Mobile Phone Detection Cameras

From 1 December 2019, the NSW Government will have fixed and portable mobile phone detection cameras setup across the state to target driver's illegal mobile use.

Warning letters will be issued for the first 3 months, after that 5 demerit points and a $344 fine ($457 in school zones) will apply. Demerit points will double to 10 points during double demerit periods.

Legislation came into effect in July 2018 that enabled NSW to trial mobile phone detection camera technology between January and June 2019.

During the trial, the cameras detected more than 100,000 drivers using their phones illegally.

Truck Overloading Case

We recently had an interesting overloading case in court, which has received quite a bit of press attention. It has highlighted the unfairness for farmers and truck drivers when it comes to interpreting road rules.

In our client’s case, the truck was an overload by dimension width. If you have a heavy vehicle you are allowed a certain amount of allowed width. If you have a load that goes over that width, you are deemed to be overloaded or over-width and that is an offence.

Our client had purchased a NSW Class 3 Baled Commodities Dimension Exemption Notice from the RMS which enabled him to extend the load width from 2.5 metres to 2.7 metres. But, how the law works is that if you are over-width of that extended notice, it defaults back to the allowed width in the first place.

Unfortunately for our client, even though his width was only over his extended width by 2cm, the law deemed that he was over by 22cm. He was then facing a fine of $10,000.

Interestingly the law changed in the meantime, and the allowed dimension increased to 2.83cm. But, our client was still charged under the old laws.

This case highlighted the complexity of the road regulations, which are essentially in place to ensure road safety and save lives. There are difficulties with determining where responsibility lies with many offences. The rules also change regularly. People in the transport industry are expected to interpret and keep up to date with these rules, while making a living.

Fortunately in our client’s case, the magistrate took into account our client’s good driving record, the efforts he had taken to do the right thing (an ‘Overload’ sign displayed, warning lights, and flags on either side of his truck) and that fact that in reality the breach concerned 2cm. The magistrate dismissed the charge.

To read more about this case, see the ABC’s article on our client’s story.

Use Mobile Phone while Driving - next step legal guide

It is an offence to use a mobile phone while driving (r.300 Road Rules 2014). The courts view the act of using a mobile phone while driving as dangerous and reckless. If you are found guilty of this offence, you may face a heavy fine an loss of demerit points.

What does the prosecution need to prove?

The law is different depending on whether you hold a Learner, Provisional P1 (red) or Provisional P2 (green) licence, or a full licence.

Learners and provisional licence holders

If you are on your Ls, red Ps, or green Ps, it is illegal for you to use a mobile while driving, in all circumstances, whether or not the phone is held by you (Road Rules 2014 (NSW) reg 300-1).

For the charge to be proven against you, the prosecution must establish the following elements of the offence, beyond a reasonable doubt:

1. That you, the driver, were using a mobile phone illegally. It is illegal to use a mobile phone in the following ways:

• Holding a phone with your hand (including in situations where you are not on a phone call)

• Entering or typing anything into a phone

• Sending anything from a phone

• Looking at anything on a phone

• Turning a phone on or off

• Operating any other function of a phone

 Remember it is illegal to use a mobile phone while driving, whether or not it is hands free!

2. That you used the mobile phone while you were driving or stationery (but not parked)

Full licence holders

If you hold a full licence, it is illegal to use a mobile phone under certain circumstances (Road Rules 2014 (NSW) reg 300).

For the charge to be proven against you, the prosecution must establish the same elements as listed above, and also:

3. That your phone was not in an approved phone cradle or connected to your car via Bluetooth so as to be hands free

EXAMPLE SCENARIOS

Below are examples of situations where using your phone is illegal in New South Wales - this shows the situation for both Learner / Provisional Licences and Full Licence Holders.

Remember that the law is different depending on what kind of licence you hold and what state or territory you are in.

• Can I text while driving?

  • Learner, P1 or P2: No, you cannot type, swipe, touch or look at your phone while driving.

  • Full Licence: No, you cannot type, swipe, touch or look at your phone while driving.

• Can I use my phone while I’m stopped at a red light?

  • Learner, P1 or P2: No, you can only text if you are parked with the engine off.

  • Full Licence: No, you can only text if you are parked with the engine off.

• Can I take a photo while driving?

  • Learner, P1 or P2: No, this is illegal.

  • Full Licence: No, this is illegal.

