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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 cameras
- time
over distance (point to point)
- all
types of speed zones
For
information on infringement notices, first read the "Fines" page. The FAQ below will answer your
questions, or try the Online Forum. Click here if you need legal
assistance.
Speeding FAQ.
Frequently Asked
Speeding Questions
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 is to lodge an objection
to the infringement and take the case to court. You can 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 always a chance you will reduce your licence loss period or win your
case. If it
is a speed camera fine you should book a conference to get specific
advice about your case prior to lodging the objection. Also read the
section on Fines.
Q. But I need to know if my case has a reasonable chance of winning?
A lawyer will need to see the charge and summons
and the brief of evidence to answer that question. You won't get
any of that unless your case goes to court. The first step is to
object to the fine to take the case to court, then once you have the
paperwork you should see a lawyer to determine whether or not it is
worth defending.
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
worthwhile. So the only person who can answer this question is the
driver. If you do not take the case to court you can
not improve your situation. It will cost you a conference fee to find
out if your case is worth defending in court. Defending a
speeding case can cost between
$1800 and $6000 depending on what is involved. All my clients who win
say it was worthwhile. If you enjoy the risks of driving at high speeds
then you will probably enjoy the risks of litigation.
Q. I just want to know if it is
worthwhile making an appointment to get legal advice...
Yes it is, if your licence is worth $250.
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.
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?
You
will keep your licence if the court dismisses the charge. 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. Many of my clients get
better outcomes at court. If
the court finds you guilty, you are likely to get the same penalty as
was on
the ticket. If you plead
guilty it is possible to reduce the financial penalty but the licence
suspension period can not be reduced. So your option is to take it to
court or pay the infringement. There are no other alternatives.
If you don't want to take the case to court
then you must suffer the mandatory minimum period of licence suspension
(see table below). Many speeding offences in Victoria have mandatory
sentencing
penalties:
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Mandatory 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 reason 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.
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. 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 you 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. If there are two cars in a speed camera photo,
or two vehicles together on the road at the time a radar is used, the
results might be unreliable. 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 good at speed detection but hopeless at getting all the
paperwork right. 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. 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 and I can avoid all fines just by sending some
letters. He wants me to pay $67 for his book of ideas. Will this work?
No. That
website is a scam. Palmer's ideas are pure nonsense and his book is
worthless.
Don't waste your time and money. There is a legal analysis
of aussie speeding fines here.
Q. My speedo is not accurate. Will
that help?
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 never existed in Victoria. If
mandatory licence loss applies, the court has no power to reduce the
suspension period to less than the mandatory period. That is why they
are called mandatory suspension periods. Parliament has removed the
court's power to decide what is an appropriate penalty in most speeding
and drink driving cases. 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.
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 defendant to give
evidence as to what speed the defendant 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. Bear in mind that it is always preferable to
win a speeding case without disputing the reading, so I am not saying
that this is the best way to fight 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?
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 a
person as the driver of the vehicle at the time of the offence. This
must be done within 28 days of the date of the infringement notice. The
nomination needs to be made on a statutary declaration. The person who
is nominated will then be sent an infringement notice and she will then
be responsible for the fine and any demerit points that accrue. The
nominated person also has the right to nominate the actual driver 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
sending a statutory declaration to that effect. 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 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 2 years
licence loss for the owner.
Q. I just received 7 speed camera
fines in the mail, including 4 on a single day, with a total of 13
demerit points. What can I do?
There are
several options. You can 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 what the police will allege in court was the actual
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. A couple of 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 defendant 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 the problem of the devices having margins of error.
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. After 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.
Q. I was caught speeding in Victoria
at 40kmh over the speed limit. Will my NSW/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, however 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. 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 superior
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, then you can
expect parliament to 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. Even though speeding fine
activists can not think of any.
- 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)
Q. I don't think I have a defence.
What can I do?
You do not
need a defence to win your case. In any case, 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 get legal advice. Read this section on court process.
Q. Do you give free 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 traffic offences. Many courts
have a "duty solicitor" from legal aid helping defendants to
plead guilty. So if you want to plead
guilty (and lose demerit points and lose your licence), then
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 Cameras
Speed Camera Offences
Fines
Demerit Points
Inaccurate Speedos
Speed Camera Locations
Getting Legal Advice
Speeding Law Online Forum
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