|
Demerit
Point Licence Suspensions and
Appeals
The
demerit points system in
Victoria
When a person has exceeded 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 person does nothing, the licence must
be suspended for at least 3 months. If
the person 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 defined 12 month period following
their election, then they must 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 that have
been counted and relied on when sending
you an option letter can not be used
again to found a fresh option letter,
so effectively they are spent and
can be disregarded in the
future.
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 $8.80.
When
are demerit points
recorded?
Demerit
points are recorded by VicRoads for
certain offences when any of the
following events happen:
- the person pays the amount shown on the
infringement notice, or
- the
Infringement Court makes an enforcement order in
default of payment of the fine,
or
- the person is found guilty or convicted
of a relevant offence (including any
conviction resulting from an
infringement notice).
All demerit points are incurred on the date of
the offence no matter when the fine is paid. They are back-dated onto
your record.
You can delay paying your fine for as long as you like and drag your
court case on for years but when the points are eventually recorded
at VicRoads they are given the offence date. Points are recorded
against people, not against licences, so you can get points without
holding any licence.
What does 12 points within a period of 3 years mean?
Many
people fail to understand what it means to incur 12 points within three
years. If someone told you they incurred 12 points within three days
you would have no problem understanding them. It means they committed
several offences within 3 days that caused them to incur 12 points.
Getting 12 points within three months is also easy to understand.
So, incurring 12 points within three years works exactly the same as
incurring 12 points within three days except that the time period is
much longer.
Too many demerit points - The 12 Month Option
Consequences
of incurring 12 or more points for all persons
If
you incur 12 or more points within any
period of 3 years you must
suffer
3 months licence loss unless you elect
to extend the demerit point period for
a further 12 months. In the days or weeks 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. Take this option if you are
willing to commit yourself to not commiting any points offence for the
next 12 months. See the paragraph below about taking the 12 month
option. To make the election you must telephone VicRoads on the
1300 number stated on the option letter. You should
record the receipt number, and keep records of all your paperwork. If
you miss the the deadline for taking option 1, then your licence will
be suspended under option 2. If that happens, don't bother calling me -
you are usually out of luck unless you
can convince VicRoads to accept a late election.
Option
2 - Suffer a licence suspension
period. The number of months of
licence 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.
The
only other option you have is to see a lawyer to find out if you
can set aside demerit points that have already been recorded against
you. There is no point hoping that a court or VicRoads will take
into account your personal circumstances in allowing you to retain your
licence. That is impossible.
Special rules for Probationary licences and Learner Permits
Any
person who holds a probationary licence or learners permit and who has
committed offences which
accrue 5 or more demerit points within 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 - even if some of those points were incurred while your were not
licenced - you risk losing your licence for 3 months, or you can take
the
12 month option. All of the offences that make up the 5 points need to
have
been committed at a time when you did not hold a full drivers licence,
and must
be within 12 months of each other.
Learners
and Probationary licence holders are
also subject to the usual 12 points within 3 years rule as well. If a
P plater gets 12 points within a month or two, they should get a
suspension
letter based on 12 points, not 5 points, but that depends on how close
together the points are recorded. You could get another option letter if
5 more points are incurred after the first option letter is sent.
The
5 points in 12 months rule applies to all offences committed prior to
you obtaining a full drivers licence even if you graduated to a full
licence one day after the offence that gave you your 5th point.
Likewise, if you hit 5 points and then elected to take the 12 month option period, it does not cease being a 12 month
option period just because you graduated to a full licence half
way through it.
How
to avoid incurring demerit
points.
If
you have received a Victorian
infringement notice for an offence
which carries demerit points, then
there are ways to avoid getting
points recorded against you:
- you could elect
to take the infringement notice to court and be acquitted of the charge, or
- for
a camera offence you can nominate the driver or person responsible for the vehicle if you were not driving (a
"known user statement") or make an unknown driver declaration if you
are unable to determine who was responsible (an "unknown user statement"),
or declare that the vehicle or the number plates were stolen (an
"illegal user statement"), or
- if you have multiple fixed speed camera offences detected within a couple of
weeks of each other, you may be able to have some of the infringement
notices withdrawn, or
- if
you have not incurred any demerit points in the 2 years prior to
getting a 1 point speeding ticket, then you should ask the penalty
review board at the traffic camera office to withdraw the infringement
notice and issue you with a warning instead.
If
you have a demerit point problem you should consider getting legal
advice at the earliest opportunity by making an appointment to see me.
You will need to bring a print-out of your last 5 years of demerit points
history (obtainable from VicRoads), plus copies of all infringement
notices that you still have, plus any correspondence you have received
from VicRoads regarding your points. In many cases I succeed in helping people avoid licence loss.
