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HABITUAL TRAFFIC OFFENDER DECLARATIONS

HABITUAL TRAFFIC OFFENDER DECLARATIONS
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Overview

There are many people who still have years, if not decades of disqualifications to serve arising from Habitual Traffic Offender Declarations. At present, there are two different types of applications that can be made to the Local Court to try quash or remove disqualification periods:

  • Driver licence disqualification removal applications; and

  • Applications to quash Habitual Traffic Offender Declarations.

Before the commencement of the Road Transport Amendment (Driver Licence Disqualification) Act 2017, a Habitual Traffic Offender Declaration (HTOD) was made for any three “relevant offences” within a 5 year period. For the purposes of an HTOD ‘relevant offences’ are any of the following:

  • Murder or manslaughter which involved the use of a motor vehicle;

  • Any offence under the Crimes Act where death or bodily harm is caused to a person through the use of a motor vehicle;

  • Predatory driving;

  • Police pursuit;

  • Failing to stop and assist after vehicle impact causing death or grievous bodily harm;

  • Any PCA offence;

  • Driving with a prescribed illicit substance in your system;

  • Driving under the influence;

  • Negligent driving causing death or grievous bodily harm;

  • Dangerous driving;

  • Menacing driving;

  • Refusing or failing to provide blood sample or submit to breath analysis;

  • Wilfully altering blood/breath/urine/oral sample;

  • Aiding, abetting, counselling or procuring the commission of any of the above offences;

  • Driving more than 30km/h over the speed limit;

  • Driving suspended/disqualified/cancelled; and

  • Making an application for a licence whilst suspended/disqualified/cancelled.

After the Road Transport Amendment (Driver Licence Disqualification) Act 2017 was introduced in NSW in October 2017, the Habitual Traffic Offender Scheme was removed. This means that the RMS no longer imposes a further five year disqualification period for three relevant offences within a five year period. However, the amendments did not remove existing disqualifications, which will still appear on a drivers record unless removed or quashed by a court.

The Second Reading Speech of NSW Parliament stated that studies showed lengthy disqualification periods did not act as a deterrent to committing further offences, particularly offences of unauthorised driving. The HTOD scheme was particularly onerous and often trapped people into a cycle of reoffending behaviour, especially in circumstances where their inability to drive prevented them from securing employment.

As the introduction of the new legislation in October 2017 removed the Habitual Traffic Offender Scheme, it also removed the power of Courts to make orders that quash existing Habitual Traffic Offender Declarations. section 220 of the Road Transport Act, which gave the court the ability to quash Habitual Traffic Offender Declarations.

Many legal practitioners and Magistrates found difficulty implementing the new provisions in these types of matters, which left some people who had existing HTODs stuck without a licence. The legislature since passed a further amendment which specifically states that an application to quash a Habitual Traffic Offender Declaration can still be made. This provision is contained in clause 65 of Schedule 4 of the Road Transport Act 2013 (NSW) which is extracted below:

65 Abolition Of Habitual Traffic Offenders Scheme

(1) A disqualification from holding a driver licence imposed under Division 3 of Part 7.4 before the repeal of that Division by the amending Act does not cease to have effect because of the repeal of that Division.

(2) Despite the repeal of Division 3 of Part 7.4, the power of a court under that Division (as in force immediately before its repeal) to quash a declaration of a person as an habitual traffic offender may continue to be exercised by a court despite its repeal.

(2A) In particular, section 220, as in force immediately before its repeal by the amending Act, continues to apply with the following modifications:

(a) a person who was declared to be a habitual traffic offender by operation of section 217 (as in force immediately before its repeal by the amending Act) may, on or after the repeal of section 220, apply to the Local Court for the declaration to be quashed, even if the Local Court was not the court that convicted the person of the relevant offence,

(b) the Local Court may determine the application to quash the person’s habitual traffic offender declaration, as if section 220 had not been repealed, even if the Local Court was not the court that convicted the person of the relevant offence.

(3) Despite the repeal of section 208 (2) by the amending Act, Division 2 of Part 7.4 continues not to apply in respect of a person who continues to be subject to a disqualification from holding a driver licence by the operation of this clause.

 

Making an Application to Quash a Habitual Traffic Offender Declaration: What you need to do and what you can expect:

An application to quash a Habitual Traffic Offender Declaration (HTOD) can be made in person at any NSW Local Court Registry, or through a lawyer instructed to act on your behalf. Before an application can be filed and accepted at the Court Registry, you will need to complete an approved form and present an approved NSW Traffic Record.

Once an application is filed and accepted by the Registry, it will be listed before a Magistrate at a later date. The Magistrate will determine the application by receiving any evidence such as character references, completion certificates of any Traffic Offender Programs completed, letter from the applicant, medical documents or employment documents as well as oral arguments. The Magistrate will also consider the documents filed with your application, such as your traffic history.

A Magistrate has power to quash the HTOD if he or she determines that “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.” This is why having evidence relevant to this consideration is very important to give you the best chance at a successful application.

Submissions can be made to the Magistrate by the lawyer representing you, or you can make oral submissions to the Magistrate if you are self-represented and making the application yourself.

If you have existing disqualification periods, you should seek tailored legal advice as to whether or not you are eligible to apply to the Court to quash your Habitual Traffic Offender Declarations or have the existing disqualification periods removed.

 

It is important to seek legal advice and assistance with your application to carefully prepare your application and give yourself the best prospects of success.

At KF Lawyers, we have experienced traffic lawyers who can assist you in setting aside disqualification periods. We understand the importance of having your drivers licence and being able to get around for work and other personal matters. If you wish to discuss your options, please contact KF Lawyers for a free initial consultation.

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