• Dean R Love & Associates, Barristers & Solicitors, have a wealth of experience in Drink-Driving and Traffic Law matters.

• Drink Driving & Traffic Law is a difficult and  complex area of law in which the relevant legislation is constantly being changed by Parliament, and where the outcome of the Court proceedings is often  highly uncertain.

• We specialize in all kinds of traffic  offences including:

Dangerous, Careless & Reckless Driving;

Driving under the influence of alcohol or drugs;

Refusing a breath or blood test;

Failing to stop after an accident;

Driving without a licence or an unlicenced vehicle;

Applications for extraordinary drivers licences;

Impounding & Confiscation of vehicles under “anti-hoon” laws.

We might even be able to assist you in avoiding a conviction!

• Your driver’s licence, and the use of your vehicle, is extremely important to you – as is the need to avoid a criminal record.  We an help you with these matters!

• Going to court for the first time can be a frightening experience! You should not face the court alone, and you need us to represent you to ensure that you get the best possible result!

• Drink driving & traffic law is a specialized area of law. We have over 12 years of experience in representing clients in this difficult but important area. We stay abreast of the frequent changes to legislation in this area and we know how to present your case- no matter how bad you may think it is!

• Drink Driving Offences are considered major offences under the law and thus attract heavy fines, periods of licence disqualification, impounding & confiscation of your vehicle, and possibly even terms of imprisonment.

• We know that you want to go to all lengths to make sure you stay on the road but that you also do not want to spend a huge amount of money. We will provide you with a realistic assessment of your case, and estimates of the costs of proceeding further at each stage of your matter.

• Your driver’s licence is something you cannot do without. Come in and see us for a consultation, and we will provide you with experienced, professional advice on what the possible outcomes are. Don’t risk your future!

An extraordinary driver’s licence can be granted at the discretion of the court. It allows you to drive in certain circumstances even though you have been disqualified from driving.

Can I get Legal Aid ?

It is unlikely that Legal Aid will be granted for legal representation at extraordinary driver’s licence applications. However, that is a decision for Legal Aid to make, based upon your application.

A duty lawyer may be able to give advice on:

• how and when to make applications,
• factors the court will consider, and
• general court procedure.

How to apply

Application forms are available from a court officer at any Magistrates Court. A fee of approximately $161.00 must be paid when you make the application. A court hearing date will be set at least 14 days after you lodge the application. You must go to court on the hearing date.

If the District Court or Supreme Court disqualified your licence you must apply to that court for an extraordinary driver’s licence.

How long do I have to wait to apply?

You can only apply for an extraordinary licence after a waiting period has passed. How long this is depends on the type of offence, and any prior traffic convictions. Waiting periods are from 21 days to 4 months, depending on the circumstances. There is a table of waiting periods at the end of this information sheet. Remember that a previous conviction under one section might count as a previous conviction under another section..doc Page 2

Get legal advice if you are not sure what waiting period applies to you.

What will the court consider?

The onus is upon you to demonstrate the degree of hardship necessary to justify granting an extraordinary driver’s licence. The court must consider the following things:

1. 1. The safety of the public generally

• The circumstances of the offence for which you lost your licence.
• Your previous driving history and traffic record.

1. 2. The character of the applicant

• Bring a responsible person to court who can vouch for your character (such as your employer).

1. 3. The circumstances of the case

• It will be very difficult to get an extraordinary licence unless you can show the court that:

(a) you cannot do your job without a licence; and

(b) you will lose your job if you are not granted an extraordinary driver’s licence.

• Bring your employer to court. They can tell the court about your employment situation and why you need a driver’s licence.
• If you are self employed you can explain your circumstances to the court yourself.
• Tell the court about any other circumstances that you think are relevant to your application. For example, change of address, change in marital status, pregnancy, health problems, injuries etc. You may need your licence for your children, rather than yourself, for example to get urgent medical treatment.

1. 4. The nature of the offence or offences leading to the disqualification

• Why was your driver’s licence disqualified? What happened and why?

