Do You Need to Appeal Your Licence Suspension?
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What are your options?
In Melbourne, under the Road Safety Act (RSA), section 85S provides a framework for individuals to appeal an immediate licence suspension.
If your driver’s licence has been suspended under certain conditions, this section outlines how you can challenge that decision in the Magistrates’ Court.
Immediate Licence Suspensions are issued by Victoria Police for medium to serious breaches of traffic law including but not limited to: high range or repeat drink driving, culpable driving or dangerous driving causing death or high range speeding. You will know you have received an Immediate Licence Suspension because you will be given a blue piece of paper by Police which is titled Notice of Immediate Driving Ban.
Important Note: If you have been issued with a speeding infringement or you have a drink driving matter which attracts a mandatory loss of licence or if you are going to lose your drivers licence due to exceeding demerit points, you CANNOT appeal this situation under section 85S unfortunately.
What is the Appeal Process Under Section 85?
If your licence has been immediately suspended, you have the right to appeal to the Magistrates’ Court under Section 85S of the RSA.
The primary test for this appeal is that you must demonstrate exceptional circumstances exist that justify the cancellation of the suspension. In other words, you need to show why the suspension should not stand in light of your unique situation.
What Are "Exceptional Circumstances"?
The term “exceptional circumstances” is not specifically defined by the RSA, but it refers to factors that are unusual, special, or out of the ordinary—essentially, reasons that make your case different from the typical situation. To determine whether you meet the exceptional circumstances test, you would need to consider your specific circumstances in consultation with a traffic lawyer.
Some examples of exceptional circumstances might include:
- Sole caregiver:
You are the only person who can care for a disabled child or a terminally ill relative.
- Weak case:
The case against you is particularly weak or lacking sufficient evidence.
- Family or financial hardship:
Losing your licence would have a severe impact on your livelihood or the well-being of your family members.
The appeal is not based on what is “unusual” but on something that stands out as compelling in the context of your case.
Key Factors to Consider:
- No Cross-Examination of Offence:
Under Section 85U, the Magistrate hearing the appeal cannot examine or cross-examine the details of the alleged offence that led to the licence suspension, unless the defence lawyer deems it necessary.
This is to prevent the appeal process from turning into a re-hearing of the original charge.
- Fair Trial Protections:
Section 85V protects the accused’s right to a fair trial. If you’re appealing a licence suspension, any evidence presented during the appeal cannot be used in your trial for the underlying charge.
This ensures that the appeal remains separate from the main legal proceedings.
Why Should You Appeal?
An immediate licence suspension can have serious consequences on your day-to-day life, including:
- Losing your ability to work, especially if your job depends on driving.
- Impacting your ability to care for family members or fulfill personal obligations.
- Financial strain due to lack of transportation.
Given the potential impact of an immediate licence suspension, it is important to carefully consider whether exceptional circumstances apply to your case and to seek professional advice.
What to Do if Your Licence is Suspended:
-
If your licence has been suspended under Section 85 of the Road Safety Act, it’s important to consult with a traffic offence lawyer. A lawyer at MK Law can help you understand your legal options, prepare your case for the Magistrates’ Court, and present a compelling argument that justifies the cancellation of your suspension based on your unique circumstances.
Common questions about appealing a licence suspension
Yes. Under section 85S of the Road Safety Act 1986, anyone whose licence or learner permit police have suspended immediately can appeal to the Magistrates’ Court, which confirms or cancels the suspension. That covers drink driving, drug driving, excessive speed and other serious driving charges. It does not cover demerit point suspensions, suspensions for unpaid fines, or the suspension that follows a speeding fine you did not object to.
By written notice to a registrar of the Magistrates’ Court and to the Chief Commissioner of Police, given at least 14 days before the appeal begins, under section 85S of the Road Safety Act 1986. For a drink driving, drug driving or speeding suspension, the notice sets out the exceptional circumstances you rely on. After a charge such as culpable driving, it gives your reasons for saying you are not an unacceptable risk to road safety. The court has an appeal form.
