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Speeding
Offences
S. P.
Hardy is experienced at giving expert and strategic legal advice in
relatation to all speeding offences. He defends all types of speeding
offences in court - especially where it is important to save the
client's driver's licence:
- on-the-spot
fines & court charges,
- radar
detection (hand-held, moving mode etc)
- laser
or LIDAR detection
- maintaining
even distance and estimations
- speed camera offences
- time
over distance (point to point)
- all
types of speed zones
- driving at a dangerous speed
For
information on infringement notices, first read the "Fines" page. The FAQ below will answer most
questions, or try the Online Forum. Also see my pages about getting legal
assistance and booking
a conference.
Speeding FAQ.
Frequently Asked Questions
Answers to questions I get asked every day:
Q. I have an infringement notice which
carries 6 months licence loss, but I need my licence for my job. What
should I do?
Your only alternative to losing your licence is to lodge an
objection to the infringement and take the case to court. You can then keep
driving until the court case. Click
here
to find out how to lodge an objection. If you don't take it to court,
you must lose your licence. If you fight the case in court
there
is a chance you will reduce your licence loss period or win your
case. After you lodge your objection you will get a charge and summons.
It will then cost you only $300 to have a conference and get legal advice
about whether your case is worth pursuing. Also read the
section on Fines.
Q. I need to know if my case
has a
reasonable chance of winning before I lodge my objection to the ticket.
You
can make an appointment for a conference before you lodge your notice
of objection, but it will be unlikely that you will be able to find out
if your case has a reasonable chance of winning at that early stage.
Any good lawyer will need to see the charge and
summons and the brief of evidence to determine what your chance of
winning is. Some people make an appointment to see me before they
lodge an objection so I can help them decide whether or
not to object to the infringement notice.
Q. How do I know if it is worth taking
my case to court?
If you are
facing mandatory licence loss you must take the matter to court if you
want to have any chance of keeping your licence. Whether that is 'worth
it' depends on how you value your time, money and your licence. If you
have no money and do not need a licence then it is probably not
worth it. So the only person who can answer this question is
the
driver. If you are facing an unbearable period of licence loss then
there is no reason why you would not object to the infringement
notice. It will then cost you a conference fee to investigate
the police case and find out if
your
case is worth defending. If you
chose
to defend the charges it can cost between $2500 and $6000
depending on what is involved. Otherwise you can plead guilty
and you will be, on average, about $300 down. People who enjoy the
risks of
driving at high speeds will probably enjoy the risks of
litigation!
Q. I just want to know if it is
worthwhile making an appointment to get legal advice...
If your licence is at risk, then it probably is.
Q. My licence is about to be suspended
for 6 months because of a speeding fine. If I plead guilty at
court is there any way the Magistrate can let me keep my licence or
reduce the suspension period?
No. It is definitely absolutely totally
impossible for you to retain your drivers licence if you plead guilty to a
speeding charge where the alleged speed is 25kmh or more over the speed limit, or more than 130kmh.
Q. I was pulled over by the police for
speeding and given a fine with 6 months licence suspension. How will
taking it to court help?
The only
way to get a result
that is better than what is on the infringement notice is to object to
the infringement notice and take the case to court. That means
pleading not guilty and either winning your case or negotiating a
suitable settlement with the police. This usually means having
to
engage an experienced lawyer. Most of my clients get better outcomes by
taking their case to court. If the court finds you guilty,
you
are likely to get a similar penalty to what was on the ticket, so the
downside is minimal. So your option is to take it to court or pay the
infringement. There are no other alternatives. Unless you
take the infringement to court and win you must suffer the mandatory
minimum
period of licence suspension (see table below). Most speeding offences
in Victoria have mandatory sentencing penalties:
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Mandatory Minimum Penalties for Speeding in
Victoria
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Alleged
Speed
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Licence
loss
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Demerit Points
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1kmh
to 9kmh over the speed limit
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-
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1
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10kmh to 24kmh over
the speed limit
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-
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3
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25kmh to 34kmh over
the speed limit
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1 month
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4
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35kmh to 44kmh over
the speed limit
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6 months
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6
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more than 45kmh over the speed limit
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12 months
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8
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130kmh to 134kmh in 110kmh zone
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1 month
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3
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Driving at a dangerous speed
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6 to 12 months
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-
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Q. I was speeding because [insert
your favourite excuse here]. Can this be taken into account
to save my licence?
