You will be charged for driving whilst suspended if you are caught driving a motor vehicle during the time in which you have been suspended by the RMS.
However, just because you have driven whilst your licence was suspended by the RMS, this doesn’t mean that you are automatically guilty of the offence.
If you were not aware that you were suspended by the RMS, you may be NOT guilty of the offence.
The law recognises this defence as an ‘honest and reasonable mistake of fact’.
You must prove on the balance of probabilities that you were not aware of the suspension or disqualification. You may have changed addresses at the time the RMS sent you a letter advising of the suspension, or may for some other reason not have received the letter.
In these circumstances, if the court finds that your explanation was honest and reasonable, the charges will be dismissed. Look at our guide for honest and reasonable mistake of fact for more information on how you can use this as a defence.
What is the Difference Between Disqualified, Suspended and Cancelled License?
According to Sections 53 and 54 of the Road Transport Act 2013, driving unlicensed is when a person drives on any road without holding the appropriate licence. The law also extends to employing or permitting any person to drive a vehicle without the necessary licence.
There is a range of classes included in unlicensed driving that each carries different penalties. These include:
- Suspended Licence: which is issued by the RMS or police for offences such as speeding, exceeding demerit points, medical reasons or breaching good behaviour bond. It is a criminal offence to drive whilst holding a suspended licence.
- Disqualified Licence: which is issued by a magistrate or judge as a part of a sentence from a previous traffic-related offence (e.g. driving whilst under the influence). Therefore, if you drive with a disqualified licence, you are in breach of a court order.
- Cancelled Licence: this is when you are caught driving whilst disqualified. Unlike a licence disqualification or cancelation, both the RMS and Court can cancel your licence for a certain period.
If you are from overseas and have an international licence or you hold a licence from another Australian state or territory, you do not need an New South Wales (NSW) drivers permit for the first three months of your residence in the State.
What are the Penalties for Driving While Suspended in NSW?
For a first offence, the maximum fine for driving while suspended is $3,300, and the maximum prison sentence is up to 6 months. The mandatory disqualification period is for 6 months unless the matter is dealt with according to Section 10 of the Crimes (Sentencing Procedure) Act. In this case, you will not be disqualified from driving. If you need more information, refer to our section 10 explanation.
In the case of a second or subsequent offence (within 5 years), possible outcomes include a $5,500 fine or maximum prison sentence of 12 months. Furthermore, the mandatory period of disqualification is 12 months.
If it is the case that you were suspended because you did not pay an outstanding fine, the mandatory disqualification period is 3 months. If this is the case, the courts will quite often deal with you through a section 10.
Generally, penalties that a court can impose for any criminal offence in NSW are:
- Section 10 – No conviction recorded
- Fine
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
- Prison sentence
Police Suspension Notice
NSW Police hold power to suspend your licence on the spot if they believe that you have committed a major traffic offence. A police suspension notice can either be issued immediately or within 48 hours following the alleged offence.
An immediate suspension notice means that you can no longer drive your vehicle from that exact moment. If you received your notice via mail, your suspension comes into effect from the moment it is handed to you.
According to Road Transport Act 2013, the circumstances where police can issue on the spot suspension notices include:
- Dangerous driving offences that cause serious or grievous bodily harm
- High range speeding (exceeding the designated speed limit by 30 to 40 km/hr)
- Mid to high range drink driving offences (blood alcohol content equal or higher to 0.08)
- Driving under the influence
- Street racing
- Aggravated burnout offences
- A person holding a learner licence is driving without the supervision of a full licence holder
If a police officer has issued you with an immediate suspension, you will need to go to court as you have been charged with an offence. You can appeal the licence suspension in a 28-day window from when it was first issued. However, you must ensure you do not continue driving whilst suspended.
In the case where the Court considers your appeal, they will inform you whether it has been dismissed (no change), dismissed with an altered suspension period or upheld (suspension is lifted).
License Suspension and Demerit Points
Demerit points are a nationwide system that acts as a form of driving record. The idea of the points system is to promote safe and responsible driving habits on our roads.
The number of points depends on the type of licence that you are currently holding. For learner and provisional P1 (red p-plates) drivers, if you record 4 or more demerit points, you will receive a 3-month suspension.
Provisional P2 (green p-plates) will face a 3-month suspension after recording 7 or more demerit points. In addition, if you hold a learner, P1 or P2 licence and have incurred two suspensions, the RMS may require you to complete a driver knowledge test, a driver education program (or both).
Full unrestricted licence holders can record up to 12 demerit points. Once past this point, your suspension term depends on the extent of the points incurred. For example:
- 13-15 demerit points result in a 3-month suspension
- 16-19 demerit points result in a 4-month suspension
- 20 or more demerit points results in a 5-month suspension
If you record only 13 demerit points, you have the opportunity to elect for a good behaviour bond for 12 months. However, your licence suspension penalty will double if you incur 2 or more demerit points within this period.
If you have 2 suspensions within 5 years, the RMS can ask you to sit a driver knowledge test, driver education program or both.
Drivers who hold a professional driver licence (someone who transports goods, accredited taxi, bus, hire car driver for work) have a 13 point threshold. If you incur more than 14 demerit points, you face the same penalty suspensions as full licence holders.
The Impact of a Conviction for Driving While Suspended
Driving with a licence suspended from you can have profound implications, as you may record a criminal conviction.
Having a record can negatively impact your future, as many jobs require no historical criminal convictions to work. Professions such as nursing, childcare, teaching or security are to name a few.
Not only does a criminal conviction limit your career potential, but it can also impact your ability to migrate and travel around the world. Countries such as Canada, United States, China and Japan have strict screening measures to ensure migrants with criminal backgrounds cannot enter.
If you have been caught driving with a suspended driver’s licence, investing in a defence lawyer is essential. Experienced criminal defence lawyers are skilled in reducing the offence penalty and increasing your chance of avoiding a conviction.
In criminal law, you can escape a criminal record with a non-conviction order (e.g. section 10), resulting in a bond. In this scenario, while found guilty by your local court, you will not be convicted. However, it’s vital that you cannot commit any other offence for the bond’s duration, or you will be liable for much harsher penalties.
LY lawyers offer an experienced and skilled team of Sydney-based criminal defence lawyers who provide you with the best legal assistance. If you have been caught driving with a suspended licence, contact us today for legal advice.
Frequently Asked Questions About Driving While Suspended in NSW
When does license suspension start in NSW?
If your licence is suspended on the sport by a NSW police officer, it will take effect immediately. Otherwise, the starting date of your suspension is on the notice that you will receive.
Can I get away with driving with a suspended license in NSW?
No, driving whilst suspended can result in severe punishments. A first offence results in a fine of $3,300 alongside a maximum prison sentence of 6 months.
For the second time and subsequent offences, you will receive a $5,500 fine with a maximum prison sentence of 12 months.
Getting your license back after a suspension in NSW
You can appeal a suspension within 28 days of its starting date. The process will require you to submit a notice of your appeal with relevant details (address, email address, suspension letter, driver licence number, credit or debit card for fee payment) in the NSW Online Registry. Following this, you will need to argue your case in your Local Court.
Alternatively, your notice of suspension will provide the date when you can legally drive again. If your licence hasn’t expired, you won’t need to reapply.
