleading guilty there are some advantages. For example, the court is likely to give you a less severe penalty.

If pleading not guilty you must have a case that has a reasonable chance of succeeding. This is extremely difficult with drink driving offences (see Challenging breath test results). Again you will need to seek legal advice about this. You also need to be aware of what will happen if you lose. If you choose to plead not guilty the matter will go to trial and you will need to pay for a lawyer to represent you or represent yourself. If you lose your case you will have to pay court costs, in addition for the costs of paying for legal representation.

Preparing for the hearing

Think about what you will say to the Magistrate before going to court. You may also need to provide supporting documents to the court. Take several copies of any documents you wish to provide as you will need to provide a copy for the magistrate and the prosecution.

Be prepared to tell the court of anything you wish them to take into account in mitigation of penalty (i.e. factors that mean you should face lower penalties as a result). These can be things like:

Will I lose my licence?

With the exception of first offences between 0.05 and 0.079, all drink driving offences carry with them a compulsory period of licence disqualification. This means that you will lose your licence for at least the minimum period specified by the legislation. However, the courts also have the power to grant an even longer licence disqualification. In making submissions to the court about penalty you will need to provide evidence of your reliance on your licence and how this effects you and your family, and any other factors to show why the minimum disqualification period should not be extended.

How much will it cost?

In addition to the fine imposed by the court, you will also have to pay the victims of crime levy of $270 for each offence ($20 - $40 for a youth)*. If you are found guilty, you will also be required to pay a prosecution administration fee of $150*. You may also have to pay other additional court costs such as witness fees. For more information, please refer to Court costs.

*These amounts are as at 1 July 2024.

A court can disqualify a driver if he or she has been found guilty of a traffic offence that carries a penalty of disqualification. However, a court also has the power to disqualify a driver under section 168 of the Road Traffic Act 1961 (SA), which allows for disqualification for any offence using a motor vehicle. The court can impose a disqualification for a fixed period or until further order.

Where a court has disqualified a driver, it may postpone the commencement of disqualification where special reasons exist, for example, to enable a defendant to drive home or complete work commitments.

A driver who has served a court ordered disqualification period will need to renew their licence once the disqualification has been served. Failure to do so will mean that they are not be eligible for the good behaviour option if demerit points apply for the original offence.

The Young Offenders Act 1993 gives the Youth Court the power to order that a child who is found guilty of an offence may not hold or obtain a driver’s licence if it is of the opinion that the child is not a fit and proper person to hold a driver’s licence. Generally, children are treated more leniently than adults.

A person claiming on an insurance policy for damage as a result of an accident must inform the insurer of court proceedings for an offence arising out of the incident, as it may affect the insurer's ability to defend the claim. A person who pleads guilty without first getting the insurer's approval may find that the insurer will refuse to meet the claim.

A mistake in either an expiation notice or a summons is usually not a good enough reason to have the matter dismissed. Either the notice will be re-issued or the summons will be amended in court.

When can a car be clamped, seized or impounded?

Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ('the Act') police can clamp, impound, seize and order the forfeiture of motor vehicles used by persons who have committed the following (prescribed) offences:

* does not include a first offence.

See section 3 (interpretation) and Part 2 (Clamping and Impounding of Vehicles); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5 (definition of prescribed offence).

Police can only exercise the power to clamp, seize and impound vehicles if the person driving or operating the vehicle at the time of the offence [s 5(1)]:

The above does not apply where an expiation notice has been issued, unless the notice is withdrawn or the person elects to be prosecuted (see Expiation) [see s 5(2)].

How can a car be seized?

A vehicle can be seized from [s 16(1)]:

The impounding authority (police officer or court sheriff) is empowered to do anything reasonably necessary for the purpose of seizing and moving the vehicle.

Under the legislation they can do any of the following to seize a motor vehicle [s 16(3)]:

How long will my vehicle remain impounded?

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, Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 7]. If an extension is granted it can be for no more than 90 days.

What if my car was stolen and has been impounded as a result of someone else’s actions?

If the Commissioner of Police is satisfied that the motor vehicle was, at the time of the offence, stolen or not lawfully possessed then it must be released [s 8(2)].

What if my car was used by a friend or family member to commit an offence without my knowledge?

The Police Commissioner has the authority to release a clamped or impounded vehicle if satisfied that the offence was committed without the owner’s knowledge or consent [s 8(2a)].

Are there provisions to allow for a vehicle to be released if its impounding will cause financial hardship?

Under section 8(2a) the Police Commissioner can order the release of a motor vehicle if it can be established that severe financial or physical hardship will be suffered by someone other than the offender if the vehicle remains impounded. Such an application must be made by the affected person and not by the offender.

If the car is registered in someone else’s name, will they be contacted?