1. 5. Your conduct since the disqualification

• Has your employment situation changed?
• Have there been any further convictions or charges laid against you?
• If you had a drinking problem, have you done something about it?

1. 6. The degree of hardship and inconvenience the applicant and their family would suffer if the court doesn’t make the order

• Financial hardship – give a breakdown of your income and expenses (eg: net wages or any government benefit, rent, mortgage repayment, other debts and expenses).
• Hardship to family – resulting from your loss of licence.
• Any other hardship that may be relevant (eg: loss of job or other opportunities).

If you are representing yourself in court:

• Write down what you want to say about each of these things, so that you don’t forget anything.
• Be ready to answer questions about why you can’t use other means of transport, and why someone else can’t drive for you.
• Be ready to accept conditions that only let you drive when you absolutely need to.

What if my licence has been suspended for unpaid fines?

If your licence has been suspended because you have not paid fines, you cannot apply for an extraordinary driver’s licence. You must pay the fines, or get time to pay from the Registrar of the Fines Enforcement Registry.

What if my licence was disqualified in another state?

You cannot get an extraordinary licence unless your driver’s licence was disqualified for an offence against a Western Australian law. You cannot apply for an extraordinary driver’s licence if your driver’s licence is disqualified by the laws of another state, or is suspended in another state.

What conditions will an extraordinary licence have?

The court can attach any conditions to your extraordinary licence that it thinks fit. Some of the more common conditions are:

• the days/hours during which you can drive
• the purposes for which you can drive (work or medical reasons)
• where you can drive (for example, particular roads or area, distance)
• the vehicle or class of vehicle that you can drive.

If your circumstances change you can apply to the court for a variation of the conditions of your extraordinary licence.

What if I breach a condition of an extraordinary licence?

If you breach any of the conditions of your extraordinary driver’s licence you can be fined up to $1200. The court also shall cancel your extraordinary licence unless it thinks that a fine alone is adequate. A fine only would normally occur for a very minor breach of the extraordinary licence.

What is a “special application”?

A “special application” allows you to get an extraordinary driver’s licence sooner than usual. A special application can only be made where you have been disqualified for a first offence of Excess 0.08, Driving Under the Influence (DUI) or Fail to Comply. The waiting period is 21 days. For a special application to succeed, you need to show circumstances of “extreme hardship”. Get legal advice before you decide to make a “special application”.

What if I had a probationary licence?

If you had a probationary licence cancelled by the Magistrates Court or Children’s Court seek legal advice.

Avoiding A Criminal Record – A Spent Conviction Order

A Spent Conviction Order is a court order that a criminal conviction is “spent” so that the defendant may not have to acknowledge that conviction. In some circumstances, it is as if the conviction does not appear on their criminal record.

A Spent Conviction Order does not apply in every situation. Sometimes the defendant will have to declare or acknowledge a conviction even if a Spent Conviction Order was made when they were convicted.

When will the Court make a Spent Conviction Order?

When the defendant has been convicted of an offence (by pleading guilty or by being found guilty at a hearing or trial) the court may sentence them to some penalty. At the time of sentencing, the court may also make a Spent Conviction Order (SCO).

A court cannot make a SCO if the defendant is sentenced to a term of imprisonment, a suspended term of imprisonment or an Intensive Supervision Order.

A court cannot make a SCO unless

(a) The Judge or Magistrate considers that the defendant is unlikely to commit such an offence again;

(b) The Judge or Magistrate considers that they should be relieved of the negative effects of a conviction because the offence itself was trivial or because of the defendant’s previous good character.

An SCO will not be given to a defendant automatically or simply because they want to have a clean record for future employment, travel, business or other purposes. If the defendant wants an SCO, they should try to support their claim firstly, that they are unlikely to commit that offence again and secondly, that the offence was trivial or that they are a person of good character.

One way of doing this is to bring character references from someone who knows the defendant is a person of good character and can state that this offence was out of character for them. The defendant may also be able to show by the circumstances of the offence and by their previous good record that this offence was a “one-off” and that they will not re-offend.

