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Victorian Demerit points law, licence suspension and the legal options for drivers.

 Demerit Point Licence Suspensions and Appeals


Demerit Points System in Victoria
How Demerit Points are recorded
The Option Letter
Probationary and Learner Permits
Ways to avoid incurring demerit points
Taking your offence to court
Taking the 12 month option
Breaching your 12 month option

Delaying your demerit points
Will you get your points back?
Appealing against Demerit Points suspensions
Removing demerit points
Demerit Points suspensions while your licence is cancelled
Interstate issues and non-Victorian drivers
List of Demerit Points Offences
Getting Legal Assistance


The demerit points system in Victoria

When a person has exceeded 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 beginning about one month after the date of the letter. If the person does nothing, the licence must be suspended for at least 3 months. If the person 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 incur 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 points demerit points history and a 5 year  history report from the VicRoads web site for about $9.70.

 

How are demerit points recorded?

VicRoads is obliged to record demerit points against a person for an applicable offence when it is informed that any of the following events happen:

  • the person pays the penalty shown on the infringement notice, or
  • the Infringements Court makes an enforcement order in default of payment of the fine, or
  • the person is found guilty of a relevant offence by a court, or
  • a conviction is recorded as a result of some infringement notices, or
  • the court grants diversion of the charge.

All demerit points are incurred on the date of the offence. You can delay paying your fine for as long as you like - or let your court case drag on for years - but when the points are eventually recorded by VicRoads they are given the offence date. The date of payment is irrelevant.  Points are recorded against people, not against licences, so points do not attach to your drivers licence. Points are recorded on a VicRoads register against a person, not against a licence, so you can accrue points even if you do not hold a Victorian drivers licence.

 

Too many demerit points - The 12 Month Option Letter

Consequences of incurring 12 or more points

If you incur 12 to 15 demerit 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. For every 4 points over 12 you get an additional month, so if you incur 19 points within 3 years you will get a 4 month licence suspension.  I have seen people get sent an option letter after they have accrued more than 80 demerit points. In the days or weeks after you accrue 12 or more 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 committing 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 on the 1300 number stated on the option letter. You should record the receipt number on the option letter, and keep all your paperwork. If you miss the deadline for taking option 1, then your licence will be suspended under option 2. If that happens, don't bother contacting me - you are too late to take option 1 unless you can convince VicRoads to accept a late election.

Option 2 - Suffer a licence suspension period. The number of months of licence suspension is calculated by taking your number of points (say 17), dividing by 4 (17/4=4.25) and rounding down to the nearest whole number (4 months). To take this option you simply do nothing. It is the default option. I have seen people incur over 80 points within a 3 year period and then get an option letter that imposes 20 or more months of licence suspension. In a case like that the best course is to take the 12 month option and then not drive at all for 12 months in order to ensure you avoid getting a further point which would result in a 40 month licence suspension. Not driving for 12 months is better than taking the 20 months 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), so often it is best to take the 12 month option first and appeal the addition of your points later if you ever breach the 12 month option. If VicRoads has not made an error in recording your points, then there is no right of appeal.

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 or take any other action to avoid licence loss.

 

Special rules for Probationary licences and Learner Permits

Any person who holds a probationary licence or learners permit and who has committed offences which accrue 5 or more demerit points within 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 - even if some of those points were incurred while your were not licenced - you risk losing your licence for 3 months, or you can take the 12 month option. All of the offences that make up the 5 points need to have been committed at a time when you did not hold a full drivers licence, and must be within 12 months of each other. 

Learners and Probationary licence holders are also subject to the usual 12 points within 3 years rule as well. If a P plater gets 12 points within a month or two, they should get a suspension letter based on 12 points, not 5 points, but that depends on how close together the points are recorded. You could get another option letter if 5 more points are incurred after the first option letter is sent.

The 5 points in 12 months rule applies to all offences committed prior to you obtaining a full drivers licence even if you graduated to a full licence one day after the offence that gave you your 5th point. Likewise, if you hit 5 points and then elected to take the 12 month option period, it does not cease being a 12 month option period just because you graduated to a full licence half way through it.

 

Ways to avoid incurring 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:

  1. you could elect to take the infringement notice to court and be acquitted of the charge, or
  2. for a camera offence you can nominate the driver or person responsible for the vehicle if you were not driving (a "known user statement") or make an unknown driver declaration if you are unable to determine who was responsible (an "unknown user statement"), or declare that the vehicle or the number plates were stolen (an "illegal user statement"), or
  3. if you have 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, or
  4. if you have not incurred any demerit points in the 2 years prior to getting a 1 point speeding ticket, or had no points in the three years prior to a speeding offence 10kmh to 14kmh over the limit, then you should ask the penalty review board at the traffic camera office to withdraw the infringement notice and issue you with a warning instead.