Going to Court to avoid demerit points
If you are acquitted of your traffic offence
at court then you will avoid getting demerit points. Contrary to
what some people think, courts
have no power to record demerit points against you, and the court has
no power to prevent points being recorded for a points offence.
The
courts
have no discretion about points at all. Victorian legislation obliges
VicRoads
to record demerit points in respect of certain offences. If a court finds you
guilty of a demerit point offence, even if no conviction is recorded or
no fine imposed or even if a diversion is allowed, then VicRoads must
record demerit points as of
the date of the offence. So if your case is in court and you decide to
plead guilty because you hope the court will not record demerit points,
you may be thrilled to find the magistrate does not give you any points
at all. But your joy will be very short lived. In a few days you
will get a
letter from VicRoads telling you that VicRoads has recorded the points
against you backdated to the offence date.
It is a waste of time asking
a Magistrate not to record points against you because the court has no
power to intervene. The court must decide whether you are guilty
or not
guilty of the
offence. It is not concerned about points. If you are guilty of a
demerit points offence, the legislation requires VicRoads to record the
points. If you want to
prevent VicRoads recording the points, you must plead not guilty and be
acquitted. Deciding to plead guilty so the charge is proved and
dismissed is not good enough.
Getting a bond or adjourned undertaking is not good enough. Getting a
diversion is not good enough. Getting a fine without conviction is not
good enough. Begging the Magistrate to give you no points or to let you
keep driving is useless, no matter how depressing or impressive your
sob story is.
You need an acquittal. It is impossible to ask anyone to excuse you
from serving the licence suspension period. If you have a points
problem, then you should seek legal advice about the few valid options
that might assist you. If you are hoping to apply for a work
licence
or special circumstances licence then please read my page about how to apply for a work licence.
Taking the 12 month option.
If you have elected to take the 12 month demerit
point extension option, then you have agreed not to commit any demerit
points offence at all within the 12 month period set by VicRoads in
their letter to you. This means that during that 12 month period you
must not commit any driving
offence that carries points. Any
demerit points that have been counted and relied on to send you an
option letter can not be used again to found a fresh option letter,
so effectively they are spent and can be disregarded in the
future. If you complete your 12 month option period without
committing any offences you are likely to have no relevant points
recorded against you on the completion date (unless you committed
offences between the date of the option letter and the start of the 12
month option period).
If you are guilty of a demerit points
offence committed during the 12 month demerit point extension period,
then your licence will be suspended for 6 months or more. It does
not matter how long it takes for you to be found guilty of the points
offence, nor does it matter how long it takes for the points to get
recorded against your name. All that matters is whether or not you
committed a relevant points offence during the 12 month option period.
The start and
end date of the 12 month period is chosen by VicRoads and is stated in
the option letter. It usually starts about a week after the deadline
for taking the election. If you commit a demerit points offence during
that 12 month period and demerit points are eventually recorded against
you, then you will be sent a letter telling you that your licence
will be suspended for a period of at least 6 months - or more than that
if you accrued more than 15 demerit points prior to receiving your
option letter. Vicroads can take as long as they like to record the
points and send you the suspension letter.
You will not be sent any
suspension letter unless you hold a current Victorian driver's licence.
So if you just lost your licence for 4 years for drink driving and also
got 3 points for careless driving, you won't get your option letter or
suspension letter until you have completed your licence restoration
process and obtained a Victorian licence at the expiration of the 4
years disqualification period.
If you have started a 12 month option period and
during that period you receive a second 12 month option letter, you
should take the 12 month option again. It is unwise to overlap
a demerit point option period with a demerit point suspension period.
Likewise if you start a 3 month demerit points suspension and after the
suspension commences you get a further option letter you are probably
better off overlapping the two suspension periods.
Delaying Payment of your Fine or delaying your court date.
If
you think
that delaying payment of your fine or delaying your court case until
after the end of your
12 month option period will save your licence then you may be surprised
to hear that the people who
designed the demerit points system are not as stupid as you thought.
If you delay your court case for years and years it will simply
delay the commencement of your licence suspension period for years and
years.
When
will my demerit points be returned to
me?
You never lose demerit points, so they can never
be returned to you. They never "drop off your record", or "expire".
Normally you will never "get them back". You accrue points and they
stay on your record forever. They are used to determine whether you
have incurred 12 or more points in any three year period. 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 incorrect. 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. Points are recorded against
a person not a licence, so you can accrue points even if you do not
hold a Victorian drivers licence.
Demerit
points are incurred by a person as of
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 5 or 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 their
demerit points are like a carton 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 carton 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 in that period, 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.
