Traffic Law

Criminal & Traffic Law: Your Traffic Lawyers in Sydney

Our traffic offence lawyers have expert and detailed knowledge of all NSW road transport legislation and associated regulations, as well as the conceptually difficult laws of evidence, a claim that can reasonably be made by very few law firms, but essential knowledge for traffic lawyers who act as court advocates in the field of Traffic Law. That means you can rely on your traffic offence lawyer to defend your matter in the Local Court and at Severity Appeals in the District Court, without the considerable added cost involved in retaining a barrister, the usual course for traffic infringement lawyers who are not expert Traffic Law practitioners.

Supporting you in every matter

Criminal & Traffic Law solicitors apply the same degree of expertise, diligence and determination to every one of the traffic offences in Sydney that we defend, whether a ‘major traffic offence’ that attracts a custodial sentence (e.g. dangerous driving, drink driving, driving under the influence of alcohol or other drug (‘dui’), negligent driving occasioning death or GBH, driving while disqualified/suspended/cancelled) – to less serious matters such as traffic infringements that attract a maximum penalty of a fine and demerit points.

A conviction for a ‘major traffic offence’ results in mandatory licence disqualification.

If a driver has convictions for three ‘major traffic offences’ in five years, Roads and Maritime Services disqualifies the driver from holding a licence for five years under a Habitual Traffic Offender Declaration in addition to any period of license disqualification ordered by the court. The solicitors at our office are expert at applications to the Local Court to have Habitual Traffic Offender Declarations quashed.

Our traffic lawyers’ success in having traffic matters dismissed at hearing in the Local Court is second to none.  Our traffic lawyers have a similar record of success in having traffic matters dismissed under section 10 of the sentencing act so that clients avoid a conviction and licence disqualification.

Our driving offence lawyers also have an impressive record in relation to Traffic Law conviction and severity appeals from the Local Court to the District Court. Whether you’re in Bankstown, Campbelltown, or anywhere across Sydney’s west, start a conversation with our legal team to find out how we can help you.

COMMON TRAFFIC OFFENCES

Driving in a manner dangerous involves driving on a road or road related area that creates a real or potential danger to the public. The driving must in reality be actually or potentially dangerous, and not merely speculatively. The court will take into account not only the actual amount of traffic present on the road at the relevant time, but also the amount of traffic that might reasonably be expected to be on the road.

At the same time, the same act was amended to now allow drivers 13 demerit points before licence suspension provisions are activated, and 14 demerit points in the case of a professional driver.

We have vast experience at defending all types of demerit point offences and have an excellent record of having alleged traffic infringements withrawn, or dismissed at hearing.

Amendments to the NSW Road Transport (Driver Licensing) Act, 1998 (Now Road Transport Act 2013), mean that even if a client admits guilt in relation to a traffic infringement we may still be able to prevent the imposition of demerit points by taking the matter to court and convincing the magistrate to dismiss the matter under section 10 Crimes (Sentencing Procedure) Act 1999.

Clients often instruct us to act in relation to demerit point offences when they have close to 13 or 14 demerit points and licence suspension is looming.

Drink driving involves driving a vehicle (or riding a motorcycle), or sitting in the driving seat of a motor vehicle and attempting to put the vehicle in motion, with more than the prescribed concentration of alcohol in your breath.

In relation to Drink Driving matters, we have access to supremely qualified Pharmacological Experts who provide us with opinions/reports highly regarded by the judiciary. These expert opinions often provide us with evidence that enables us to have charges against our clients withdawn (via representations to police), dismissed at hearing, or downgraded from high range to mid range and mid range to low range.

We have also helped many clients to have PCA charges dismissed by other means, such as: through evidence that the driver did not attemt to put the motor vehicle in motion; or evidence that the breathe analysis was carried out more than two hours after the time of driving; or evidence that the driver was ‘home’ at the relevant time.

Where clients instruct us to plead guilty to PCA offences, we sometimes recommend they enrol in a drivers awareness program, or the Interlock Program to increase our prospects of achieving optimal results in relation to sentence and licence disqualification.

A significant development in relation to PCA matters was the tightening of this area of the law in the Guideline Judgment handed down by the NSW Court of Criminal Appeal in (No. 3 of 2002) [2004] NSWCCA 303, making it more difficult to obtain a section 10 dismissal in relation to high range drink driving

(for details see :

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2004/303.html).

