Driving While Suspended in Victoria

Being charged with driving while suspended can be serious.  While it commonly results in a fine, it can result in more serious penalties including a Community Corrections Order or even imprisonment for repeat offenders or where aggravating circumstances are involved.  Often sentencing considerations are more focused on issues such as conviction and loss of licence. 

Some drivers know they were suspended and chose to drive. Others genuinely believed they were entitled to drive. In some cases, people claim they never received notice of the suspension at all.

Whatever the circumstances, driving while suspended is treated seriously in Victoria and can have significant consequences.

The good news is that every case is different. The outcome often depends on factors such as the reason for the suspension, the person’s driving history, the circumstances of the driving and whether there is any defence available.

This article explains the law relating to driving while suspended in Victoria, the penalties that may apply, possible defences and what you can generally expect if your matter proceeds to court.

What Is Driving While Suspended?

Driving while suspended is an offence under section 30 of the Road Safety Act 1986 (Vic).

In simple terms, a person commits the offence if they drive a motor vehicle on a highway while their authority to drive is suspended.

A suspension may arise from:

• Excessive speeding offences.
• Drink driving offences.
• Drug driving offences.
• Demerit point suspensions.
• Court orders.
• Administrative suspensions.
• Medical suspensions.

The prosecution does not need to prove that a person deliberately chose to drive while suspended.  This is regarded as a strict liability offence; there is, however, a defence of having an honest and reasonable mistake of fact, which I will discuss below.

Driving While Suspended vs Driving While Disqualified

These offences are often confused.

A suspension is generally temporary and may arise administratively or through a court order.

A disqualification is generally a more serious prohibition preventing a person from holding or obtaining a licence for a specified period.  You must apply to have your licence returned after a period of disqualification

Both offences are prosecuted under section 30 of the Road Safety Act; however, courts will often regard driving while disqualified as more serious

What Must Police Prove?

To secure a conviction, the prosecution must prove beyond reasonable doubt that:

• The accused was driving.
• The vehicle was a motor vehicle.
• The driving occurred on a highway.
• The licence was suspended or the accused was disqualified at the relevant time.

Honest and Reasonable Mistake

One of the most important issues that can arise in driving while suspended cases is whether the driver honestly and reasonably believed they were entitled to drive.

This is sometimes referred to as the defence of honest and reasonable mistake of fact.

The defence is not available merely because a person says they did not know they were suspended.

The belief must be both:

• Honestly held; and
• Reasonable in the circumstances.

Whether the defence applies depends heavily on the facts of the individual case.

For example, issues may arise where:

• Suspension notices were not received after the driver changed address.  Whether that is reasonable may depend, for example, on whether Vic Roads were notified of the change.
• There are multiple drivers of the car
• Incorrect information was provided.
• Administrative errors occurred.

These cases can be highly fact-specific and require careful analysis.

Can I Defend a Driving While Suspended Charge?

Every case depends on its own facts.

Potential issues may include:

• Identity disputes.
• Whether the accused was actually driving.
• Whether the licence was suspended at the relevant time.
• Honest and reasonable mistake.
• Sudden and Extraordinary Emergency.
• Evidentiary deficiencies.

Many defended matters ultimately turn on detailed factual issues rather than broad legal arguments.

Obtaining legal advice early can assist in identifying whether any defence is realistically available.

Penalties for Driving While Suspended

Driving while suspended is a serious offence.

The maximum penalty is:

• 240 penalty units; or
• 2 years’ imprisonment.

Maximum penalties are reserved for the most serious cases.

A further period of licence suspension is also a relevant consideration for the court.

The sentence imposed in any particular case depends on numerous factors, including:

• Prior traffic history.
• Prior criminal history.
• Whether the offender has previous suspended or disqualified driving offences.
• The circumstances of the driving.
• Insight and remorse.
• Rehabilitation efforts.
• Personal circumstances.

Will I Go to Jail?

Most people charged with driving while suspended are not asking about maximum penalties.

For first-time offenders, imprisonment would be an exceptionally rare result.  Considerations around licence loss and conviction would be more relevant.

However, the risk increases where there is:

• Repeat offending.
• Multiple prior traffic matters.
• Aggravated circumstances involving intoxication, collisions or refusing to stop when directed to do so by police.
• Associated criminal offending.
• Persistent disregard for court orders.

Each case is assessed individually.

No lawyer can properly advise on likely outcomes without reviewing the full circumstances.  There is little doubt that the better prepared your case is, the greater your chance of avoiding a more serious penalty and the greater your chance is of avoiding further licence loss.

Can My Vehicle Be Impounded?

In some circumstances, police may have powers to impound or immobilise a vehicle used in connection with relevant driving offences.

Driving while suspended or disqualified is an offence that can result in immediate impoundment of your car for up to 30 days.  The court can order a further period and potentially also order the forfeiture of your vehicle depending on your driving history, specifically whether you have a history for relevant offence types and how old that history is.

Because vehicle impoundment can have significant practical consequences, legal advice should be sought promptly where it is a possibility.

The law around this can be technical.  You may think you have a good reason which will convince a Magistrate not to impound your car, but parliament has legislated to prevent some otherwise good arguments.  It is important to know what Magistrates can take into account before making any submissions.

What Happens at Court?

Driving while suspended matters are heard in the Magistrates’ Court.

The first hearing is called a mention hearing.

At that stage a matter may:

• Resolve by way of a plea.
• Be adjourned for legal advice.
• Be adjourned to obtain material.
• Be listed for either a contest mention hearing or directly to a contested hearing.

If a person pleads guilty, the magistrate will consider:

• The prosecution ‘statement of alleged facts’.
• Driving history.
• Character material.
• Personal circumstances.
• Evidence of remorse and reasons for driving.
• Submissions made on the person’s behalf.

The court will then determine the appropriate sentence and whether to make orders against a driver licence.

What Can Help My Plea?

Positive factors often include:

• A limited traffic history.
• Genuine remorse by accepting responsibility.
• Early admissions.
• Character references.
• Stable employment.
• Family responsibilities.
• An explanation for the offending that demonstrates it was an isolated act or out of character.
• A genuine need for a driver licence.

The earlier these matters are addressed, the more useful they are likely to be.

When Should You Obtain Legal Advice?

Legal advice should be obtained as early as possible if:

• You are charged with driving while suspended.
• You are charged with driving while disqualified.
• You believe you did not receive notice of a suspension.
• You have prior traffic matters.
• You rely on your licence for employment.
• You are concerned about receiving a conviction.

Early advice often provides the greatest opportunity to identify issues, prepare supporting material and present the strongest possible case.