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Demerit
Point Licence Suspensions and
Appeals
The
demerit points system in
Victoria
When
a driver exceeds the number of
allowable demerit points in a
particular period VicRoads will send a
letter to the person telling them they
are about to lose their licence for at
least 3 months begining about one month
after the date of the letter. If the
driver does nothing, the licence must
be suspended for at least 3 months. If
the driver does not wish to lose his or
her licence, they have the option of
contacting VicRoads and electing to
continue driving on the condition that
if they incurr one or more demerit
points in a defined 12 month period following
their election, then they must lose
their licence for at least 6 months.
Instructions for making the election
are on the VicRoads letter. The driver
should make a note of the time and date
they made the election, and the receipt
number, in case they need to prove they
did so. Any demerit points that have
been counted and relied on when sending
you an option letter can not be used
again to found a fresh option letter,
so effectively they are spent and
can be disregarded in the
future.
You
can check your demerit points status
free of charge by calling VicRoads on
13 11 71, or order a copy of your
demerit points history and a full
driving history report from the
VicRoads
web site
for
about $8.50.
When
are demerit points
recorded?
Demerit
points are recorded by VicRoads for
certain offences when any of the
following events happen:
- the person pays the amount shown on the
infringement notice, or
- the
Infringement Court (A.K.A. PERIN
Court) makes an enforcement order in
default of payment of the fine,
or
- the person is found guilty or convicted
of a relevant offence (including any
conviction resulting from an
infringement notice).
All demerit points are recorded against a person as
of the date of the offence. They are
back-dated onto your record.
How
to avoid getting demerit
points.
If
you have received a Victorian
infringement notice for an offence
which carries demerit points, then
there are ways to avoid getting
points recorded against you:
- for
a camera offence you can nominate the driver if you were not driving (a
"known user statement") or make an unknown driver declaration if you
are unable to determine who was driving (an "unknown user statement"),
or declare that the vehicle or the number plates were stolen (an
"illegal user statement"), or
- elect
to take the infringement notice to court and be acquitted of the charge.
- for
many multiple fixed speed camera offences detected within a couple of
weeks of each other, you may be able to have some of the infringement
notices withdrawn.
Going to Court to avoid getting points
If you win your case at court then you will avoid getting demerit points. Contrary to what some people think, courts
have no power to record demerit points against you, and the court has
no power to prevent points being recorded for a points offence. The
courts
have no discretion about points at all. Victorian legislation tells
VicRoads
to record demerit points for certain offences. If a court finds you
guilty of a demerit point offence, even if no conviction is recorded or
no fine imposed, VicRoads must still record the points as of
the date of the offence. So if your case is in court and you decide to
plead guilty because you hope the court will not record demerit points,
you may be thrilled to find the court does not record demerit points
against you. But your joy will be very short lived. In a few days you
will get a
letter from VicRoads telling you that VicRoads has recorded the points
against you backdated to the offence date.
It is a waste of time asking
a Magistrate not to record points against you because the court has no
power to intervene. The court must decide whether you are guilty or not
guilty of the
offence. It is not concerned about points. If you are guilty of a
demerit points offence, points must follow. If you want to
prevent VicRoads recording the points, you must plead not guilty and be
acquitted. Deciding to plead guilty so the charge is proved and
dismissed is not good enough.
Getting a bond or adjourned undertaking is not good enough. Getting a
diversion is not good enough. Getting a fine without conviction is not
good enough. Begging the Magistrate to give you no points is useless.
You need an acquittal.
Consequences
of incurring 12 or more points for all
licence holders
If
you incur 12 or more points within any
period of 3 years you must
suffer
3 months licence loss unless you elect
to extend the demerit point period for
a further 12 months. In the weeks or
months after you accrue 12 demerit
points VicRoads will send you an option
letter which sets out 3
options:
Options
1 - Elect
to extend your demerit point period. Take this option if you are
willing to commit yourself to not commiting any points offence for the
next 12 months. See the paragraph below about taking the 12 month
option. To make the election you must telephone VicRoads or write
to them within 28 days of the date of the option letter. You should
record the receipt number, and keep records of all your paperwork. If
you miss the the deadline for taking option 1, then your licence will
be suspended under option 2 and you are usually out of luck unless you
can convince VicRoads to accept a late election.
Option
2 - Suffer a licence suspension
period. The number of months of
suspension is calculated by taking your
number of points (say 13), dividing by
4 (13/4=3.25) and rounding down to the
nearest whole number (3 months). To
take this option you simply do nothing.
It is the default option.
