Drivers who commit driving offences may be dealt with in four different ways, by:
- infringement notices;
- summons;
- Notice to Appear; or
- arrest and bail.
Only the Infringement Notices procedure does not involve an automatic court hearing (see below and also Chapter 4*4 Infringements and Fines for further details regarding these procedures).
Infringement notices may be served for most driving offences other than serious offences. The driver has the choice of:
- accepting the penalty provided in the infringement (which may include licence loss, see: "Licence loss infringements", below); or
- lodging a notice of objection at the address mentioned in the infringement notice (see: information regarding Civil Compliance in "Detection device infringement notices", below).
Notices of objection should be lodged within 28 days of the issue of the licence loss infringement, otherwise the penalty mentioned in the notice automatically comes into operation. Infringement notices are of the following types.
There are three types of licence loss infringements.
1. Drink-driving infringements: First drink-driving offence where blood alcohol reading is under 0.15 – the penalty (if the driver does not object to the notice within 28 days) will be a fine and licence disqualification for the minimum period required (s.89C RSA) (see: "Drink-driving offences", below).
2. Drug-driving infringements: First offence of driving whilst illicit drug is present in driver's blood – the penalty (if the driver does not object to the notice within 28 days) will be a fine and licence disqualification for the minimum period required (s.89C RSA) (see: "Drug-driving offences", below).
3. Excessive speed infringements: 25 km/h or more over the speed limit – the penalty (if the driver does not object to the notice within 28 days) will be a fine and the minimum licence suspension period required (s.89D) (see: "Speeding", below).
Drivers are entitled to lodge a notice of objection to have their matter heard in court either if they are pleading "not guilty" or simply if they wish to minimise the penalty (i.e. to avoid licence loss or obtain a lower fine) (s.89A). However automatic penalties usually apply for these types of offences.
Traffic infringement notices (TINs) are issued for relatively minor traffic offences and involve a fine, although demerit points may also be incurred (see: "Demerit points system", below). (Also see: Schedule 3 of the Drivers Regulations.)
Drivers committing speeding offences, red light and other minor traffic offences may be detected by automatic detection devices Road Safety (General) Regulation 2009.
Infringement notices can be issued to owners of motor vehicles detected committing red light offences, bus or transit lane offences, or certain speeding offences. These notices are issued by Civic Compliance (see below for contact details). Owners may escape payment of the fine by making a statement to the Civic Compliance stating either:
- the name and address of the actual driver at the time of the alleged offence (in which case this statement can be used in court against this driver) (s.66(4) RSA); or
- that the name and address of the driver of the car could not be reasonably ascertained (e.g. in a stolen motor car situation) (s.66(3)(b)).
The owner's failure to pay the fine or provide the police with a statement will result in enforcement proceedings being taken against the owner under the Infringements Court system (see: Chapter 4*4 Infringements and Fines).
VicRoads has powers to suspend drivers' licences and car registration for unpaid traffic infringements (see: "Powers to suspend licences and car registrations", below). For details of the Infringements Court system for the enforcement of payment of infringement notices, see: Chapter 4*4 Infringements and Fines.
The police may decide to deal with a traffic offence by issuing a summons similar to that used for ordinary criminal offences. This summons (called a "Charge with Summons") may be served personally or by post on the defendant.
If a defendant fails to attend court in answer to this type of summons, the traffic offence alleged may be heard without defendant's appearance (an "ex parte hearing"). The reason for this is that nearly all traffic offences are summary offences and as such do not require the consent of the defendant before the hearing of the offence proceeds.
If the traffic offence allegation is serious, for example driving while disqualified or drink-driving (second or subsequent offence), the Magistrate may feel that imprisonment is an appropriate penalty and instead of proceeding to an ex parte hearing must now adjourn the hearing and issue a warrant for the absent driver's arrest. This is because Magistrates are now prohibited from making custodial orders and other specified penalties in respect of defendants in their absence (see: s.87 CP Act).
This is a new procedure introduced by section 21 of the CP Act. The Notice to Appear replaces the old summary offence Brief of Evidence and is increasingly used for simple traffic offences. The Notice to Appear is usually accompanied by the Preliminary Brief, which should contain details of charges, summary of offence and priors (if any) (s.24 CP Act).
Similar considerations apply to Notice to Appear as for the summons procedure (see above) as to the consequences of failure to attend court.
Where the defendant requires further information about the charges against them they can request a full Brief of Evidence from the informant. This usually requires a summary case conference to have occurred (s.39 CP Act).
Often, the police apprehending drivers for traffic offences will formally arrest them and release them from custody only when they enter into a bail undertaking in which they agree to appear at court on a later date. The police may do this where:
- there is some doubt about the driver's identity or current or future address;
- the driver has been charged with a very serious offence (e.g. culpable driving or drink-driving); and
- the driver gives the police trouble (e.g. refuses the breathalyser test or where there is a very high blood alcohol reading and the driver seems incapable of looking after themself).
In all cases, a driver who is arrested and bailed will receive a copy of the notice of bail undertaking that will state at which court the driver must appear and on what date, and another document called a charge (or "information"), which will state the offences alleged.
If a driver fails to attend a court hearing as required by their notice of bail undertaking, they may be charged with an offence under the Bail Act 1977 (Vic) (see: "Duty of person bailed", in Chapter 3*3 Bail).
It is also possible for the traffic charge against the driver to be kept alive indefinitely by the issue of a warrant for arrest.
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PROCEDURES FOR DRIVING OFFENCES :: Last updated: Thu Jul 1st 2010