If you have a demerit point problem you should consider getting legal advice at the earliest opportunity by making an appointment to see me. The longer you wait the harder it will be to help you. You will need to bring a print-out of your last 5 years of demerit points history (obtainable from VicRoads), plus copies of all infringement notices that you still have, plus any correspondence you have received from VicRoads regarding your points. In many cases I succeed in helping people avoid licence loss.

 

Going to Court to avoid demerit points

If you are acquitted of your traffic offence 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 that hears your case has no power to prevent points being recorded.  Victorian legislation requires VicRoads to record demerit points in respect of certain offences. If a court finds you guilty of a demerit point offence, even if no conviction is recorded or no fine imposed or even if a diversion is allowed, then VicRoads must record demerit 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 magistrate does not give you any points at all. 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. The court  decides whether you are guilty or not guilty of the offence. It has no power over the points.  If you want to avoid getting demerit 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 or to let you keep driving is useless, no matter how depressing or impressive your sob story is. You need an acquittal.

If the court finds your charge proven and dismissed under s.76 Sentencing Act VicRoads is likely to record the points. There is a good argument that VicRoads does not have power to record points for a s.76 dismissal, so you might want to get legal advice about challenging those points if they are recorded.

It is impossible to ask anyone to excuse you from serving a demerit points licence suspension period. If you have a points problem, then you should seek legal advice about the valid options that might assist you. If you are hoping to apply for a work licence or special circumstances licence then please read my page about how to apply for a work licence.

 

Taking the 12 month option.

If you have elected to take the 12 month demerit point extension option, then you have agreed not to commit any offence that incurs demerit points during the 12 month period set by VicRoads in the letter sent to you. So, during that 12 month period you must not commit any driving offence anywhere that carries points. Any demerit points that have been counted and relied on to send 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. Any offences you commit outside the 12 month period, regardless when the points are recorded, can not breach your option and are not relevant to your 12 month option period. Those points simply go on your record, like all demerit points do. You can commit an offence the day prior to the commencement of the 12 month option period and it will have no effect on your option period regardless when the fine is paid or when the points are recorded.

If you are guilty of a demerit points offence committed during the 12 month demerit point extension period, then you will receive a notice of suspension of your licence.  It does not matter how long it takes for you to be found guilty of the points offence, nor does it matter how long it takes for the points to get recorded against you. All that matters is whether or not you committed a relevant points offence during the 12 month option period.

The start and end date of the 12 month period is chosen by VicRoads. The period 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 they decide when to send you the option letter. 

You can not be sent any option letter unless you hold a current Victorian driver's licence. So if you just lost your licence for 4 years for drink driving and also got 3 points for careless driving, you won't get any option letter or suspension letter resulting from those points until you have completed the licence restoration process and obtained a Victorian licence at the expiration of the 4 years disqualification period.

If you commence a 12 month option period and during it your Victorian licence is cancelled or suspended or exchanged for an interstate licence, the 12 month option period continues to run. This means you are still at risk of breaching your 12 month option if you commit any points offence during the 12 month period. The breach will usually be activated next time you hold a Victorian licence although VicRoads now has power to disqualify people who do not hold any Victorian drivers licence.

It is possible to receive an option letter, take the option, and then prior to the 12 month period commecing a further 12 points (or 5 points for P platers) is recorded and a second option letter is sent to you.  In this situation, you should take option 1 on each option letter, or option 2 on each, but do not ever mix option 1 with option 2.  It is a big disadvantage to overlap a 12 month option period with a 3 month suspension period. Likewise, if you receive a demerit points suspension letter and at the same time you receive an option letter you will be much better accepting the suspension period on the option letter rather than taking one as a suspension and the other as a 12 month option.


Breaching your 12 month option.

If you commit a demerit points offence during the 12 month period that VicRoads has set as your extended demerit point period and points are recorded for that offence, VicRoads will send you a licence suspension notice. The period of suspension is usually 6 months, but can be 8, 10 or more months if you had a large number of points at the time you took your option. VicRoads' letter states that your licence suspension will commence 4 weeks after the date of the letter. There is no way of avoiding that suspension unless you can cancel points that have been recorded against you, or you cease to hold a Victorian licence.

Delaying the recording of demerit points

Some people think that they won't breach their 12 month option if they delay payment of their fine or delay their court case until after the end of their 12 month option period. That is incorrect.  Surprisingly the people who designed the demerit points system are not as stupid as you hoped. Delaying your court case will not change the date on which you committed your offence.  If you delay paying your fine or delay your court case for years it will simply delay the commencement of your licence suspension period.

