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Demerit
Point Licence Suspensions and
Appeals
The
demerit points system in
Victoria
When
a driver exceeds the number of
allowable demerit points in a
particular period VicRoads will send a
letter to the person telling them they
are about to lose their licence for at
least 3 months begining about one month
after the date of the letter. If the
driver does nothing, the licence will
be suspended for at least 3 months. If
the driver does not wish to lose his or
her licence, they have the option of
contacting VicRoads and electing to
continue driving on the condition that
if they incurr one or more demerit
points in a 12 month period following
their election, then they will lose
their licence for at least 6 months.
Instructions for making the election
are on the VicRoads letter. The driver
should make a note of the time and date
they made the election, and the receipt
number, in case they need to prove they
did so. Any demerit points incurred by
a driver as at the time VicRoads sends
a driver an election notice are no
longer counted against the driver's
points tally regardless what option the
driver chooses to take.
You
can check your demerit points status
free of charge by calling VicRoads on
13 11 71, or order a copy of your
demerit points history and a full driving
history report from the VicRoads
web site
for
about $7.60.
When
are demerit points
recorded?
Demerit
points are recorded by VicRoads for
certain offences when any of the
following events happen:
- the
driver pays the amount shown on the
infringement notice, or
- the
Infringement Court (A.K.A. PERIN
Court) makes an enforcement order in
default of payment of the fine,
or
- the driver is
found guilty or convicted of a relevant
offence (including any conviction resulting from an infringement notice).
All demerit points are recorded as
of the date of the offence. They are
back-dated onto your
record.
Consequences
of incurring 12 or more points for all
licence holders
If
you incur 12 or more points within any
period of 3 years you are liable to
suffer
3 months licence loss unless you elect
to extend the demerit point period for
a further 12 months. In the weeks or
months after you accrue 12 demerit
points VicRoads will send you an option
letter which sets out 3
options:
Options
1 - Elect to extend your demerit
point period. To take the election you
must telephone VicRoads or write to
them within 28 days of the date of the
option letter. You should record the
receipt number, and keep records of all
your paperwork.
During
a demerit point extension period the
driver must not incur any further
points or else the driver will suffer a
licence suspension period that is
double what they would have served had
they not taken the option to extend the
demerit point period. The sending of
the option letter will cause your
demerit points to be effectively re-set
to zero, so that any points incurred
prior to that date can no longer be
used against you.
Option
2 - Suffer a licence suspension
period. The number of months of
suspension is calculated by taking your
number of points (say 13), dividing by
4 (13/4=3.25) and rounding down to the
nearest whole number (3 months). To
take this option you simply do nothing.
It is the default option.
Option
3 - Appeal
the calculation of demerit points. If
VicRoads has made an error in the
addition of your points, then you might
want to appeal that issue to the
Magistrates Court. If you lose your
appeal, you are stuck with Option 2
(licence loss). Option 1 is not
available as a fallback position from a
failed appeal. That is why most people
do not lodge an appeal at the option
stage. If there is an error with the
points at the option stage then you
might want to get legal advice before
taking your option, because there are
ways to preserve your appeal rights so
the issue can be argued later in the
event that you breach your 12 month
bond.
Special
provisions for Probationary licence
holders
Any
person who holds a probationary licence
and who commits offences which accrue 5
or more demerit points during any
period of 12 months will receive a
letter from VicRoads which has each of
the 3 options listed in the preceding
paragraph. So if you get 5 points in
any 12 month period, you risk losing
your licence for 3 months, or you can
take the 12 month bond. All of the
offences that make up the 5 points must
have been committed while you were a
probationary licence holder, and must
be within 12 months of each other.
Probationary licence holders are also
subject to the usual 12 points within 3
years rules as well.
When
will my demerit points be returned to
me?
Demerit points are never returned to you. They
never "drop off your record", or "expire". Normally you will never "get
them back". They stay on your record forever and are used to determine
whether you have incurred 12 or more points in any three year period.
You do not lose demerit points. You accrue them. The only thing that
matters is whether during any period of three years you have committed
offences that accrued 12 or more points. Some people tell me they have
3 points left, or they are down to their last point. This is nonsense.
You do not receive a package of 12 points every three years.
Rather, at birth you have zero points. Over your lifetime you
accumulate points. By the time you die you might have over a hundred
points on your record.
Demerit
points are incurred by a driver as at
the date of the offence, not the date
the point is recorded. So you need to
put all your offences on a line graph
and see if, within any period of 3
years, you committed offences that accrued 12 or more points. The three
year period could be more than 5 or 10
years ago. The date you pay the fine or
are convicted at court is totally
irrelevant and plays no part in the
calculations. So you can not avoid
accumulating 12 points by delaying
paying the fine or by adjourning your
court case. If your points are more
than three years old they do not
disappear. They will forever form part
of many different three year periods.
If you are a P plater, then you also
have a 12 month period to worry about:
P platers must not get 5 points in 1
year, or 12 points in any 3
years.
Some
people mistakenly think of their
demerit points like a basket of eggs:
they start with a dozen and lose some
over time, and three years after they
lose an egg it will be returned to
them, and if they can delay paying a
fine then they delay losing the egg,
and provided they have at least one egg
left in the basket then they are safe.