What does a Spent Conviction Order do?

If the defendant is asked about their criminal record, they may not have to mention a conviction if a spent conviction order was made.

When the defendant is sentenced for an offence and an SCO is made, in some situations, they will not have to acknowledge that they were charged with and convicted of that offence. There are several exceptions, outlined below, when the defendant will have to disclose their conviction even if an SCO was made.

People cannot usually discriminate against the defendant for having a conviction if an SCO was made.

It is unlawful to discriminate against a person on the grounds that they have a conviction where an SCO was made. This applies to employers, contractors, professional or trade organisations, employment agencies and qualifying authorities. If someone does discriminate against a defendant because of a conviction for which an SCO was made, they may have grounds for a complaint under the Equal Opportunity Act. Once again, there are several exceptions to this general rule where it will be lawful to discriminate against the defendant despite an SCO having been made.

What are the Exceptions? (when must the defendant disclose a spent conviction)

General exceptions

If the defendant was given an SCO, it may not help them in the following situations if they:

a) Have matters being considered by the Parole Board or the Supervised Release Review Board;

b) Are being considered for appointment as a Justice of the Peace;

c) Are being considered for appointment as a police constable, special constable, Aboriginal aide or police cadet;

d) Are being considered for employment as a prison officer;

e) Are being considered for employment under the Gold Corporation Act 1987;

f) Are being considered for the grant of a licence as a casino key employee or casino employee under the Casino Control (Burswood Island) (Licensing of Employees) Regulations 1985;

g) Are applying to be licensed as a security agent or security guard;

h) Are applying for the issue of a licence under the Firearms Act 1973.

i) Being considered for authorisations under the Court Security and Custodial Services Act 1999 or the Anti-Corruption Commission Act 1988.

If the defendant is asked about prior convictions in any of the above situations, they are not lawfully entitled to ignore spent convictions. All convictions can be taken into account when assessing their character.

Exceptions for the protection of children

If a defendant is being considered for certain jobs involving children and they have been convicted of certain offences and given a spent conviction order, an employer may lawfully discriminate against them on the basis of the conviction. The relevant offences are:

a) Offences in Chapter 22 of the Criminal Code entitled “offences against morality”;

b) Offences in Chapter 28 of the Criminal Code entitled “homicide, suicide, concealment of birth”;

c) Offences in Chapter 29 of the Criminal Code entitled “offences endangering life or health”;

d) Offences in Chapter 30 of the Criminal Code entitled “assaults”;

e) Offences in Chapter 31 of the Criminal Code entitled “sexual offences”;

f) Offences in Chapter 33 of the Criminal Code entitled “offences against liberty”;

g) The offence of child stealing under section 343 of the Criminal Code;

h) The offence of desertion of children under section 344 of the Criminal Code.

If a defendant has been convicted of any of these offences and they were given an SCO, it may not help them in the following situations if they are:

a) Being considered for employment by some charitable organizations;

b) Being considered for appointment as a teacher;

c) Applying for a licence or permit to conduct a care centre or pre-school centre;

d) Applying for a licence or permit to provide a child care service;

e) Being considered for any form of employment normally carried out wholly or partly within the precincts of a school, care centre, pre-school centre or place where a child care service is conducted;

f) Being considered for licensing as a foster parent;

g) Being considered for participation in the safety house scheme organised by the Safety House Association of WA;

h) Applying to be assessed for suitability for adoptive parenthood.

Can a defendant apply for an old conviction to be “spent”?

If a defendant has convictions more than 10 years old, they can apply for an order to have them spent in the same way as if a Spent Conviction Order had been made. This is done under the Spent Convictions Act 1988.

Old convictions are either “serious convictions” or “lesser convictions”. A serious conviction is where the penalty given was imprisonment for more than one year or a fine of $15,000 or more. A lesser conviction is where the penalty was imprisonment for one year or less or a fine of less than $15,000.