 

Getting your points back

In Australia it is impossible to lose demerit points. So they are never coming back.  You get points, not lose them.  Many people, even the police, do not understand this important distinction. You will fall into error when working out your points situation if you think your points are going to come back after 3 years.

When you accrue demerit points they will stay on your record forever. 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, because there is no limit to the number of points you can incur.  

If you put all your offences on a line graph you can see what points offences you committed within 3 years of each other. The three year period could be 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 5 or 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 their demerit points are like a carton 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 carton 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 incurred 12 or more points in that period, 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 are recorded 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. If you receive an option letter, then as of the date of the letter all the points mentioned in that option letter have been used and you are most likely back to zero points within a 3 year period. If you commit a demerit point offence one week after you get the option letter but before your 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 Appeals s.46H 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. There are very limited grounds of appeal. You can appeal only if VicRoads has wrongly recorded demerit points against you. You have a right of appeal whenever you receive a letter from VicRoads that informs you that your licence is about to be suspended because of demerit points. So you can appeal when you receive the option letter and also when you breach your 12 month option.  

The appeal is lodged at a Magistrates court and there is no court fee. The deadline for lodging it is 28 days after the date that the licence suspension commences. When you file your appeal notice you will also want to file an application for permission to drive pending the hearing of the appeal - s.46I RSA.  A Magistrate can stay the suspension of your drivers licence only if the Magistrates accepts that your appeal has reasonable prospects of success. However, if you have had your licence cancelled or suspended for any reason within the 3 years prior to the hearing of your application, the court must not grant the stay even if it accepts it is highly likely that VicRoads has totally stuffed up your points! 

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.  It is not possible for the court to take into account the circumstances of your offences, or to determine whether or not you were driving at the time of an offences, or to take into account how badly you need your licence, or to take into account how you are actually a top bloke and always a very careful driver, or for the court to impose any fine or other type of penalty as an alternative to licence suspension. The only things a Magistrates Court is allowed to do at a demerit points appeal is to verify the calculation of your points. Most of the time VicRoads does a very good job at calculating and recording your demerit points.

If you wish to challenge your liability for a points offence, it is important to challenge the charge/infringement before demerit points are recorded. 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 VicRoads has recorded demerit points against you. It is not easy to avoid a demerit points suspension by appealing to the court. 

Too many people email me with lame questions about demerit points appeals so I will explain it very clearly one more time just for those of you who are forgetful: neither VicRoads nor the court can ever take into account the reason why you accrued points or why it's important for you to have a licence or what a top bloke you really are. The only thing that matters is whether the points have been recorded correctly. Lodging an appeal so you can tell the Magistrate about your hard luck story will always be a complete waste of time and money.

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 might then be adjourned for a hearing date. VicRoads will engage lawyers to oppose the appeal. It is 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 $800.00 to $2,000.00) in favour of VicRoads if your appeal is dismissed. If the appeal is dismissed, the court will decide the date when the licence suspension commences. You should seek legal advice before lodging a demerit points appeal.


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 Infringements 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 possible to reverse the points if you can set aside the Final Demand . It is usually not possible to reverse demerit points if you have paid the penalty on an infringement notice, although owner-onus camera 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 sometimes possible to reverse demerit points recorded against you. If the fine has been paid, and it is not a camera fine, then it is much harder.


Cancelled, suspended or expired licences and your demerit points suspension.

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 (the exception is that you can serve two demerit point suspension concurrently).  If you do not hold a Victorian drivers licence you can not serve a demerit points suspension.  You can incur demerit points without holding a Victorian licence, but you can not suffer licence suspension unless you hold a current Victorian licence.

If during a demerit points suspension your licence is suspended or cancelled for any reason, 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, then the demerit points suspension will recommence until the full number of months has been served. 

If your drivers licence expires while you are serving a demerit points suspension the suspension continues to run even though you no longer have a licence. If you drive a vehicle during that period it is unclear whether your offence is driving while disqualified or driving while unlicensed - the s.18 offence is preferable to the s.30 offence.

A demerit points suspension period can not be served concurrently with any other form of licence loss period. If you do not have a current Victorian licence, you can not serve your demerit points suspension - it will be on hold until you next get a Victorian licence.

If your licence is suspended because of a speeding offence committed prior to 1 November 2018 you will also incur 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. Since 1/11/2018 demerit points are not recorded for licence loss offences.

It is possible a driver to serve two demerit point suspension periods simultaneously, or serve two 12 month option periods simultaneously. If you receive two option letters very close together, or an option letter with a suspension notice close together, it is best to get legal advice about how to handle it.

