People who commit driving offences may be dealt with in four different ways:
- infringement notices;
- Notice to Appear; or
- arrest and bail.
Infringement notices may be served for most driving offences other than serious offences. The driver has the choice of:
- accepting the penalty in the infringement (which may include licence loss, see “Licence loss infringements”, below); or
- lodging a notice of objection (the notice must be lodged at the address mentioned in the infringement notice; for more information, 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 in the notice automatically comes into operation.
There are three types of infringement notice:
- licence loss infringements;
- traffic infringement notices;
- detection device infringement notice.
There are three types of licence loss infringements.
For a first drink-driving offence where the offender’s blood-alcohol reading was under 0.15, the penalty (if the driver does not object to the notice within 28 days) is a fine and licence disqualification for the minimum period required (s 89C RSA) (see “Drink-driving offences”, below).
There are new offences of drinking alcohol while driving (s 49B) and drinking alcohol while accompanying an unlicenced driver (s 49C). Both offences only attract a traffic infringement notice and fine, provided the driver is not otherwise in breach of drink-driving laws.
For a first offence of driving while an illicit drug is present in the 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).
Traffic infringement notices are issued for relatively minor traffic offences and involve a fine, although demerit points may also be incurred (see “Demerit points system”, below; sch 3 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 Victoria (see below for contact details). Owners may escape paying the fine by making a statement that declares:
- 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
- the name and address of the driver of the car could not be reasonably ascertained (e.g. the vehicle had been stolen) (s 66(3)(b)).
If an owner fails to pay the fine or to provide the police with a statement, enforcement proceedings will be taken against them under the Infringements Court system (see Chapter 4.4: Infringements and Fines).
VicRoads can suspend a driver’s licence and their car’s registration if they have not paid their traffic infringements (see “Powers to suspend licences and car registrations”, below). For details of the enforcement of payment for infringement notices through the Infringements Court system, see Chapter 4.4: Infringements and Fines.
Drivers are entitled to object to infringement notices by lodging a notice of objection. This will ensure their matter is heard in court. This applies regardless of whether or not they plead guilty. Those who are guilty may wish to have their matter heard in court in an attempt to minimise the penalty (i.e. to avoid licence loss or obtain a lower fine) (s 89A). However, automatic penalties usually apply for drink-driving, drug driving, speeding and traffic offences.
The police may decide to deal with a traffic offence by issuing a summons that is similar to that used for ordinary criminal offences. This summons (called a “Charge with Summons”) can be served on the defendant in person or by post.
If a defendant fails to attend court in answer to the summons, the alleged traffic offence may be heard without the defendant being present (an “ex parte hearing”). This is because 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 (e.g. driving while disqualified or a second drink-driving offence), the magistrate may feel that imprisonment is an appropriate penalty. If this occurs, instead of proceeding to an ex parte hearing, the hearing will adjourn and a warrant will be issued 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).
All traffic offences except culpable driving and failing to stop or render assistance after an accident where a person is killed or suffers serious injury are summary offences. Summonses for summary offences must be filed (i.e. lodged with the court) within 12 months of the offence occurring (s 7 CP Act).
The Notice to Appear procedure was introduced by section 21 of the CP Act and replaces the old Brief of Evidence summary offence.The Notice to Appear is increasingly used for simple traffic offences and is usually accompanied by the Preliminary Brief, which should contain details of the charges and a summary of the offence and any priors (if any) (s 24 CP Act).
Similar to the summons procedure (see above), a defendant’s failure to attend court can result in an ex parte hearing, or in the hearing being adjourned and a warrant being issued for the defendant’s arrest.
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 the driver has a very high blood-alcohol reading and 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 states at which court the driver must appear and on what date, and another document called a charge (or “information”), which states 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 the driver’s arrest.
Procedures for driving offences :: Last updated: Sun Jun 30th 2013