• Can I sit my phone on my lap while driving?

  • Learner, P1 or P2: No, this counts as ‘holding’ your phone and is illegal.

  • Full Licence: No, this counts as ‘holding’ your phone and is illegal.

• Can I use social media while driving?

  • Learner, P1 or P2: No, this is illegal.

  • Full Licence: No, this is illegal.

• Can I make or receive a phone call while I am driving?

  • Learner, P1 or P2: No, this is illegal.

  • Full Licence: Yes, you can make or receive an audio phone call if your phone is entirely hands free. The phone must be connected to the vehicle via Bluetooth or placed in an approved phone cradle fixed to the vehicle, and controlled through voice activation. 

• Can I listen to or stream music from my phone while driving?

  • Learner, P1 or P2: No, this is illegal.

  • Full Licence: Yes, you can listen to or stream music from your phone if your phone is entirely hands free. The phone must be connected to the vehicle via Bluetooth or placed in an approved phone cradle fixed to the vehicle, and controlled through voice activation.

• Can I use the GPS or maps on my phone while driving?

  • Learner, P1 or P2: No, this is illegal.

  • Full Licence: Yes, you use the GPS on your phone if your phone is entirely hands free. The phone must be connected to the vehicle via Bluetooth or placed in an approved phone cradle and not obscure your view of the road.

• Can I receive a text, video message or email while driving?

  • Learner, P1 or P2: Yes, if the communication is received automatically and does not become automatically visible on your phone screen. You CANNOT look at, open or read any communication you receive while driving.

  • Full Licence: Yes, if the communication is received automatically and does not become automatically visible on your phone screen. You CANNOT look at, open or read any communication you receive while driving.

• Can I pass my phone to a passenger while I am driving?

  • Learner, P1 or P2: Yes, the process of giving your phone to a passenger in the car is not illegal.

  • Full Licence: Yes, the process of giving your phone to a passenger in the car is not illegal.

• Can I have my phone in my pocket when driving?

  • Learner, P1 or P2: Yes, as long as you are not using it for any other purpose.

  • Full Licence: Yes, as long as you are not using it for any other illegal purpose.

Penalty

The maximum penalty for this offence is a $2,200 fine (20 penalty units) (r.300 Road Rules 2014). 

A court imposed fine is in addition to any demerit points imposed by Roads and Maritime Services.

Defences

There are legal defences available to persons who have been charged with using a mobile phone while driving. Does your scenario fit into a legal defence? The following are possible defences:

Learners and provisional licence holders

As a learner or provisional P1 or P2 licence holder, it is illegal to use your phone while driving. The only exceptions to this are:

1. It is not illegal to hold a phone if you are in the process of passing it to another passenger in the vehicle

2. It is not illegal to use a mobile phone if you are parked and the engine is off

If you can provide evidence to show your phone was used in either of the circumstances outlined above, the prosecution may not be able to prove all the elements of the offence beyond a reasonable doubt.

Full licence holders

If you a hold a full licence, you have restricted use of your mobile phone while driving. You are allowed to use your phone in the following ways:

1. To make or receive an audio phone call

2. To perform an audio function (such as playing music)

3. As a driver’s aid (such as for navigation)

Your phone MUST also be hands free. To be hands free your phone must be:

1. Placed in an approved phone cradle and voice activated

2. Connected to the car via Bluetooth or other remote wireless device

If you can provide evidence to show you restricted your phone use to the circumstances outlined above, the prosecution may not be able to prove all the elements of the offence beyond a reasonable doubt.

Necessity

A defence may be available to you in extreme circumstances if you can prove it was necessary to break the law to avoid the death or serious injury of yourself or another person. This defence is called necessity. The leading case is R v Loughnan [1981] VR 443. The elements that need to be shown to successfully raise this defence are:

1. You broke the law to avoid certain consequences where you or someone else faced serious injury or death,

2. You honestly believed you were in a situation of imminent danger, and that belief was reasonable, and

3. The acts you took to avoid imminent danger were not disproportionate to the danger

You are required to provide evidence in order to raise this defence. This is called an evidentiary burden. The prosecution must then negate your defence beyond a reasonable doubt.

This defence is difficult to rely on. It usually applies in situations where people fear they or someone else will be killed or receive serious injury, because of a natural or human threat.