Novice-range drink driving relates to a breathe alcohol concentration of more than zero grams alcohol per 210 litres of breath, but less than 0.02gms alcohol per 210 litres of breath.

Maximum penalty is a fine of $1100 for a first offence and $2200 if the driver has a conviction for a major offence in the preceding 5 years.

For a first offence, the minimum licence disqualification period on conviction is 3 months, with an automatic period of 6 months. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 6 months, with an automatic period of 12 months.

Special-range drink driving relates to a breathe alcohol concentration of 0.02gms alcohol per 210 litres of breath, or more, but less than 0.05gms alcohol per 210 litres of breath.

Maximum penalty is a fine of $1100 for a first offence and $2200 if a conviction for a major offence in the preceding 5 years.

For a first offence, the minimum licence disqualification period on conviction is 3 months, with an automatic period of 6 months. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 6 months, with an automatic period of 12 months.

Low-range drink driving relates to a breathe alcohol concentration of 0.05gms alcohol per 210 litres of breath, or more, but less than 0.08gms alcohol per 210 litres of breath.

Maximum penalty is a fine of $1100 for a first offence and $2200 if the driver has a prior conviction for a major offence in the preceding 5 years.

For a first offence the minimum licence disqualification period on conviction is 3 months, with an automatic period of 6 months. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 6 months, with an automatic period of 12 months.

Mid-range drink driving relates to a breathe alcohol concentration of 0.08gms alcohol per 210 litres of breath, or more, but less than 0.15gms alcohol per 210 litres of breath.

Maximum penalty is 9 months imprisonment and/or a $2200 fine for a first offence and 12 months imprisonment and/or a $3300 fine if the driver has a prior conviction for a major offence in the preceding 5 years.

For a first offence, minimum licence disqualification period on conviction is 3 months, with an automatic period of 6 months. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 6 months, with an automatic period of 12 months.

High-range drink driving relates to a breathe alcohol concentration of 0.15gms alcohol per 210 litres of breath, or more.

Maximum penalty is 18 months imprisonment and/or a $3300 fine for a first offence and 2 years and/or a $5500 fine if the driver has a prior conviction for a major offence in the preceding 5 years,

For a first offence minimum licence disqualification period on conviction is 12 months, with an automatic period of 3 years. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 2 years, with an automatic period of 5 years.

A police officer may require a person to undergo a breathe test if he or she has reasonable cause to believe that the person is or was driving a motor vehicle on a road or road related area, or occupied the driver’s seat of a motor vehicle and attempted to put the vehicle in motion.

A police officer cannot require a person to undergo a breathe test if more than two hours has elapsed from the time of driving a motor vehicle (on a road or road related area).

A police officer cannot require a person to undergo a breathe test at the person’s home.

A police officer cannot require a person to undergo a breathe test if, as a result of injuries sustained by the person, it would be dangerous to the person’s medical condition.

A driver has a defence to a charge of refuse breathe test if the driver was unable to undergo a breathe test due to a medical condition.

Maximum penalty is a fine of $1100 for a first offence and $2200 if the driver has a prior conviction for a major offence in the preceding 5 years.

On conviction, the court has a discretion to disqualify a driver from holding a licence. No minimum disqualification period is stipulated.

A police officer cannot require a person to submit to a breathe analysis ifmore than two hours has elapsed from the time of driving a motor vehicle (on a road or road related area).

A police officer cannot require a person to submit to a breathe analysis if, as a result of injuries sustained by the person, it would be dangerous to the person’s medical condition.

A driver has a defence to a charge of refuse breathe analysis if the driver was unable to submit to a breathe analysis due to a medical condition.

Maximum penalty is 18 months imprisonment and/or a $3300 fine for a first offence and 2 years and/or a $5500 fine if the driver has a prior conviction for a major offence in the preceding 5 years.

For a first offence minimum licence disqualification period on conviction is 12 months, with an automatic period of 3 years. If the driver has a prior conviction for a major offence in the preceding 5 years, the minimum licence disqualification period on conviction is 2 years, with an automatic period of 5 years.

Following the decision of the NSW Court of Criminal Appeal in DPP v Partridge [2009] NSWCCA 75, in relation to offences of drive while licence is cancelled, suspended, or disqualified, when the court is determing whether the offence is a ‘second or subsequent offence’ for the purpose of finding the applicable automatic licence disqualification period, prior ‘major offences’, such as drink driving or drive manner dangerous, are no longer taken into account (see section 25A Road Transport (Driver Licensing) Act 1998.

