Procedures for driving offences

A driver who commits any driving offence may be dealt with in the following ways:

1 an infringement notice;

2 licence or permit suspension and deduction of demerit points (i.e. VicRoads’ licence and permit powers);

3 court action.

1  Infringement notices

What can infringement notices be issued for?

Infringement notices may be served for most driving offences. Infringement notices can be issued to owners of motor vehicles detected committing red-light offences, bus or transit lane offences, or certain speeding offences. Note that drivers committing these minor traffic offences may be detected by automatic detection devices (Road Safety (General) Regulation 2009). Infringement notices are issued by Civic Compliance Victoria (seeContacts”).

A driver who has received an infringement notice can either:

accept the penalty in the infringement notice; or

lodge a notice of objection.

Objections by motor vehicle owners

Motor vehicle 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 84BE RS Act); or

the name and address of the driver of the car could not be reasonably ascertained (e.g. the vehicle had been stolen) (s 84BE).

If a motor vehicle 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 Fines and infringements).

Objections by drivers

Drivers are entitled to object to infringement notices by lodging a notice of objection.

Notices of objection should be lodged within 28 days of the issue of the infringement notice; otherwise, the penalty in the infringement notice automatically applies.

An objection notice must be lodged at the address mentioned in the infringement notice.

Lodging an objection ensures the matter is heard in court. This applies regardless of whether or not the driver pleads guilty.

Those who are guilty may wish to have their matter heard in court to try to minimise the penalty (i.e. to avoid losing their licence or to obtain a lower fine). However, automatic penalties usually apply for drink-driving, drug-driving, speeding and traffic offences.

Infringement notice withdrawal

It is possible for a driver who has had a good record for at least two years, and who has been charged with a minor traffic offence (e.g. speeding less than 10 kph over the speed limit) to have the charges withdrawn and replaced with an official warning.

Drivers who have charges withdrawn and replaced with a warning are not eligible to have future offences withdrawn for at least two years.

To ask for charges to be withdrawn and replaced with a warning, write to the Penalty Review Section (seeContacts”).

Penalty enforcement

VicRoads can suspend a driver’s licence and their car’s registration if they have not paid their traffic infringements (see3 Court powers to cancel or suspend drivers licences and permits”).

For details of the enforcement of payment for infringement notices through the Infringements Court system, see Fines and infringements.

2  VicRoads’ licence and permit powers

Demerit points system

VicRoads records demerit points against drivers licences for driving offences (between 1 and 10 points can be recorded for each offence). See the “Demerit points incurred for common offences” table.

Drivers who accrue a certain number of demerit points have their licence or permit suspended (the number of points accrued before a suspension occurs depends on the type of licence or permit held).

Demerit points are incurred on the date of the offence, not the date of the court hearing (if any).

Full licence holders may have their licence suspended for three months if they incur 12 or more demerit points in a three-year period (s 36(1)(a)).

If probationary licence holders accrue five or more demerit points in any 12-month period (or 12 or more demerit points in any three-year period) they may have their licence suspended for three months and have their probationary licence period extended by six months (s 46B).

All drivers incur an extra two-month suspension for each four points incurred over 12 points (s 46B).

Demerit points incurred for common offences

Offence

Demerit points

Red-light offences

3

Careless driving

3

Use of mobile phone while driving

4

Failure to display P-plates

3

Failure to wear a seatbelt or helmet

3

More than 45 km/h over the speed limit

8

35 to 45 km/h over the speed limit

6

25 to 35 km/h over the speed limit

4

10 to 25 km/h over the speed limit

3

Less than 10 km/h over the speed limit

1

Option notice

All drivers who incur the maximum demerit points are sent a notice that gives the driver two choices:

1 Accept the licence suspension, which will commence at a time specified in the notice; or

2 Request VicRoads to not suspend the licence or permit for 12 months. If any points are incurred within this 12-month period, the suspension will be double the initial penalty (i.e. at least six months).

VicRoads’ powers to vary, suspend and cancel licences

VicRoads can vary, suspend and cancel drivers licences and permits.

VicRoads can vary a drivers licence or permit by excluding categories of vehicles that can be driven, or by varying the conditions by which the drivers licence or permit is held (s 24(1)(c) RS Act).

VicRoads can suspend drivers licences when drivers have been ordered to complete safe driving courses for various “hoon driving” offences and have failed to do so (s 84BN). The licence remains suspended until the driver provides proof to VicRoads that they have completed the safe driving program (s 84BN).

VicRoads must suspend a drivers licence or permit if it is satisfied that the driver is disqualified from driving in another state or territory (reg 79(2) Drivers Regulations).

Drivers cannot evade licence suspension and cancellation by driving in Victoria using an interstate or overseas licence. In fact, licence suspension or cancellation, whether by the Victorian courts or by VicRoads, means that the person cannot drive in Victoria for the period of the licence disqualification, even if an interstate or overseas licence is held.

VicRoads can cancel or suspend the drivers licences or permits of people who have not paid fines, court-ordered costs or restitution in connection with offences relating to driving a motor vehicle (or who have failed to come to a suitable arrangement with VicRoads) (reg 79). This provision applies to traffic fines, parking fines, and to fines for offences such as theft of a motor vehicle. VicRoads must give a driver 28 days’ notice that they plan to suspend their licence.

VicRoads may suspend, cancel or vary a drivers licence or permit in certain other circumstances (e.g. due to illness it is dangerous for the person to drive (reg 78)).

VicRoads’ powers to suspend car registrations

The sheriff can direct VicRoads to suspend the car registration (and the drivers licence) of drivers who fail to pay infringement warrants issued for failure to pay infringement notices (ss 9AA, 24(1A) RS Act). This suspension finishes if appropriate arrangements are made to pay the outstanding fine or to otherwise comply with other requirements regarding payment (ss 9AB, 24(1B)).

3  Court powers to cancel or suspend drivers licences and permits

Overview

For more serious traffic offences, the driver may be issued with a summons, or a Notice to Appear, or they may be arrested. These options lead to the involvement of the courts.

Courts have both specific and general powers to suspend licences. Certain driving offences result in automatic licence cancellation or suspension (e.g. drink-driving and speeding).

For other driving offences, magistrates have the discretion to suspend or cancel drivers licences. Magistrates also have general powers to suspend or cancel drivers licences for offences connected with driving (s 28 RS Act)

Courts may also cancel licences for certain Crimes Act 1958 (Vic) offences (see s 89, 89A Sentencing Act 1991 (Vic) and Sentencing in the Magistrates’ Court).

Summons (charge with summons)

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 (able to be heard by a magistrate alone, rather than a judge and jury), 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 may be adjourned and a warrant may 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).

Time limits on summonses

All traffic offences are summary offences, except for culpable driving and failing to stop or render assistance after an accident where a person is killed or suffers serious injury. Summonses for summary offences must be lodged with the court within 12 months of the offence occurring (s 7 CP Act).

Notice to Appear

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 (s 24 CP Act).

Similar to the summons procedure, a defendant’s failure to attend court can result in an ex parte hearing or 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 ask the informant for a full brief of evidence. This usually requires a summary case conference (a meeting between the informant and the defendant or their legal representative) to have occurred (s 39 CP Act).

Arrest and bail

Police officers apprehending drivers for traffic offences can formally arrest drivers 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:

1 there is some doubt about the driver’s identity or current or future address;

2 the driver has been charged with a very serious offence (e.g. culpable driving or drink-driving); and

3 the driver gives the police trouble (e.g. refuses the breathalyser test; or the driver has a very high BAC and seems incapable of looking after themselves).

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) (seeDuty of person bailed” in How bail works). 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.