Duress

A defence may be available to you if an imminent threat of death or physical violence was made against you, or a family member, and that threat compelled you to break the law. This defence is called duress. The leading case is R v Lawrence [1980] 1 NSWLR 122. The elements that need to be shown to successfully raise this defence are:

1. A threat of death or really serious injury was made against you or a family member, and

2. You broke the law because you genuinely believed that if you didn’t, you or a family member would be killed or seriously injured (a subjective judgment), and

3. A reasonable person of the same age and sex as you, in the same situation, would have responded to the threat by acting in the same way (an objective judgment)

To rely on this defence, you are required to provide evidence to raise the issue. The prosecution then has to prove you acted voluntarily, and therefore, eliminate any reasonable possibility you acted under duress.

This defence is rarely relied on. It usually applies in serious cases for example when a death threat is made against you or a family member.

IMPACT

If you are found guilty of use mobile phone while driving, you may end up with a conviction on your record and a hefty fine.

If you are convicted, you will also lose 5 demerit points (10 points if it is a double demerit period).

Ideally you should speak to your solicitor before you elect to take the matter to court – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH USE OF A MOBILE PHONE WHILE DRIVING OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. You need early advice.  You will normally have to make a decision to elect the matter to court within 28 days. You should speak to us before you make this decision.

2. Gather material immediately. You should immediately type out your version of what occurred during the incident, including your conversation with the police, and provide this to your lawyer – details get lost in your memory over time. This step is crucial. If you have a passenger who saw what happened, you should obtain a signed statement from them as well.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved electing a traffic infringement to court, or attending court, or need help understanding your options, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Driving with Illicit Drug Present in your System - next step legal guide

It is illegal to drive with an illicit drug present in your system (Roads Transport Act 2013 (NSW) s111(1)). Police can detect the presence of illicit drugs in your system by testing your blood, urine or oral fluid (such as saliva). If illicit drugs are found, you can face heavy fines. Furthermore, this offence will result in automatic disqualification of your licence.

What is an illicit drug?

Prescribed illicit drugs include (Road Transport Act 2013 (NSW) s4):

• Marijuana or cannabis

• THC

• Speed

• Ecstasy

• Cocaine

What does the prosecution need to prove?

The prosecution does NOT have to prove that your driving was impaired.

As stated by the New South Wales Parliament (quoted in Budgen; Halper v R [2015] NSWDC 346):

“it need only be proved that the drug was present in the person’s sample. This sends a clear message to motorists that driving with any amount of these illegal drugs in the body is not tolerated in New South Wales.”

To be found guilty of driving with an illicit drug in your system, the prosecution has to prove:

1. That you:

• Drove a vehicle, or

• Occupied the driver’s seat of a vehicle and attempted to put it ‘in motion’, or

• Occupied the passenger seat next to a learner driver who was driving, and

2. Had a prescribed illicit drug present, or a combination of prescribed drugs present, in your oral fluid, blood or urine

RECENT CASES

In the case of Bugden; Halper v R [2015] NSWDC 346, two men were found guilty of having an illicit drug in their system while driving, despite taking the drug days before driving.

Both men were pulled over for a random drug test, which showed positive for cannabis.

The first man told the court that he smoked cannabis the previous weekend, and had not taken any illicit drugs the day he drove. The second man told the court he smoked a joint three days before driving.  

The court recognised that traces of cannabis in a person’s body are long lasting.

However, the court said parliament made the law with the intention “to prohibit driving with any traces of the illegal drug present in a person’s system.”

It does not matter whether or not a person’s driving is impaired by taking the drug, a person will be guilty just by having a trace of the illegal drug in their body. 

In this case, the first man argued he used the drug privately for therapeutic purposes, after being in a serious car accident years earlier. 

The second man argued this was the first time he had used cannabis, and provided references that showed he had good character and lacked a criminal record.

While both men were found guilty, fined $400, and had their licences disqualified, the court reduced the automatic disqualification period from 6 down to 3 months. On appeal both men received penalties where the court did not record a conviction against either of them subject to them completing a period of good behaviour.  

The court warned that people should be aware that if they are found guilty of driving with an illicit drug in their system, their driver’s licence is at risk.

PENALTy

In New South Wales, the law view’s driving with an illicit drug in your system as a major offence (Road Transport Act 2013 (NSW) s4). 

This means that if you are found guilty, even if it is your first offence, you face an automatic 6 month licence disqualification (Road Transport Act 2013 (NSW) s205). 