No. Your
reason for committing the offence is not a defence and can not reduce
the penalty below the mandatory minimum. You are simply confirming you
broke the law. However if you were speeding because of some life
threatening emergency you might have a good excuse.
Q. I was pulled over doing 137kph on
the Hume Fwy. It was just a short burst as I passed a semi. It is my
first offence since I got my licence in 1972. I drive a fire truck for
a living. Without a licence I won't be able to work or pay the mortgage
or the kids' school fees. I also drive to look after my disabled
daughter. My wife is on chemo and can't drive. The only reason I was
speeding was because I was late getting to Government House to receive
my Order of Australia medal from the Governor General. Will the court
take any of this into account and let me keep my licence or reduce the
suspension period?
No. See
the table above. An
excuse is not a defence and can not reduce mandatory penalties, unless
you drove because it was a matter of life or death. If you want a
different result, you need to defend the charge in court. Your good
driving history or your reason for speeding can never reduce a mandatory
minimum period of suspension.
Q. I didn't realise I was speeding
because [insert your favourite reason here]. Is this
a defence?
Ignorance
is no excuse - nor is it a defence. You might have an argument if the
court accepts that you did everything reasonably possible and that it
was reasonable for you to believe that you were driving lawfully,
although this defence is not usually applicable in speeding cases.
Q. Is it possible to beat a speeding
charge? Do I have a defence?
Yes. Every
speeding charge
has some chance of being dismissed. Every case needs to be judged on
its own circumstances, and some cases have better odds than others.
Sometimes it is possible to win by challenging the method of detection.
This is done by casting doubt on the allegation your vehicle exceeded
the speed limit. For example, radar is less reliable and easier to
challenge than laser. You can challenge any type of detection method
especially if expert evidence (and money) is applied to the
problem. Radar devices are also known produce unreliable
readings
from vehicles which are out of view (over a hill or behind foliage) or
from radar beams that are reflected from signs, fences, parked
vehicles, from trains and planes travelling nearby, and from
interferences from power lines. Maintaining even distance detection is
the least reliable. This is when the police follow your vehicle for a
few hundred metres and estimate your speed from their speedo.
On the
other hand, rather than worry about the method of detection or accuracy
of the reading, it is often easier to win by challenging other
aspects of case such as the validity of the legal processes. Sometimes
the police are very good at speed detection but hopeless at running a
court case. See the page on defending charges in court.
You don't
need to "run a defence case" to fight a criminal charge. When the
police fail to prove that they have followed the correct steps, or have
failed to comply with strict time limits, or failed to issue, sign,
date, file or serve court papers correctly, then the prosecution might
be unsuccessful. Unless the prosecution get over those hurdles the
defence is not required to start running a defence case. Many
sucessfully defended speeding cases are won before any defence case
commences, or even before the prosecutor gets a chance to call his
first witness. So you needn't give up just because you can't see how
you can prove the reading is wrong or if you are not aware there is a
defence. The minimum that is required is a desire to win and the
benefit of the presumption of innocence, although a skilled lawyer
helps a lot too.
Q. A spruiker named
Mike Palmer runs a website called Aussie Speeding Fines. He's not a
lawyer but he claims all fines are illegal, local government is
unconstitutional, and I can avoid all fines just by sending
some letters. He wants me to pay $69 for his book of ideas. Will this
help?