The demerit point system is nothing
like that. In reality, you start with
zero points and you count up to a
million. You must treat it as a time
line, and on each date that you commit
an offence that carries points, count
back 3 years from the date of the
offence and see if you have recorded 12
or more points, then count forward 3
years from the date of the offence to
see if you have got 12 of more points.
So you need to cover a 6 year period.
If you do that every time you commit an
offence that carries points, as well as
each occasion when the points are
actually recorded on the system, you
should get it right.
Demerit
points suspensions with other licence
suspension or cancellation
penalties
A
demerit point suspension can not be
served while other licence suspension
or cancellation penalties are imposed
or you remain unlicensed following a
licence cancellation.
If
during a demerit points suspension your
licence is suspended or cancelled for
other offences, then the demerit points
suspension will stop until such time as
you regain a valid drivers licence.
Once your drivers licence is no longer
cancelled or suspended for the other
offence, then the demerit points
suspension will recommence until the
full number of months has been served.
The demerit points suspension period
can not be served concurrently with any
other form of licence loss
period. If you do not have a
current licence, you can not serve your
demerit points suspension.
If
your licence is suspended because of a
speeding offence you will also incurr
demerit points for that offence. If you
then suffer a demerit points suspension
it will not commence until your licence
suspension for the speeding offence is
completed.
If
you drive without a licence, you can
still incur demerit points.
Interstate
Offences
The
Road Safety Regulations allow VicRoads
to record demerit points against
Victorian drivers licence holders who
commit offences in other states. In
those cases, the interstate licence
authority will usually report the
offence to VicRoads and VicRoads will
then record the number of points wich
would be applicable if the offence had
occured in Victoria. Also, where an
offence could have resulted in licence
loss in another state if the driver was
the holder of a licence issued in that
state, then VicRoads may suspend the
Victorian drivers licence on the same
basis as if the offence had occured in
Victoria. Drivers who have demerit
points recorded against their Victorian
licence for offences incurred
interstate sometimes find they have
good grounds to appeal their demerit
point
suspensions.
Demerit
Points Appeals
s.26AA Road Safety Act
Any
person who is faced with licence
suspension arising from demerit points
is entitled to appeal to a Magistrates
Court against the suspension of their
drivers licence. The appeal must be
lodged with the court within 28 days
after receiving your notice of
suspension or the election
notice.
In
a demerit points appeal, it is not
possible to argue that you are not
guilty of the offence that caused
demerit points to accrue. If you wish
to challenge your liability for the
offence, it is necessary to challenge
the charge/infringement before any
demerit points accrue. After points
accrue it is sometimes possible to
reverse the points and defend the
offence in court. In demerit points
appeals VicRoads will come to court and
attempt to justify the basis upon which
it has recorded demerit points against
you. The grounds of appeal are limited
by s.26AA of the Road Safety Act.
Generally, you need to show that
VicRoads have made an error. It is not
easy to avoid a demerit points
suspension by appealing to the court.
The court can never take into account
the reason why you accrued points or
why you so badly need a licence.
Lodging an appeal just so you can tell
the Magistrate a long sob story would
be a complete waste of your time and
money.
There
is usually a couple of months wait
before an appeal is heard. A copy of
the appeal notice must be served on
VicRoads. The case is listed initially
for a mention date. It will then be
adjourned for a hearing date. Pending
the appeal the driver's licence is not
suspended. VicRoads will engage lawyers
to oppose the appeal. It common for
VicRoad's lawyers to write to
appellants and make threatening claims
for legal costs unless the appeal is
withdrawn. In reality, the court can
order VicRoads to pay your legal costs
if your appeal is successful, and may
allow some costs (often in the range of
$750.00 to $2,000.00) in favour of
VicRoads if the appeal is dismissed. If
the appeal is dismissed, the court will
decide the date when the licence
suspension commences.
If
VicRoads has recorded demerit points
against you incorrectly or when they
were not required by law to do so, then
your appeal should be
successful.
How
can demerit points be
removed?
It
is possible to remove demerit points if
you can undo the event that caused the
points to accrue. If points accrued
because you paid a fine, then they can
be removed only if the fine payment can
be reversed, which is not usually
possible. If you have incurred demerit
points as a result of a court order
(either Infringement (or PERIN) Court,
Magistrates or County Courts), it may
be possible to set aside the order that
caused the points to be incurred. Time
limits apply to setting aside orders so
you need to act promptly. If the court
order is set aside you should expect to
defend the driving charge in court if
you want to prevent the points
returning. In cases where you have
received demerit points after you
ignored the fine and did not pay it, it
is often possible to reverse the
points. It is generally not possible to
reverse demerit points if you have paid
the penalty on a fine. If you wish to
remove demerit points, set aside a
court order or appeal against demerit
points you will greatly improve your
chances if you obtain competent legal
assistance.
There
are often ways to avoid losing your
licence or to avoid losing demerit
points. If you pay the penalty on an
infringement notice, or on any of the
follow-up notices, you will incur any
demerit points applicable to the
offence. You can not un-pay the
penalty, although it is sometimes
possible to nominate a driver even
after payment. Therefore, if in doubt,
don't pay the penalty. Where the
penalty has not been paid it is usually
possible to reverse demerit points
recorded against you. If it has been
paid, then it is much harder.
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