Option
3 - Appeal
the calculation of demerit points. If
VicRoads has made an error in the
addition of your points, then you might
want to appeal that issue to the
Magistrates Court. If you lose your
appeal, you are stuck with Option 2
(licence loss). Option 1 is not
available as a fallback position from a
failed appeal. That is why most people
do not lodge an appeal at the option
stage. If there is an error with the
points at the option stage then you
might want to get legal advice before
taking your option, because there are
ways to preserve your appeal rights so
the issue can be argued later in the
event that you breach your 12 month
bond.
The
only other option you have is to see a lawyer to find out if you
can set aside demerit points that have already been recorded against
you.
5 point limit for Probationary licence
holders
Any
person who holds a probationary licence and who commits offences which
accrue 5 or more demerit points during any period of 12 months will
receive a letter from VicRoads which has each of the 3 options listed
in the preceding paragraph. So if you get 5 points in any 12 month
period, you risk losing your licence for 3 months, or you can take the
12 month bond. All of the offences that make up the 5 points must have
been committed while you were a probationary licence holder, and must
be within 12 months of each other. Probationary licence holders are
also subject to the usual 12 points within 3 years rules as well. If a
P plater gets 12 points within 12 months, they should get a suspension
letter based on 12 points, not 5 points.
Taking the 12 Month Option
If you have taken the 12 month option, then you
will need to drive for a period of 12 months without getting any
demerit points at all. This means you must not commit any driving
offence that carries points during that 12 month period. The start and
end date of the 12 month period is chosen by VicRoads and is stated in
the option letter. It usually starts about a week after the deadline
for taking the election. If you commit a demerit points offence during
that 12 month period and demerit points are eventually recorded against
you, then you will be sent a letter telling you that your licence
will be suspended for a period of at least 6 months - or more than that
if you accrued more than 15 demerit points prior to receiving your
option letter. Vicroads can take as long as they like to record the
points and send you the suspension letter. You will not be sent the
suspension letter until you hold a current Victorian driver's licence.
If you have started a 12 month option period and
during that period you receive a second 12 month option letter, you
should take the 12 month option again. It is best not to overlap
a demerit point option period with a demerit point suspension period.
When
will my demerit points be returned to
me?
Demerit points are never returned to
you. They never "drop off your record",
or "expire". Normally you will never
"get them back". They stay on your
record forever and are used to
determine whether you have incurred 12
or more points in any three year
period. You do not lose demerit points.
You accrue them. The only thing that
matters is whether during any period of
three years you have committed offences
that accrued 12 or more points. Some
people tell me they have 3 points left,
or they are down to their last point.
This is incorrect. You do not receive a
package of 12 points every three years.
Rather, at birth you have zero
points. Over your lifetime you
accumulate points. By the time you die
you might have over a hundred
points on your record.
Demerit
points are incurred by a driver as of
the date of the offence, not the date
the point is recorded. So you need to
put all your offences on a line graph
and see if, within any period of 3
years, you committed offences that
accrued 12 or more points. The three
year period could be more than 5 or 10
years ago. The date you pay the fine or
are convicted at court is totally
irrelevant and plays no part in the
calculations. So you can not avoid
accumulating 12 points by delaying
paying the fine or by adjourning your
court case. If your points are more
than three years old they do not
disappear. They will forever form part
of many different three year periods.
If you are a P plater, then you also
have a 12 month period to worry about:
P platers must not get 5 points in 1
year, or 12 points in any 3
years.
Some
people mistakenly think of their
demerit points like a basket of eggs:
they start with a dozen and lose some
over time, and three years after they
lose an egg it will be returned to
them, and if they can delay paying a
fine then they delay losing the egg,
and provided they have at least one egg
left in the basket then they are safe.
The demerit point system is nothing
like that. In reality, you start with
zero points and you count up to a
million. You must treat it as a time
line, and on each date that you commit
an offence that carries points, count
back 3 years from the date of the
offence and see if you have recorded 12
or more points, then count forward 3
years from the date of the offence to
see if you have got 12 of more points.
So you need to cover a 6 year period.
If you do that every time you commit an
offence that carries points, as well as
each occasion when the points are
actually recorded on the system, you
should get it right.
Each time an
option letter is sent, all the points that existed as of the date of
the option letter are treated as used and can not be used again to
create a further option letter. So they will no longer count against
your total. So if you are on 12 points and get an option letter, then
as of the date of the letter those points have been used and you are
effectively back to zero points within a 3 year period. If you commit a
demerit point offence the day after you get the option letter but
before the 12 month option period commences, that point will fall
within a fresh 3 year period and can not breach an option period that
has not yet commenced.
Demerit
points suspensions with other licence
suspension or cancellation
penalties
A
demerit point suspension can not be
served while other licence suspension
or cancellation penalties are imposed
or you remain unlicensed following a
licence cancellation.
If
during a demerit points suspension your
licence is suspended or cancelled for
other offences, then the demerit points
suspension will stop until such time as
you regain a valid drivers licence.
