Updated: Sep 6
We discuss, the elements, defences and penalties to Drive Whilst Disqualified?
In Victoria, license disqualification or suspension occurs either by administrative action (Vic Roads) or judicial action (court ordered penalties resulting from mandatory suspension for speeding, drink/drug driving offences).
The offence of Drive Whilst Disqualified is prosecuted under Section 30 of the Road Safety Act 1986 (Vic)(RSA)
There was a time when this offence carried a mandatory requirement for imprisonment (2nd offence). Law reform resulted in the possibility of mandatory imprisonment being imposed for a 2nd offence, however the offence remains one of the more serious offences under the RSA.
Elements to Drive Whilst Disqualified
The Offence has the following elements:
- A person drives a motor vehicle.
- On a highway
- while their authorisation to drive is either suspended or disqualified
Penalties for Drive Whilst Disqualified
Section 30 prescribes a maximum penalty of 240 penalty units or 2 years imprisonment.
Under Section 28 of the Road Safety Act 1986 (Vic), the Court has a discretion to impose a period of license suspension for this offence.
Where a person is charged with a 2nd offence of Drive Whilst License Disqualified within a period of less than 2 years, a Court is more likely to exercise its discretion to impose a suspension period.
Defences to Drive Whilst Disqualified
Perhaps the most frequent defence argued for Drive Whilst Disqualified is a defence of honest and reasonable mistake of fact.
A person wanting to argue this defence must establish 2 things:
- an honest belief that on the day and time of the offence, the accused honestly believed that their license was not suspended; AND
- this honestly held belief was based on reasonable grounds.
A successful defence based on honest and reasonable belief will always turn upon the particular facts that give rise to whether the honestly held belief was on reasonable grounds.
Simply informing the police that a suspension notice was not received will not without more, support a defence.
The driving must also occur on a 'highway' for the purposes of prosecuting this offence. The Road Safety Act defines a 'highway'.
In other circumstances, a defence of necessity may be available.
Contact our office for an assessment
The severity of this offence will depend upon other factors such as whether other traffic offences have been charged arising from the one incident (for example, dangerous driving, careless driving, drink/drug driving). Other aggravating features include whether the offence was committed for a first occasion or a subsequent.
The Court will consider the issue of whether to impose a period of suspension for this offence in addition to other penalties described above.
Call our office for an assessment of your situation on 03 9668 7600 or contact us by email.