No. That
website is a scam. Palmer's ideas are pure nonsense and his book is
worthless. Don't waste your time or money. There is a legal analysis of aussie speeding fines here. See also this case where his ideas where thrown out of court.
Q. My speedo is not accurate. Will
that help?
No. Read the
section about inaccurate speedometers.
Q. My mate told me that if I go to
court and plead guilty I can ask for a drive-to-work licence or daytime
hours licence so I won't have to lose my job.
Tell him
he's dreaming. This type of licence has not existed in Victoria in
living memory. All your
mates who claim to have a "drive for work" licence are lying to you
because they don't want you to know they are actually driving whilst
suspended.
Q. Is there any way at all I can beg
the court to reduce the supsension period, or pay a higher fine to get
a lower suspension period, or let me drive just for work purposes?
No. No. and No. If it was that easy I
would
spend my days begging for leniency for clients instead of
fighting and winning court cases. Begging a court for leniency in
speeding cases is usually a waste of time and money. You would be better off just paying the ticket.
Q. If I am pulled over are the police
obliged to show me the speed reading on a radar/laser or other
detection device?
No, but it
is customary for the police to offer to show the driver the reading. It
is probably better if the driver takes a look at it, and the driver
should ask to take a look at it if it is not offered. There is no legal
consequence if the police fail to show the driver the reading, but if
they refuse in the face of a request it always makes them look like
poor sports, so that helps. Sometimes the police issue fines for
speeding when they have not used any radar or laser device. They can
simply watch you drive past and estimate how fast you are going.
Q. How can I dispute the speed reading
alleged against me?
Disputing
speed readings from radar and laser devices usually requires getting an
expert to give evidence in court about how these devices can produce
inaccurate readings. If you want to argue for a deduction in the speed
reading due to inaccuracy of the device, you usually need an expert
witness to tell the court how the error is possible. By casting doubt
on the accuracy of the device or the accuracy of its operation you may
find that the prosecution fails to prove the charge beyond reasonable
doubt. Disputing speed readings usually requires the accused to give
evidence as to what speed the accused claims he or she was driving
at. When the police do not use a prescribed speed measuring device it
is possible to challenge the accuracy of their estimation by giving
contrary oral evidence. I prefer to win speeding cases without
disputing the reading, so I am not suggesting this is the smartest way
to defend a speeding case.
Q. If I lodge an objection to a
speeding ticket, can I keep driving?
Yes. If
you lodge a notice of objection you can keep driving until a court says
otherwise.
Q. I got a traffic camera speeding
fine in the mail. I was not the driver. What should I do?
You can
nominate the driver,
or accept the penalty yourself either by doing nothing or paying the
fine. A traffic camera fine is sent to the registered owner of the
vehicle. The registered owner is liable for the offence unless the
owner nominates the person responsible for the vehicle at the time of
the offence. See the nomination page. The person who is nominated will then be sent an
infringement notice and he/she will then be responsible for the fine
and any demerit points that accrue. The nominated person also has the
right to nominate a new person if the originally nominated person
disputes being the driver. If the owner can not determine the identity
of the driver after making all reasonable inquiries, the owner may
avoid liability for the offence by making an "unknown user
statement". You may want to get legal help with that to
ensure it
is done properly. If a police member asks an owner to identify the
driver of that person's motor vehicle at any time, the owner is obliged
to make inquiries to find out who was driving and answer the question.
Failure to do so can result in at least 2 years licence loss for the owner.
Q. I just received 7 speed camera
fines in the mail, including 3 on a single day, with a total of 13
demerit points. What can I do?
You could
write to the Traffic Camera Office and ask for
all but one fine to be withdrawn on the basis that if you had received
the first fine promptly and before the others, you would not have
reoffended. This might be the case if the offences were committed on
the same day or over a period of a week or two. The PRB (Penalty Review
Board) has guidelines for this and they are able to make you pay the
most serious fine and withdraw the others. Writing to the PRB also has
its downside if you later decide to take your case to court, so you may
want to get legal assistance and advice if you want to protect all your
rights. Another option is to lodge an objection to each of the fines
and use various strategies to get rid of them, or win them, via the
court system.