Once your drivers licence is no longer
cancelled or suspended for the other
offence, then the demerit points
suspension will recommence until the
full number of months has been served.
The demerit points suspension period
can not be served concurrently with any
other form of licence loss
period. If you do not have a
current licence, you can not serve your
demerit points suspension.
If
your licence is suspended because of a
speeding offence you will also incurr
demerit points for that offence. If you
then suffer a demerit points suspension
it will not commence until your licence
suspension for the speeding offence is
completed.
Points are recorded against people. Points are not put on your drivers licence. If
you never held a licence you might still incur 12 or more demerit
points in 3 years and you will get a suspension letter shortly after
you next get a Victorian licence or permit.
Interstate
Offences
The
Road Safety Regulations allow VicRoads
to record demerit points against
Victorians who
commit offences in other states. In
those cases, the interstate licence
authority will usually report the
offence to VicRoads and VicRoads will
then record the number of points which
would be applicable as if the offence had
occured in Victoria. So you will incurr points in two states. Also, where an
offence could have resulted in licence
loss in another state if the driver was
the holder of a licence issued in that
state, then VicRoads may suspend the
Victorian drivers licence on the same
basis as if the offence had occured in
Victoria. Drivers who have demerit
points recorded in Victoria for offences incurred
interstate are more likely to find
good grounds to appeal their demerit
point
suspensions.
Demerit
Points Appeals
s.26AA Road Safety Act
Any
person who is faced with licence
suspension arising from demerit points
is entitled to appeal to a Magistrates
Court against the suspension of their
drivers licence. The appeal must be
lodged with the court no later than 28 days
after the date on which the licence suspension is scheduled to commence.
In
a demerit points appeal, it is not possible to argue that you are not
guilty of the offence that caused demerit points to accrue. If you wish
to challenge your liability for the offence, it is necessary to
challenge the charge/infringement before any demerit points accrue.
After points accrue it is sometimes possible to reverse the points and
defend the offence in court. In demerit points appeals VicRoads lawyers will
come to court and attempt to justify the basis upon which it has
recorded demerit points against you. The grounds of appeal are limited
by s.26AA of the Road Safety Act. Generally, you need to show that
VicRoads has made an error. It is not easy to avoid a demerit points
suspension by appealing to the court. The court can never take into
account the reason why you accrued points or why you so badly need your
licence. Lodging an appeal just so you can tell the Magistrate a
sob story will aways be a complete waste of your time and money. So too
would lodging an appeal so you can argue that you were not driving your car
when it triggered a camera fine back in 2009.
There
is usually a couple of months wait
before an appeal is heard. A copy of
the appeal notice must be served on
VicRoads. The case is listed initially
for a mention date. It will then be
adjourned for a hearing date. Pending
the appeal the driver's licence is not
suspended. VicRoads will engage lawyers
to oppose the appeal. It common for
VicRoad's lawyers to write to
appellants and make threatening claims
for legal costs unless the appeal is
withdrawn. In reality, the court can
order VicRoads to pay your legal costs
if your appeal is successful, and may
allow some costs (often in the range of
$750.00 to $2,000.00) in favour of
VicRoads if the appeal is dismissed. If
the appeal is dismissed, the court will
decide the date when the licence
suspension commences.
If
VicRoads has recorded demerit points
against you incorrectly or when they
were not required by law to do so, then
your appeal should be
successful.
How
can demerit points be
removed?
It
is possible to remove demerit points if
you can undo the event that caused the
points to accrue. If points accrued
because you paid a fine, then they can
be removed only if the fine payment can
be reversed, which is not usually
possible. If you have incurred demerit
points as a result of a court order
(either Infringement Court,
Magistrates or County Courts), it may
be possible to set aside the order that
caused the points to be incurred. Time
limits apply to setting aside orders so
you need to act promptly. If the court
order is set aside you should expect to
defend the driving charge in court if
you want to prevent the points
returning. In cases where you have
received demerit points after you
ignored the fine and did not pay it, it
is often possible to reverse the
points. It is generally not possible to
reverse demerit points if you have paid
the penalty on a fine, although owner-onus offences are an exception to that. If you wish to
remove demerit points, set aside a
court order or appeal against demerit
points you will greatly improve your
chances if you obtain competent legal
assistance.
There
are often ways to avoid losing your
licence or to avoid losing demerit
points. If you pay the penalty on an
infringement notice, or on any of the
follow-up notices, you will incur any
demerit points applicable to the
offence. You can not un-pay the
penalty, although it is sometimes
possible to nominate the driver even
after payment. Therefore, if in doubt,
don't pay the penalty. Where the
penalty has not been paid it is usually
possible to reverse demerit points
recorded against you. If it has been
paid, then it is much
harder.
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