Negligent driving involves driving a vehicle on a road or a road related area without using the same degree of care that an ordinary prudent person would deem necessary in the circumstances in order to avoid injuring or damaging the property of others who may be using the road. The nature, condition and use of the road and the amount of traffic which might reasonably be expected to be on the road is taken into account.

Where ‘negligent driving’ (see above) causes grievous bodily harm, a maximum penatly of 9 months imprisonment applies, with a minimum licence disqualification period of 6 months on conviction.

Where ‘negligent driving’ (see above) causes death, a maximum penalty of 18 months imprisonment applies, with a minimum licence disqualification period of 12 months on conviction.

On 18 March 2010, Skys Law was enacted, inserting s 51B into the Crimes Act, creating a new offence relating to police pursuits. The section applies if a driver has reasonable grounds to suspect that police are in pursuit and is required to stop, but does not stop, and then drives recklessly, or at a speed or in a manner dangerous to others. The offence carries a maximum penalty of three years gaol for a first offence and five years gaol for a second or subsequent offence.

We can challenge alleged camera detected speeding infringements on your behalf by challenging the accuracy of the instrument used to record your speed.

We can challenge alleged speeding infringements dected by by lidar radar by challenging the accuracy of the lidar instrument used to record your speed. We can also challenge alleged speeding infringements detected by a police officer making an estimate of your speed.

Where the speed alleged is admitted, we can seek to have the matter dismissed under section 10 Crimes (Sentencing Procedure) Act 1999, so that no fine is imposed and no demerit points are accumulated.

300 Use of mobile phones by drivers (except holders of learner or provisional P1 licences)

(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:

(a) the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone:

(i) is secured in a mounting affixed to the vehicle while being so used, or

(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or

(b) the phone is functioning as a visual display unit that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle, or

(c) the vehicle is an emergency vehicle or a police vehicle, or

(d) the driver is exempt from this rule under another law of this jurisdiction.

Maximum penalty: 20 penalty units.

Note 1. Emergency vehicle, park and police vehicle are defined in the Dictionary.

Note 2. See rule 299 (2) for examples of driver’s aids.

Note 3. Subrule (1) is not uniform with the corresponding subrule in rule 300 of the Australian Road Rules. Different rules may apply in other Australian jurisdictions.

(2) For the purposes of this rule, a mobile phone is secured in a mounting affixed to the vehicle only if:

(a) the mounting is commercially designed and manufactured for that purpose, and

(b) the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.

(3) For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if:

(a) the communication is received automatically by the phone, and

(b) on and after receipt, the communication itself (rather than any indication that the communication has been received) does not become automatically visible on the screen of the phone.

(3–1) This rule does not apply to the driver of a vehicle who is the holder of a learner licence or a provisional P1 licence.

Note 1. Provisional P1 licence is defined in the Dictionary and learner licence is defined in the Act.

Note 2. Rule 300–1 provides for the use of mobile phones by drivers who are holders of learner licences or provisional P1 licences.

Note 3. This subrule is an additional NSW subrule. There is no corresponding subrule in rule 300 of theAustralian Road Rules.

(4) In this rule:

affixed to, in relation to a vehicle, includes forming part of the vehicle.
body, in relation to a mobile phone, means the part of the phone that contains the majority of the phone’s mechanisms.
held includes held by, or resting on, any part of the driver’s body, but does not include held in a pocket of the driver’s clothing or in a pouch worn by the driver.
mobile phone does not include a CB radio or any other two-way radio.

use, in relation to a mobile phone, includes any of the following actions by a driver:

(a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle,

(b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone,

(c) turning the phone on or off,

(d) operating any other function of the phone.

300–1 NSW rule: use of mobile phones by drivers who are holders of learner and provisional P1 licences
(cf RRR, cl 47F)

(1) The driver of a vehicle (except an emergency vehicle or police vehicle) who is the holder of a learner licence or provisional P1 licence must not use a mobile phone, whether or not held by the driver, while the vehicle is moving or is stationary but not parked.

Maximum penalty: 20 penalty units.

(2) In this rule, mobile phone and usehave the same meanings as in rule 300.

Note. This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules.

Traffic Law