When a vehicle is impounded or clamped the Commissioner of Police must make reasonable attempts to contact all current registered owners (or, if there are no current registered owners, the last registered owners of the vehicle) to advise them of the action taken and to provide any necessary information in relation to securing the vehicle’s release [s 5(6)].

What happens after the impounding period has ended?

At the end of the clamping/impounding period (and during ordinary business hours) the owner must apply for the vehicle to be released. The vehicle must be released as soon as is reasonably practicable after the application has been made, as long as the relevant fees have been paid. Under section 9(11) of the Act, the police or relevant authority are not obliged to release a vehicle outside of ordinary business hours.

The vehicle can be released either to the registered owner, a person authorised by the registered owner, or a person legally entitled to possession of the vehicle.

[S 9(1)]

Will I have to pay a clamping and impounding fee?

The clamping and impounding fees are generally payable up front, at the time of the vehicle's release. The Police Commissioner has discretion to release a motor vehicle without payment of the fees if the exceptions outlined in s 9(2) of the Act are made out. For details of fees payable see the South Australia Police Fee Schedule website.

In certain circumstances, offenders can request to have their vehicle destroyed for a lower fee, instead of paying the higher amount for clamping and impound fees [see further ss 9(7)-(9)]. Such an application to the Police Commissioner must be made within 7 business days of the impounding of the motor vehicle in question.

Can these fees be refunded?

If the alleged offender is found not guilty of a prescribed offence, or the charge of the prescribed offence has been withdrawn or proceedings have been discontinued, then the fee paid will be reimbursed to the person.

Under what circumstances can a court make an order for a vehicle to be impounded for a longer period?

Where the person charged has been found guilty of or expiated one other prescribed offence within 10 years of the date of the impounding offence, and there is no forfeiture order against the vehicle, the court can make an order to impound for a period not greater than 6 months [s 12].

When can a court make an order for a vehicle to be forfeited?

A court can make an order for forfeiture under the following circumstances:

Any application for forfeiture must be made before the finalisation of the related proceedings (i.e. the offence in respect of which an application for forfeiture has been made).

[S 12]

Will I have the opportunity to explain how the order will affect me?

Where an application is made to the Court for an order to impound or forfeit a vehicle notice of the application must be give to each registered owner of the vehicle and, if the prosecution is aware that any other person has a claim to ownership of the vehicle or is likely to suffer financial or physical hardship as a result of the order, to them also [see s 12(2)].

In addition the court must hear representations from persons affected by the order and has the power to make any orders it considers necessary to deal with this, including deciding not to make an order where it can be shown to cause severe financial or physical hardship or where it would significantly affect the rights of a credit provider [see s 12(3)].

Are there any circumstances where a court can refuse to make an order?

A court can decline to make an order if it is satisfied that:

If the court declines to make the order on the basis of hardship it may order the person to perform up to 240 hours of community service in the alternative.

[Ss 12(1), 13]

Can I be prevented from selling my car once it has been released from impoundment?

In some circumstances a notice may be issued by the Police Commissioner prohibiting the sale or disposal of the motor vehicle until proceedings relating to the impounding offence have been finalised [s 14]. This type of notice may be issued to someone who has committed at least one relevant traffic offence in the last ten years.

Where a notice is served under this section, the owner must not sell or otherwise dispose of the motor vehicle. It is a criminal offence punishable by a maximum penalty of $2,500 or imprisonment of 6 months.

The Court may also require a person who sells or disposes of a vehicle in breach of the notice to pay an amount equivalent to a reasonable estimate of the value of the vehicle to the Victims of Crime Fund [see s 14(4)].

When can a car be sold or otherwise disposed of by the police?

A motor vehicle can be disposed of (by sale or other means):

Where a motor vehicle is sold it will be by public auction or public tender [s 20(4)].

If there are reasonable grounds to believe that the vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of the sale, the vehicle can be otherwise disposed of. This also applies if the vehicle has been offered for sale and was not sold.

In addition, under s 20(5), the Police Commissioner can direct that a motor vehicle be destroyed or disposed of in some other manner, however it is not clear under what circumstances this would occur.

See section 20.

Is compensation payable for loss suffered as a result of the seizure, impounding or forfeiture of a motor vehicle?

No compensation is payable by the Crown unless the impounding authority did not act in good faith, or acted outside its powers [see Summary Offences Act 1953 (SA) s 66H].

Offences

It is an offence to hinder or obstruct a police officer from exercising their powers under this Act [s 18(1)].

Maximum penalty: $2,500 fine or imprisonment of 6 months

It is also an offence to interfere with wheel clamps [s 18(2)].

Maximum penalty: $2,500 fine or imprisonment of 6 months

It is a further offence to interfere with an impounded motor vehicle whilst in the custody of a relevant authority [s 18(3)].

Maximum penalty: $2,500 fine or imprisonment of 6 months

Fees

For details of fees payable in relation to impounding, clamping and forfeiture see the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Fees) Notice issued from time to time.