Each time an
option letter is sent, all the points that are recorded as of the date of
the option letter are treated as used and can not be used again to
create a further option letter. So they will no longer count against
your total. If you are on 12 points and get an option letter, then
as of the date of the letter those points have been used and you are
effectively back to zero points within a 3 year period. If you commit a
demerit point offence the day after you get the option letter but
before the 12 month option period commences, that point will fall
within a fresh 3 year period and can not breach an option period that
has not yet commenced.
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. There are very limited grounds of appeal. You
can appeal if VicRoads has wrongly recorded demerit
points against you. You have a right of appeal when ever you receive a
letter from VicRoads that informs you that your licence is about to be
suspended because of demerit points. So you can appeal when you receive
the option letter and also when you breach your 12 month option.
The
appeal is lodged at a Magistrates court. The daedline for lodging it is
28 days after the date that the licence suspension commences. Once you
have served the notice of appeal on
VicRoads by posting or faxing it to them, you can continue to drive
until the appeal is resolved.
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. It is
not possible for the court to take into account the circumstances
of your
offences, or to determine whether or not you were driving at the time
of an offences, or to take into account how badly you need your need
licence, or to take into account how you are actually a top bloke and a
very careful driver, or for the court
to impose any fine or other type of penalty as an alternative to licence
suspension. The only things a Magistrates Court is allowed to do at a demerit points appeal is to correct the
calculation of your points if they have been recorded against you
incorrectly, or confirm your licence suspension. Most of the time VicRoads does a very good
job at calculating and recording your demerit points.
If
you wish
to challenge your liability for a points offence, it is important 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 lawyers
will
come to court and attempt to justify the basis upon which VicRoads has
recorded demerit points against you. It is not easy to avoid a demerit points
suspension by appealing to the court.
Too
many people email me with lame questions about demerit points appeals
so I will explain it very clearly one more time just for those of you
who are forgetful: the court can never
take into
account the reason why you accrued points or why you so badly need your
licence or do anything at all other than remove points that
have been unlawfully recorded against you by VicRoads.
Lodging
an appeal just so you can tell
the Magistrate your
sob story will aways be a complete waste of your time and money. So too
would be lodging a points appeal so you can argue that you were
not driving your car
when it triggered a camera fine back in 2010. You should seek legal
advice before lodging a demerit points appeal. In many cases
lodging a demerit points appeal is a good idea.
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 Infringements 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 usually not possible to reverse
demerit points if you have paid the penalty on an infringement notice,
although owner-onus camera offences are an exception to that. 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 the 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.
Cancelled or suspended licences and your demerit points suspension.
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 (the exception is that you
can serve two demerit point suspension concurrently). If you do
not hold a
Victorian drivers licence you can not serve a demerit points
suspension. You can incur demerit points without holding a
Victorian licence, but you can not suffer licence suspension unless you
hold a current Victorian licence.
If
during a demerit points suspension your
licence is suspended or cancelled for any reason, 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, 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 Victorian licence, you can not serve your
demerit points suspension - it will be on hold until you next get a Victorian licence.
If
your licence is suspended because of a
speeding offence you will also incur
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.
It
is possible to serve two demerit point suspension periods
simultaneously, or serve two 12 month option periods simultaneously. If
you get two option letters it is best to get legal advice about how to
handle it.
Points are recorded against people. Points are not put on your drivers licence. People who have never held any drivers licence can still incur 12 or more demerit
points in 3 years and they will get a suspension letter shortly after they next get a Victorian licence or permit.
Interstate and Foreign Jurisdictions
The
Road Safety (Drivers) Regulations require VicRoads to record demerit
points against
Victorian licence holders who commit demerit point offences in other
states (including overseas). In those cases, the
interstate licence authority will often report the offence to
VicRoads and VicRoads will then record the number of points which would
be applicable as if the offence had occured in Victoria. So you will
have points recorded against you in two states. If an offence carries 3
points in NSW but
the same offence in Victoria carries no points then VicRoads can
not record any points for that offence. NSW will give you double points
on public holidays but VicRoads can't give you double
points.
If you are disqualified from driving in another 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 in Victoria for offences incurred
interstate are more likely to find
good grounds to appeal their demerit
point
suspensions.
VicRoads
can not send you a suspension notice unless you hold a current
Victorian drivers licence. So if you hold a foreign licence your
Victorian points can not affect you until you obtain a Victorian
licence.
If
you move interstate and obtain an interstate drivers licence after
incurring 12 points or after breaching a 12 month option period, then
VicRoads will delay suspending your licence until you next have a
Victorian drivers licence or learners permit.
|