Q. Why is the alleged speed different
to the detected speed?
The
detected speed is what was recorded on a speed measuring device. The
alleged speed is a lesser speed and is what the police will allege in
court was the
speed of the vehicle. The Road Safety (General) Regulations
require certain speed measuring devices to be calibrated to a certain
level of accuracy, usually plus or minus 2kmh. Mobile speed cameras are
permitted a tolerance of 3kmh or 3%. The police allow a deduction
of 2 or 3 kmh from the detected speed to account for the
margin of error allowed in the device. This deduction reduces
the risk they may end up wasting a couple of days in court arguing
about the accuracy of a speed measuring device. The deduction gives the
accused the benefit of any doubt as to the accuracy of the device.
There is no legal obligation on the police to allow any deduction.
However, most prosecutors will recognise that any charge arising from
the use of a speed measuring device can be challenged if no
deduction has been made. Allowing the deduction is a practical solution
to that problem.
Q. I was caught speeding in NSW at
40kmh over the speed limit. Will my Victorian driver's licence be
affected?
Most
likely yes. In most cases VicRoads can suspend your licence as though
the offence occurred in Victoria. If the RTA sends VicRoads notice of
the offence, VicRoads will then send you a notice stating that your
drivers licence will be suspended from a date commencing in about 4
weeks, and ending on the date on which you cease being a suspended
driver in NSW. You will also get Victorian demerit points for the offence.
Q. I was caught speeding in Victoria
at 40kmh over the speed limit. Will my NSW or UK driver's licence be
affected?
Your
interstate or overseas licence can not be suspended by any Victorian
law or authority. However, your right to drive in Victoria will be
suspended for 6 months, although you may want to seek legal advice about
your particular circumstances because the law can be ambiguous in this
area. Interstate licence holders may find that their local licencing
authority has the power to suspend their interstate drivers licence if
they become disqualified from driving in Victoria. Driving during a
period of suspension or disqualification is an offence punishable by
imprisonment. Victorian law can not prevent you from using a
non-Victorian licence in other states, i.e. Victoria can not stop you
using your NSW or UK licence in other states.
Q. The police followed me on the
freeway and booked me without using a laser or radar device. Can they
do that?
Yes,
they can prove your speed by relying on the speedometer in their vehicle, regardless whether it is
calibrated.
Q. Where are the police allowed to set
up a speed trap?
Anywhere
they want. The police can enforce speed limits on any road in Victoria
and no law specifies where they might use a speed camera or other speed
measuring device. However, the police use operational guidelines and site selection guidelines that state what physical features may make a
site unsuitable or inappropriate for speed camera use. The guidelines
have almost no value in court. It is not a defence to a
speeding fine if the police who detected you speeding were illegally
parked, or parked on private property, or driving without seatbelts, or
speeding without emergency lights activated, or driving an unregistered
vehicle, or had a cracked windscreen, or did anything else that was
irrelevant to the commission of your offence.
Q. Where can I find the laws governing
operation of speed cameras and other speed detection devices?
See the Road
Safety (General) Regulations, especially Part 3, and also ss.66,
78,
78A,
79,
80,
83,
83A
Road Safety Act 1986.
Q. How does the National Measurement
Act 1960 (Cwth) help to fight a speeding offence in Victoria?
