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Immediate Licence Suspensions

 

In many drink driving cases the police have the power to suspend your driver's licence "on the spot" or prior to the hearing of a court case. The suspension notices are issued pursuant to s.51 Road Safety Act 1986.

This power is usually used with the more serious drink drive offenders and repeat offenders. The police can serve the suspension notice on any person who:

  • has produced an alcohol reading of 0.10% or more,
  • being a P plater has produced a reading of 0.07% or more,
  • being 26 years of age or less has a reading of 0.07% or more,
  • has been charged with refusing to comply with a police requirement such as undergoing a breath test or a blood test, 
  • is accused of any drink driving related offence after being found guilty of an earlier drink driving or drug driving related offence within the past 10 years.
  • is charged with a drug driving related offence.

Police can not serve an immediate notice of licence suspension on you if you do not hold a current Victorian drivers licence. If you hold a Victorian drivers licence that is under suspension for other reasons you can still be served with a s.51 Notice of Immediate Suspension. Except in the case of demerit point suspensions, you will then serve the two suspensions concurrently.

Once a suspension notice is handed to the driver their licence is suspended pending the determination of any charges that have been or will be laid in respect of the offence. Generally this means your licence is suspended until your court case finishes, which can take many months. If the charge is found proved, the court will cancel your licence for at least the minimum period applicable to your offence. Any time you have spent off the road under the suspension notice must be deducted from your sentence as time already served. If the charges are dismissed, there is no compensation for time spent off the road.

A suspension notice can be served with an infringement notice, or with charges or with nothing at all. If it is served with an infringement notice and you do not object to the infringement notice, you licence is suspended for 28 days and then cancelled for the balance of the period stated on the infringement notice. If the notice is served with charges your licence is suspended until your court cases ends. If the notice is served with nothing at all, the notice needs to state on it how long the suspension is for. In most cases it will be 12 months. During the suspension period the police can serve charges on you. Once that happens the suspension period is extended until the charges are dealt with at court. If the police do not hand you charges personally during the suspension period, then the suspension comes to an end at the expiration of the suspension period and you will be able to go to VicRoads and get your licence back.

In many cases it is possible to resume driving after being served for a Notice if Immediate Suspension. One option is to lodge an appeal to a Magistrates' Court against the immediate suspension notice (see s.51(10) Road Safety Act 1986). A Magistrate can cancel the suspension notice if the court accepts that exceptional circumstances exist which justify doing so. The circumstances must be unusual or unexpected, or raise a real possibility that the driver could defend the matter successfully.  Needing to drive for work or to pick up the kids from school is not regarded as an exceptional circumstance. At least 14 days notice must be given to the police and the court prior to the hearing of the appeal. 

Drivers should seek legal advice in conference if they have received a notice of immediate suspension and they want to resume driving as soon as possible. Only after a conference will it be possible to determine whether or not it is worth your while to appeal against the s.51 Notice of Suspension, or perhaps take some other action. Appealing a suspension notice involves writing a notice of appeal setting out the grounds of appeal including particulars of exceptional circumstances, filing the notice at court, serving all documents on the informant and the prosecution, and then attending court 2 weeks later to argue the case before a Magistrate. You should expect to pay about $1,500 in legal fees to appeal against a notice of immediate suspension.  An appeal will not be recommended to you unless you have a reasonable prospect of success.

 

History of s.51 Immediate Suspension laws

The Immediate Suspension laws have changed considerably over the years. In 1986 a s.51 Notice of Immediate suspension could be served on a driver only after the police had filed charges with a court and served a charge and summons on the accused. So it often took weeks to get an accused drink driver off the road.

In 1989 the police were given power to issue and serve a charge and summons on the driver in the booze bus or police station, without first filing copies of the papers at a court, and this allowed them to get dangerous drivers off the road without any delay.  

By 2002 the hassel of having to complete and serve a charge and sumons as a pre-condition to serving drivers with a s.51 Suspension Notice in the booze bus caused the police to seek greater powers. The legislation was then amended by inserting s.51(1B) to allow the police to serve a Notice of Immediate Licence Suspension without first starting a court proceeding (provided  a breath or blood test result over a particular concentration had been obtained).  Because the police have 12 months within which to commence the court proceeding, the initial suspension period can not exceed 12 months. Usually the initial suspension period stated on a s.51(1B) Notice is 6 months or 12 months - even if the driver is facing a much longer period of cancellation later at court. If a court proceeding is commenced within the suspension period, then the suspension period is automatically extended until the court case is concluded.  S.51(1B) does not apply to "refuse" cases.

Prior to 2009, Immediate Suspension Notices could not be served on first offenders with readings less than 0.15%. First offenders with readings less than 0.15% usually get infringement notice and do not get taken to court. Since 2009 the police have power to serve a s.51 Notice on anyone who gets an infringement notice with an alcohol reading of 0.10% or more. So if your reading is between 0.10% and 0.15% expect to get an infringement notice and a s.51 Suspension notice. This makes the decision as to whether or not to object to the infringement notice all the more harder.

 

Related Pages:

Breath Tests
Blood Tests
Drink Driving Penalties
Going to Court
 

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