If this is the second or subsequent time you have committed the offence, you will face an even longer period of disqualification.

You may also face a tougher penalty if you have a criminal record for other offences. The maximum disqualification period is unlimited.

• Driving vehicle with illicit drug present - First Offence:

  • Maximum court imposed fine: $1,100

  • Automatic period of disqualification: 6 months

  • Minimum period of disqualification: 3 months

  • Maximum period of disqualification: Unlimited

• Driving vehicle with illicit drug present - Second Offence:

  • Maximum court imposed fine: $2,200

  • Automatic period of disqualification: 12 months

  • Minimum period of disqualification: 6 months

  • Maximum period of disqualification: Unlimited

DEFENCES

Driving with an illicit drug in your system is a strict liability offence, which means it can be hard to raise a defence. Whether you intended to break the law by driving with a drug in your system or not, is not relevant.

Necessity

A defence may be available to you in extreme circumstances if you can prove it was necessary to break the law to avoid the death or serious injury of yourself or another person. This defence is called necessity. The leading case is R v Loughnan [1981] VR 443. The elements that need to be shown to successfully raise this defence are:

1. You broke the law to avoid certain consequences where you or someone else faced serious injury or death,

2. You honestly believed you were in a situation of imminent danger, and that belief was reasonable, and

3. The acts you took to avoid imminent danger were not disproportionate to the danger

You are required to provide evidence in order to raise this defence. This is called an evidentiary burden. The prosecution must then negate your defence beyond a reasonable doubt.

This defence is difficult to rely on. It usually applies in situations where people fear they or someone else will be killed or receive serious injury, because of a natural or human threat.

Duress

A defence may be available to you if an imminent threat of death or physical violence was made against you, or a family member, and that threat compelled you to break the law. This defence is called duress. The leading case is R v Lawrence [1980] 1 NSWLR 122. The elements that need to be shown to successfully raise this defence are:

1. A threat of death or really serious injury was made against you or a family member, and

2. You broke the law because you genuinely believed that if you didn’t, you or a family member would be killed or seriously injured (a subjective judgment), and

3. A reasonable person of the same age and sex as you, in the same situation, would have responded to the threat by acting in the same way (an objective judgment)

To rely on this defence, you are required to provide evidence to raise the issue. The prosecution then has to prove you acted voluntarily, and therefore, eliminate any reasonable possibility you acted under duress.

This defence is rarely relied on. It usually applies in serious cases for example when a death threat is made against you or a family member.

IMPACT

If you are found guilty of driving with an illicit drug in your system you may end up with a conviction on your criminal record.

Your record can impact your future, including job prospects. Many professions require a criminal history check.

Having a conviction on your criminal record can also restrict your travel, or migration to other countries.

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A DRIVING WITH ILLICIT DRUG OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. You need early advice.  

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Licence Appeals - next step legal guide

Life without a licence can be extremely difficult. Your licence might be vital for your job or to care for your family. If you live on a property or in an area with limited public transport, getting by without a licence can be even more difficult. If your licence has been suspended by the Roads and Maritime Services (RMS) or the police, there may be something you can do about it.  

CAN I APPEAL MY LICENCE SUSPENSION?

If the police suspend your licence for one of the reasons below, you can appeal to the Local Court:

• You exceeded the speed limit:
  • by over 30km/hr and hold a full licence
  • by over 45km/hr and hold a full licence
  • by over 30km/hr but less than 45km/hr and hold a learner or provisional licence
• If the police have ‘immediately suspended’ your licence as you have been charged with:
  • a mid-range or high-range PCA driving offence
  • drag racing / street racing
  • driving whilst under the influence
  • failure to submit to a breath analysis
  • an offence involving serious injury to another person while driving

These offences are defined as 'appealable decisions' under section 266, and listed under section 224 of the Road Transport Act 2013 (NSW).

You can also appeal decisions made by the Roads and Maritime Services to suspend your licence because:

• you exceeded the speed limit by more than 30km/hr
• you exceeded the speed limit by more than 45km/hr
• you accumulated demerit points and are a provisional licence holder
• you are not a fit and proper person to hold a licence (eg. on medical grounds)

Are there any decisions I can't appeal?

You CANNOT appeal decisions if your licence was suspended because:

• you accumulated demerit points and are a fully licenced driver
• you hold an interlock driver's licence which was suspended by the RMS 
• you breached a good behaviour bond

how do I appeal a decision?

