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Home Resources & Technical Articles Criminal Offence Topics (A to Z) Driving Whilst Suspended Offences Driving Whilst Suspended Offences and Penalties in South Australia (SA)

Driving Whilst Suspended Offences and Penalties in South Australia (SA)

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.


A breach of traffic laws eventually results in a licence suspension or a disqualification in most cases. Under a licence suspension or disqualification, an individual must avoid operating a vehicle. Driving whilst suspended/disqualified is a serious traffic offence that can lead to fines and even imprisonment.

The laws regarding driving whilst suspended/disqualified are present in the Motor Vehicle Act 1959 (SA). These laws are binding for anyone within South Australia.

This article will discuss what the legislation says relating to driving whilst suspended/disqualified, its punishment, possible defences when standing trial, and the court that conducts these trials.

But before going into these areas, this article will look at the offences that lead to licence suspension or disqualification.

If an individual is convicted for a driving whilst disqualified offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

The Offences that Lead to a licence Suspension or a Disqualification

In South Australia, several offences can lead to a licence suspension or a disqualification. The violations are when:

  • A driver gets 12 or more demerit points within 3 years.
  • A learning driver accumulates at least four demerit points on their learner’s permit.
  • A person goes against the good behaviour order imposed on their driver’s licence.
  • An individual commits a drug driving offence.
  • An individual commits a crime relating to drink-driving.
  • A person fails to pay their fine as at when due.
  • Finally, a driver or a learner goes beyond the prescribed speed limit.

What the South Australian Legislation Says Regarding Driving Whilst Suspended/Disqualified

Based on Section 91 of the Motor Vehicles Act 1959 (SA), it is an offence for a person to continue driving a motor vehicle after a suspension of their driver’s licence/learner’s permit or a disqualification.

An offender under this section is liable to a maximum of 6 months imprisonment, while a repeat offender may face a maximum of 2 years imprisonment. Nevertheless, convicting a person for the crime of driving whilst suspended or disqualified requires the prosecution to prove the following:

  • A court In Australia suspended the defendant's licence or permit, or a court within Australia disqualified the defendant from possessing a driving licence or permit.
  • The accused knew of their suspension or disqualification.
  • Nevertheless, the defendant drove a motor vehicle on the roads of South Australia without any legally justifiable reason.

Possible Defences

Under different circumstances, there are various defences that a defendant can claim during a trial for driving whilst suspended or disqualified. The court may accept these defences and give the defendant a less severe punishment or even acquit them.

However, if a defendant has no legally justifiable reason for committing the crime of driving whilst unlicensed or disqualified, they can plead guilty. Pleading guilty may influence the court to give a less severe sentence.

Here are some of the defences that an accused can claim during a trial:


#1. The Defendant Was Not Driving

There are situations where the wrong person may face charges for driving whilst unlicensed or suspended. In such a situation, the individual can raise the defence that they did not operate a motor vehicle or that they do have a valid driving licence or permit.


#2. The Defendant Did Not Drive on a Road

Based on the Motor Vehicles Act 1959 (SA), a person cannot be guilty of driving whilst suspended or disqualified if they did not operate a motor vehicle on the road. A road is a surface specially prepared for cars to use. An accused can claim this defence if they can convince the court that they did not operate a vehicle on the road.


#3. Mistake of Fact

Mistake of fact is applicable when the defendant made a mistake of driving whilst suspended or disqualified under the assumption that they possessed a valid licence or permit. This could result from not receiving notice of licence suspension or disqualification.


#4. Duress/Coercion

An accused can use the defence of duress if they committed the crime of driving whilst suspended or disqualified due to a threat they received from a third party. However, for this defence to stand in court, the defendant must convince the court that they believed the threat to be genuine at the time they committed the crime.

Consequently, claiming this defence allows the accused to explain to the court that they had no free will during the commission of the crime.


#5. Necessity

The defence of necessity can only come into play if the accused committed the crime of driving while suspended or disqualified to avoid a terrible incident. For this defence to be effective during the trial, the accused must show that they genuinely believed they needed to break the law to prevent an ugly occurrence.

Also, they will need to convince the court that they believed going against the law was the only alternative. Nevertheless, the court will still have to determine if breaking the law was not an overreaction to the harm perceived.


#6. Mental Impairment

Claiming the defence of mental impairment shows that the defendant was not in their right frame of mind when they committed the crime of driving whilst suspended or disqualified. This could be due to involuntary intoxication. For instance, a person might have taken a particular prescription without knowing that it could inhibit their senses.


#7. Possessing a Restricted licence

The court may not find a person guilty of an offence if they possess a restricted licence. A restricted licence is a conditional licence issued to a person under a licence suspension or a disqualification. An example of a restricted licence is an alcohol interlock licence.

The South Australian Court that Handles Trials on Driving While Suspended/Disqualified

In South Australia, the Magistrates Court handles most of the trials for driving whilst suspended or disqualified. However, a defendant can appeal to the District Court if they are unsatisfied with the decision of the Magistrates Court.

What the Court May Consider When Sentencing a Person

During a trial for an offence, there are certain factors that the court may take into consideration. These factors may lead to the court giving severe or less severe punishment. Some of these factors are:

  • The age of the offender
  • The criminal record of the offender
  • The remorsefulness and willingness to take responsibility
  • The effect of the crime on the society

Conclusion

When it comes to driving whilst suspended or disqualified, the court has the right to give whichever punishment it sees fit. However, the legislation stipulates the maximum punishment the court can provide. When facing charges for driving whilst suspended or disqualified, acquiring legal assistance can go a long way in getting a desirable result.

Will a driving whilst suspended offence show up on a nationally coordinated criminal history check?

If an individual is found guilty of a driving whilst suspended offence, the offence will show up as a disclosable court outcome (DCO) on the result of their police check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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