It does not provide any help at all. This
legislation ("NMA") has absolutely no impact whatsoever on the
detection or prosecution of speeding offences in Victoria. Over the
past 30 years numerous courts have held that evidence obtained from
speed measuring devices is admissible as evidence in court despite the
National Measurement Act and the National Measurement Regulations. The
NMA legislation does not require speed measuring devices to be
certified and generally does not affect the admissibility of evidence
obtained from any speed measuring device. About 5 years ago I
represented a client (Ken Harris) who instructed me to run the NMA
argument. Mr Harris was convicted and he subsequently lost his County
Court appeal. Although the NMA argument has been accepted on a couple
of occasions, each of those rulings has been overturned by higher
appeal courts. You will have to take your case to the High Court to
overrule the current position. Below are links to some of the
court decisions that have thrown-out this argument.
A few home-grown speeding fine
activists
are still advising people to use this "defence", so
the list of losing cases is likely to grow as time goes by. They
believe the courts are mis-interpreting the legislation. The courts'
duty is to interpret the legislation made by parliament, and if the
courts' interpetation is not what parliament intended, parliament can make appropriate amendments. Parliament has not
made any amendments to change the court's interpretation of this
legislation. In my opinion, there are many easier ways to win a
speeding case than to rely on the NMA, although speeding fine
activists and engineers don't seem to be able to think of any. To all
the engineers who to write to tell me how wrong the court's
interpretation is and how stuffed the legal system is - you're wasting your time. You should run
for
parliament - or study law and become
a High Court judge - if you want things to change.
- Re: Appeal of
White [1987] District Court NSW
- Hooper
v. Marshall [1992] TASSC B50
- Allan
v. Broome [2003] TASSC 38
- JENKINS
v WMC RESOURCES LTD [1999] WASCA 171
- Pearce
v Dennis [1997] QCA 239
- Crosthwaite
v Loader [1995] QSC 42
- Borody
v Smith Ors [2002] NSWSC 1242
- Brooks v. Parente (1989) Supreme Court
of Vic. Nathan J. Unreported.
- Radalj v. Taylor (1997) 25 MVR 11 (SCWA)
- Rumsely v. Taylor (1997) 26 MVR 563
(SCWA)
In the Appeal of Lloyd (1994) 20 MVR 408 (NSW)
Police v. KS, (2010) Magistrate Cure, Dandenong Magistrates Court.
Q. I don't think I have a defence.
What can I do?
I will
never rely on my client to find a defence. 99% of "defences" my clients
tell me about are useless and merely waste my time. It is the lawyer's
job to identify any defence, not the client's. Read this page about defending charges.
Q. What is the best way to win a
speeding case?
Employ a barrister and use the law. Also,
most defendants think that they are under some obligation to prove that
they did not commit any offence. This is wrong. If the police lose a
case it is usually because they messed something up during the court
proceeding, rather than the defendant saying anything useful in his or
her defence.
Q. I have lodged an objection to a
fine. Now what should I do?
Within a
few months the police will send you court papers. Once you have the
court papers, you should book a conference
for some legal advice. Read this section on court process.
Q. Do you give free legal advice?
Yes. You
are reading it. There is more here.
Q. I can't afford a lawyer. Can I get
help from legal aid?
If you are at
risk of going to prison, and if
you satisfy Legal Aid's means tests and other condtions, then you might
qualify for legal aid - especially if you are pleading guilty. I have
never heard of Legal Aid providing funding for a traffic lawyer to
defend a speeding case. Legal Aid provides a "duty solicitor" at most
courts to help defendants who want to plead guilty. So if you want to
plead guilty
(and lose demerit points and lose your licence), then you could
ask to
see the legal aid lawyer at court. The duty solicitor will not
represent you to fight a traffic offence.
How
to dispute a speeding fine. Disputing a speeding ticket. Fighting fines
and speeding tickets. How to challenge a speed camera fine. Fight
fines. . Challenging fines in victoria. Speeding fine laws.
Speeding law. Speed ticket law. Speed camera law. Excessive speed fine.
fightfinea
Related Pages:
Speed Camera Offences
Fines
Demerit Points
Inaccurate Speedos
Speed Camera Locations
Getting Legal Advice
Speeding Law Online Forum
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