Points are recorded against people. Points are not put on your drivers licence.  People who have never held any drivers licence can still incur 12 or more demerit points in 3 years and they will get a suspension letter shortly after they next get a Victorian licence or permit.

 

Interstate and Foreign Jurisdictions

The Road Safety (Drivers) Regulations require VicRoads to record demerit points against every person who commits a demerit points offence, whether or not they hold a licence.

Overseas Licence Holders

It is possible for you to be disqualified from driving in Victoria as a result of demerit point accrual if you do not hold an Australian drivers licence.

If you are using a licence issued outside of Australia you are subject to the usual 12 demerit point limit if you are aged 22 or more, and to the Probationary licence holder 5 point limit if you are under 22 years old. If you reach your point limit, then VicRoads will disqualify you from driving in Victoria for a period of 3 months - see s.46A Road Safety Act. The usual demerit point option notice is not issued to people who do not hold a Victorian licence.  Their only options are to stop driving in Victoria for 3 months or obtain a Victorian licence prior to the disqualification period commencing.


Interstate Licence Holders

If you commit a demerit points offence in Victoria while holding an interstate licence, then your local state's driving authority will record the same demerit points against you that would have been recorded if that offence had been committed in your home state (provided it is a points offence on your home state). So you will have points recorded against you in Victoria as well as in your home state.  An interstate licence holder who commits a lot of demerit point offences in Victoria will be dealt with in their home state. VicRoads can not suspend an interstate licence or disqualify that driver.  If you transfer your Victorian licence to an interstate licence prior to a VicRoads demerit points suspension commencing on your Victorian licence the licence suspension will not come into effect until you next obtain a Victorian licence. It is not possible to transfer a licence which is under suspension.


Victorian licence holders driving interstate

If you commit a demerit points offence while driving interstate on a Victorian licence, you will incur points in the other state as well as in Victoria. The only way you can have demerit points recorded against you in another state is to commit driving offences in that state. So you could have 6 points on your Victorian register and 4 points on your Qld register and 2 points on your NSW register. If an offence carries 3 points in NSW but the same offence in Victoria carries no points then VicRoads can not record any points for that offence. NSW will give you double points on public holidays but VicRoads can't record double points. VicRoads has sometimes recorded the incorrect number of points in Victoria for offences committed interstate.

Demerit Point Offences for light vehicles
for offences committed since 1.11.2018

No. of Points
  • Stopping on a rail crossing or disobey rail crossing signals.
  • Using a mobile phone while driving
4

  • Exceed speed limit by 10km/h or more but less than 25km/h
  • Disobey traffic lights, signs or police directing traffic
  • Fail to give way or stop
  • Drive without wearing a helmet (motorcycle), or a properly adjusted and fastened seat belt, or with an unrestrained passenger.
  • Drive on wrong side of double lines, or divided highway
  • U-turn or overtake across a solid white line.
  • Disobey one way sign or no entry sign
  • Risk colliding with alighting, boarding or waiting tram passengers
  • Careless driving
  • Driving with an obscured or improperly displayed number plate
  • Failure to display P plates
  • P Plater driving probationary prohibited vehicle
  • Learner riding a motor cycle that is not on the LAMS list
  • Learner riding with pillion passenger
  • Driving in contravention of a major defect notice.
3

  • Improper overtaking or passing
  • Turn or stop without signalling
  • Turn improperly
  • Fail to keep left
2

  • Exceed speed limit by less than 10km/h
  • Driving contrary to a minor defect notice
  • Fail to dip headlights
  • Driving at night without headlights or tail lights on
  • Follow too closely
1

* BAC = Blood Alcohol Content

 

There are often ways to avoid losing your licence or to avoid losing demerit points. If you pay the fine, you will incur any demerit points as of the date of the offence. You can not un-pay the fine. Therefore, if in doubt, get legal advice before you pay the fine.

Tow Truck drivers and operators are subject to a separate demerit points register.


Getting Legal Advice

Sean Hardy represents drivers with demerit points problems, especially those who have incurred excess demerit points and wish to appeal the fact that points have been recorded against them, and also represents drivers who wish to challenge their licence suspension resulting from demerit points. If you have a demerit point problem you should be getting legal advice at the earliest opportunity by making an appointment to see me. Do not wait for any court papers to arrive. Call 9225 8062 if you wish to obtain legal assistance. You will need to bring with you a recent demerit points history (obtainable from VicRoads), plus copies of all infringement notices that you still have, plus any correspondence you have received from VicRoads regarding your points.


 

Related Pages:

Fines
Infringement Court
Court Process

Related Links:

VicRoads Demerit Points Page

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