Can I Appeal an On-the-Spot Driver Licence Suspension?

by Ugur Nedim

Police in New South Wales are empowered to immediately suspend a person’s driver licence in certain situations.

This power is contained in section 224 of the Road Transport Act 2014, which provides that a police officer may issue an on-the-spot suspension for:

  • Driving offences causing death or grievous bodily harm,
  • Drink driving offences (also known as driving with a prescribed concentration of alcohol),
  • Driving under the influence of alcohol or other drugs (or ‘DUI’),
  • Street racing,
  • Aggravated burnout,
  • Refusing or failing a breath analysis or blood test,
  • Wilfully altering blood alcohol concentration,
  • Speeding by more than 45km/h (not camera detected),
  • L or P plater speeding by more than 30km/h (not camera detected), or
  • L Plater driving while unaccompanied by a supervising driver.

48 hour requirement

Section 224(2) of the Road Transport Act requires an immediate suspension to be given within 48 hours of the driver being:

  • Served with a penalty notice for the relevant offence, or
  • Charged with the relevant offence.

A Notice of Suspension containing all ‘relevant suspension information’ must be served on the driver within that time, and a copy of that notice forwarded to the Roads and Maritime Services (RMS).

How long does the suspension last?

The duration of an immediate driver licence suspension is:-

  1. Where a driver is charged with a relevant offence:
  • until the charge is heard and determined by a court, or the charge is withdrawn.
  1. Where a driver receives a penalty notice:
  • 3 months, unless:
  • the driver elects to take the matter the court, in which case it last until the matter is heard and determined by a court, or
  • a decision is made not to enforce the penalty notice.

Can I appeal an immediate licence suspension?

Yes. Immediate licence suspensions are ‘appealable decisions’ under section 267 of the Road Transport Act.

An appeal must be filed in a New South Wales Local Court within 28 days of receiving the Notice of Suspension.

Under section 268 of the Act, the Local Court has the power to:

  1. Set aside the suspension,
  2. Vary the suspension,
  3. Confirm the suspension, or
  4. Make any other order ‘as seems just to the Court in the circumstances’.

Section 268(5) stipulates that the court is not to vary or set aside an immediate suspension unless it is satisfied that there are ‘exceptional circumstances’ which justify doing so, and in making that decision the court is not permitted to take into account the circumstances of the offence itself.

Rather, the court will look at other factors including the type of offence alleged or charged, the appellant’s driving record and his or her need for a licence.

An appellant is not permitted to drive until the appeal is determined by the court.

How can I increase my chances of having my immediate licence suspension set aside or reduced?

Given the prohibition on considering the circumstances of the alleged offence, a driver may increase his or her prospects of establishing ‘exceptional circumstances’ and thereby having the immediate suspension revoked or reduced by:

  1. Obtaining character references which set out the need for a licence,
  2. Preparing a letter of apology which sets out the need for a licence, and/or
  3. Obtaining any other materials which set out the need for a licence, such as a medical letter or employment contract.

Suspended or facing a suspension?

If you have been suspended from driving, or are facing a driver licence suspension, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a consultation with an experienced traffic lawyer who will advise you in relation to appealing the decision and thereby reinstating or retaining your licence.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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