Serious convictions

A serious conviction may become spent by applying to the District Court after a waiting period has expired. The waiting period is generally 10 years after any relevant term of imprisonment has finished. The Judge will decide whether to make the defendant’s conviction spent taking into account the following factors:

(a) The length and kind of sentence imposed when the defendant was convicted;

(b) The length of time since the conviction was made;

(c) Whether the conviction prevents the defendant from working in a particular trade or business;

(d) The offence and how serious it was;

(e) The circumstances in which the offence was committed;

(f) The defendant’s personal circumstances at the time of the offence and at the time of the application;

(g) Any public interest to be served by not making an order.

The application should be detailed and must be supported by affidavit. The defendant should seek legal assistance in applying to have a serious conviction spent.

Lesser convictions

A lesser conviction becomes spent by applying to the Commissioner of Police more than 10 years after the conviction or, if the defendant was imprisoned, 10 years after any term of imprisonment is finished. The defendant must not have incurred any further convictions in the meantime.

Applications can be made by filling out a form at the local police station. The defendant will need proof of identity. If the application is correctly made, the Commissioner of Police must issue a certificate confirming that the conviction is spent. The Commissioner does not have discretion.

Offence of Driving an Unlicensed Vehicle

A vehicle licence required for vehicles such as cars, caravans and trailers when used on a road

Using a vehicle on a road without a licence is an offence under s15 of the RTA unless:

• The vehicle is being towed by a tow truck or the driver has a permit to drive vehicle to a licensing centre or place of repair; or
• The driving within 15 days after expiry of the licence; or
• If the driver is not the owner of the vehicle and they did not know that the vehicle was unlicensed.

Offence of Driving Without a Licence

It is an offence to drive on a road without a valid driver’s licence. Three elements need to be established beyond a reasonable doubt by the prosecution –

• The defendant drove a motor vehicle;
• Driving occurred on a road;
• The defendant did not hold a licence or was under disqualification at the time of driving.

Section 5 of RTA defines a “driver” as a person in control of a motor vehicle – control is the key factor in deciding if someone was driving:

• Steering a car being towed constitutes driving
• A person pushing a car from the driver’s door and steering with one hand does not constitute driving

It must be established that the defendant drove the next element the prosecution need to establish is that the driving occurred on a road – (a privately owned access road to an Alumina Refinery constituted a road within the meaning of the RTA). It must also be established that the defendant was not licensed and if it is alleged that the offence was aggravated then the prosecution must establish the disqualification. There are a number of reasons why a person would not have a valid driver’s licence:

• Failed to renew fee licence
• A person has come to WA from interstate or overseas and has been relying on their interstate or overseas licence for a greater period than that specified in the RTA

(A person from overseas or interstate can drive for 1 year on valid overseas or interstate licence unless intend to take up permanent residence in WA in which case can drive for 3 months on overseas or interstate licence).

The offence aggravated if driver has had been disqualified from driving with licence either being cancelled (right to drive terminated) or suspended (right to drive terminated on a temporary basis) or if the driver has been refused a licence. A licence can be:

• Suspended by the court or
• Suspended by the FER for non payment of fines or infringements
• Suspended for 3 months when accumulate 12 demerit points within a 3 year period

Infringements & Demerit Points

The Road Traffic Code sets out traffic infringements and number of demerit points each infringement attracts. If a person receives a period of disqualification then they do not also get the demerit points (s103 (3a)).Notification of a demerit point suspension needs to be served by the police for the suspension to operate.

Where a person receives a period of disqualification and also has their licence cancelled and the period of disqualification finishes but they have not reapplied for their licence and the person drives – they do not commit the aggravated offence of driving “while still legally disentitled” just the simple no MDL offence.

Where the defendant was unaware of the disqualification and could not reasonably be expected to have known then may be able to raise mistake of fact defence under s24 RTA. If the licence disqualification came about as an exercise of discretion such as under the fines enforcement system then a defence under s24 may be applicable.

