Driving Whilst Disqualified

Difference Between Suspended and Disqualified Licence Victoria

There are important distinctions between driving whilst disqualified and driving whilst suspended. Disqualification involves the cancellation of your licence. A suspension of your licence means that you still hold a licence, but are not able to drive for a certain period of time (suspension period).

Driving Whilst Disqualified

It is an offence in Victoria to operate a vehicle whilst disqualified.[1] A disqualification period is often ordered following a prior traffic offence. Your licence to drive a motor vehicle will be cancelled and you are prohibited from driving for a certain period of time. Once your disqualification period ends, you will need to reapply for a driver’s licence.

Elements

In order to prove a charge of driving whilst disqualified, the Police must establish that:

  • You drove;
  • A motor vehicle on a road or highway;
  • You drove the vehicle whilst you were disqualified from holding a licence.

To ‘drive’ a motor vehicle means that you were in control of a vehicle.[2] A ‘motor vehicle’ is defined as something ‘that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle’.[3] The definition of ‘vehicle’ does not include trains or motorised wheel-chairs (such as a Gopher scooter).[4] However, home-built devices (such as motorised eskies or go-carts) would meet the definition of a motor vehicle.

A ‘road’ or ‘highway’ is given its ordinary meaning and includes footpaths, nature strips or other road-related areas (such as an area for parking vehicles).[5] ‘Disqualified’ means someone who is disqualified from driving a motor vehicle due to other traffic infringements (drink driving, speeding etc.).[6]

Penalties for Driving Whilst Disqualified

There is no mandatory penalty imposed for driving whilst disqualified, as long as the offence was alleged to have been committed after 1 May 2011. The Court may still order you to serve the disqualification period originally ordered, or a period of it even if you are found not guilty of a driving whilst disqualified offence. Therefore it is important to seek legal advice should you be charged with driving whilst disqualified.

The maximum penalty for driving whilst disqualified is 4 months imprisonment, providing that it is your first offence.[7] For subsequent offences, the maximum penalty is 2 years imprisonment.[8] For subsequent offences, Police can also make an application to impound or for forfeiture (which can result in destruction) of your vehicle.[9]

Defences Available

There are several defences available for you to dispute a driving whilst disqualified charge. You can argue that you held an honest and reasonable belief that you were entitled to drive. For example, you could not have been adequately informed that you licence was disqualified. However, there must be evidence to support your claim that you did not know your licence had been disqualified.

The defence of necessity is available where your decision to drive was based on a medical emergency. You can also raise a defence based on a factual dispute of the elements of the charge. For example, you did not drive a motor vehicle or the vehicle you drove does not meet the classification of a motor vehicle. You could also argue that you did not drive the motor vehicle on a ‘road’ or ‘highway’.

Each case is considered on its own facts so it is important to seek legal advice so that you can be provided with appropriate advice based on the circumstances relevant to your matter should you be charged with driving whilst disqualified.

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[1] Road Safety Act 1986 (Vic) s 30.
[2] Road Safety Act 1986 (Vic) s 3.
[3] Road Safety Act 1986 (Vic) s 3.
[4] Road Safety Act 1986 (Vic) s 3(a)(b).
[5] Road Safety Act 1986 (Vic) s 3.
[6] Road Safety Act 1986 (Vic) s 3AD.
[7] Road Safety Act 1986 (Vic) s 30(1).
[8] Road Safety Act 1986 (Vic) s 30(1).
[9] Road Safety Act 1986 (Vic) s 84S, 84T.

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