For a drink, drug or speeding suspension, you have to satisfy the magistrate that exceptional circumstances exist which justify lifting it, under section 85T of the Road Safety Act 1986. The Act does not define them. After a culpable driving or similar charge, you have to satisfy the magistrate instead that you are not an unacceptable risk to road safety.
Police can suspend your licence by written notice for the drink driving, drug driving, speeding and serious driving offences listed in Part 6B of the Road Safety Act 1986. The suspension starts as soon as you are given the notice. Unless it is cancelled earlier, for example on appeal, it lasts as follows:
| What happened | How long the suspension lasts |
|---|---|
| Charged with drink driving at 0.10 or more on a full licence, or 0.07 or more on a learner permit or probationary licence | Until the charge is decided or withdrawn |
| Charged with refusing a breath test or breath analysis, failing to stop at a breath testing station, or a drink or drug driving offence that would be a repeat offence | Until the charge is decided or withdrawn |
| Charged with driving while impaired by a drug, or refusing a drug impairment assessment, a blood or urine sample requirement, or an oral fluid test | Until the charge is decided or withdrawn |
| Given a breath or blood alcohol certificate showing the readings above, before any charge | Up to 12 months, or the shorter period the Act sets for that reading |
| Charged with speeding 45 km/h or more over the limit, or 145 km/h or more in a 110 km/h zone, caught by a speed detector | Until the charge is decided or withdrawn |
| Given an infringement notice for that speeding | 12 months (6 months for 145 to under 155 km/h in a 110 km/h zone), or until the infringement’s own suspension takes effect, if sooner |
| Charged with culpable driving, dangerous driving causing death or serious injury, or certain other serious driving offences | Until the charge is decided or withdrawn, and only if a sergeant or more senior officer is satisfied you are an unacceptable risk to road safety |
No. Lodging an appeal does not pause the suspension, and your licence has no effect until the suspension ends. Section 85C of the Road Safety Act 1986 says a suspension after a drink or drug driving charge stays in force until the charge is decided or withdrawn, or the suspension is cancelled on appeal. The other police suspensions end in the same way or after a fixed period.
Only if the points were recorded or added up wrongly. That is the only ground for the appeal to the Magistrates’ Court under section 46H of the Road Safety Act 1986. You must appeal within 28 days of the suspension starting, and the suspension continues while you wait unless the court orders a stay.
A suspension police gave you on the spot, with a fine for speeding 45 km/h or more over the limit, can be appealed to the Magistrates’ Court. The suspension that comes with the fine itself cannot. Under section 89A of the Road Safety Act 1986, a notice for speeding 25 km/h or more over becomes a conviction 28 days after its date unless before then you object in writing or nominate the driver. If you do neither, that suspension follows. If you object and a court finds you guilty, you still face a minimum suspension.
Not through the appeal for police suspensions. Fines Victoria directs this suspension as a sanction under section 89 of the Fines Reform Act 2014, so you deal with Fines Victoria. You can ask it for an enforcement review on an eligible ground, but the suspension may stay in place while the review is decided. The driving while suspended page explains when a suspension for unpaid fines ends.
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- Careless Driving
- Dangerous Driving
- Driver Duty Failures at Accidents
- Driving whilst Disqualified
- Driving whilst Suspended
- Unlicenced Driving
- Improper Use of Motor Vehicles
- Failing to Nominate Driver of Vehicle
- Impoundment of Motor Vehicles
- Exceeding Speed Limits in School Zones
- Reckless Conduct Endangering Life Or Serious Injury
- Culpable Driving Causing Death
- Dangerous Driving Causing Death or Serious Injury
- Dangerous or Negligent Driving Whilst Being Pursued by Police
- Infringement Warrants and Unpaid Fines
What happens next?
The immediate suspension of a licence under the RSA can be a major disruption to an individual’s life, but there is a legal process available to challenge such a decision.
If you believe that exceptional circumstances exist that would warrant the cancellation of your suspension, it is crucial to consult with an experienced traffic lawyer who can guide you through the appeal process effectively.
An expert at MK Law can help you. They can tailor a defence relevant to your case and guide you through the process.
Do not delay, contact MK Law today on 1800 130 120, for confidential expert advice.
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