A person charged with no MDL may have a defence of mistake of fact open if at the material time he had not received a notice of licence suspension

Offences connected with motor vehicle accidents

• Fail to stop and provide details after accident where property damage or injury. The obligation is to stop for a reasonable period to provide details and produce licence if required. If the driver was not aware of the accident then this may afford them a defence.

• Failing to provide assistance to injured person after caused injury– if there is callous disregard for the injured person then the Court has option of imposing up to 12 months imprisonment

• Failure to report accident to police offence unless reasonable cause believe damage less than $1000 and each owner present at scene of accident.In the event of injury or death, an accident must be reported. The owner of vehicle must notify driver if a person is injured or has died – there may be a sentence of imprisonment imposed for failing to provide this information. The police officer needs to make it clear to the person that they are required to answer a question as to who was the offending driver – it is not enough that the officer requests the information.

• Failing provide name and address or misleading police

• Failing to give name and address or false name or address when driver

• Failing to stop

• Fail produce MDL

• Fail as witness to traffic accident to give name and address to police officer. Where officer reasonable grounds believe committed offence against RTA – obliged provide name and address.

• False plates, licence or registration deception offences

• ‘Double or Nothing’ is an option where eligible drivers who have accrued 12 or more demerit points can elect once they have been served an Excessive Demerit Points Notice. By electing the Double or Nothing option a driver can continue to drive on a 12 month Good Behaviour Period.
• However, if a driver accrues more than one demerit point in the 12 month Good Behaviour Period or if they commit an offence which results in a disqualification period, they will be disqualified for double the original disqualification period.
• By electing to undertake the Double or Nothing option you will not be disqualified from driving, which would normally happen when accruing 12 or more demerit points. Although you can continue to drive, for the next 12 months you must not commit any further driving offences.

Important notes:

• The Double or Nothing option replaces the disqualification period associated with the demerit points you have accrued.
• The Double or Nothing (Good Behaviour Period) lasts for 12 months.
• Committing a driving offence that breaches the Good Behaviour Period will result in a disqualification period which is double the original disqualification you received.
• You have 21 days from when you are served the Excessive Demerit Points Notice to elect to continue to drive by taking the Double or Nothing option. Once this deadline has lapsed, you cannot elect to take the Double or Nothing option.
• You can no longer apply for an Extraordinary Licence if you have been disqualified due to excessive demerit points. If you are currently driving on an Extraordinary Licence and you get a subsequent demerit point disqualification you can still elect the Double or Nothing option. However, the Good Behaviour Period will be postponed until the disqualification period related to your Extraordinary Licence has ended.

What happens if I breach the good behaviour period?

If you breach the conditions of a good behaviour period a “Breach of Good Behaviour Period” notice will be issued to you disqualifying you from holding or obtaining a driver’s licence for double the disqualification period that was stated on the original Excessive Demerit Points Notice

What constitutes a breach of the good behaviour period?

A breach of the good behaviour period will occur if you commit:

• an offence for which 2 or more demerit points can be recorded under Part VIA of the Road Traffic Act 1974;
• offences for which 2 or more demerit points can be recorded under Part VIA of the Road Traffic Act 1974;
• an offence for which a court is required by law to disqualify you from holding or obtaining a driver’s licence; or
• an offence, the conviction of which results in you being disqualified by operation of the Road Traffic Act 1974 from holding or obtaining a driver’s licence.

How is a breach of good behaviour period disqualification activated?

When a person commits any of the offences listed above a “Breach of Good Behaviour Period” notice will be generated.

When does the disqualification take effect?

Once a “Breach of Good Behaviour Period” notice has been personally served, the disqualification period will take effect:

• The day immediately after the date of service of the notice; OR
• Immediately on the termination of any period of disqualification (including fines suspension) that the person may be subject to – whichever is the latter.

You cannot apply for the grant of an extraordinary licence if the disqualification is the result of an Excessive Demerit Points Notice or breach of a good behaviour period.