To appeal a decision, you must lodge a notice of appeal and file it with the Local Court:

• within 28 days of receiving your suspension notice (s.267(2) Road Transport Act 2013) in the case of a police suspension, OR
• within 28 days of receiving the RMS letter notifying that your licence will be suspended by the RMS 

You will need to provide evidence to support your application. It is helpful to have:

• Character references that show you are of good character
• A statement from you outlining why you need your licence (eg. work, family or any other reasons) and what hardship you or others face without it
• A letter from your employer, if you need your licence for work
• A letter from the doctor or medical certificate, if you need your licence because of health reasons or because you are someone's carer
• Evidence of limited public transport, such as a bus timetable or map showing the distance between your home and local services, if driving is the only way for your to get where you need

You should be aware that an appeal costs money. There is an application fee of $95. You will also need to pay for your lawyer to run the appeal.

Once you have lodged your appeal, you are generally permitted to continue driving until the Court date listed on your Notice of Listing and / or if your matter is adjourned to another date from the initial date. There are exceptions to this where you cannot drive until the appeal is determined - for example, in the case of an immediate police licence suspension, or if you are suspended on medical grounds. This can be tricky and you do not want to get it wrong. If you are unsure, you should speak to your lawyer about this.

If you do not lodge your appeal within 28 days, you lose your right to appeal altogether and the suspension will continue.  

What does the Court take into account?

When deciding on your appeal, the Court will generally take into account the following factors:

• the circumstances of the offence that caused your licence to be suspended
• your driving record
• whether you are a fit and proper person capable of holding a licence again
• your need for a licence

What can the Court do?

To vary or set aside a licence suspension, the Local Court has to be satisfied that you are a 'fit and proper person' to hold a licence. Whereas it is a lot harder to succeed in appealing an immediate licence suspension - you must show that there are 'exceptional circumstances' to justify that course of action (s.268(5) Road Transport Act 2013 (NSW)). 

There are three possible outcomes of a licence appeal:

1. Dismiss the appeal - this means that the suspension will continue

2. Vary the decision - the Court may reduce the suspension period

3. Uphold the appeal - this means the suspension period will be set aside and you can continue to drive

It is important to know that the Court's appeal decision is final and binding.

Ideally you should speak to your solicitor before you decide to lodge a licence appeal – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE LODGING A LICENCE APPEAL

1. Call Tankard's Law. Contact us immediately after receiving your suspension notice. Remember there are only 28 days to appeal a licence suspension decision. You will need proper advice as soon as possible. We can help you take the right action immediately. Contact us early, and we will help you achieve the best outcome. 

2. Gather material immediately. You should immediately type out your version of what occurred and provide this to us – this step is crucial. Write down the reasons why you need a licence, and the ways your work, family or health will be impacted without it. 

3. Prepare. Your case is important. Your best chance in achieving the outcome that you want is to prepare your case properly and thoroughly. Let Tankard's Law help you.

If you have a question about the processes involved in lodging an appeal, preparing for an appeal or attending court and running the appeal, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Proposed Changes To Drink & Drug Driving Laws

The NSW Government is proposing new laws where low-range drink and drug-drivers will be handed, by police, an on-the-spot fine of $561 and a 3 month licence suspension, while mid-range drink-drivers will have an interlock breath-testing device fitted to their car for 2 years.

People charged with low-range offences can choose to take their charge to court, at the risk of higher penalties.

These changes are designed to deter and change driver behaviour.

If the new laws are passed, the changes are expected to begin May 2019.

New Speed Limit Around Emergency Vehicles

From 1 September 2018, drivers travelling in both directions will need to slow down to 40km/h when they see emergency vehicles stopped, with their red and blue lights flashing. This new law is designed to protect our emergency service people, such as ambulance, police and fire. By not slowing down, you risk fine and loss of points. The NSW Government will monitor over a 12 month trial period.

Police Pursuit - next step legal guide

A police pursuit, otherwise know as Skye's Law, after a toddler was tragically killed by a driver trying to evade police, is considered a serious criminal offence by the courts and offenders are punished severely. A significant proportion of persons charged with police pursuit are sentenced to a jail term - 42% based on figures released by the Judicial Commission.

It is known as a Table 1 Indictable Offence, which means that the Prosecution can leave the matter to be finalised in the Local Court or can 'elect' the matter to be dealt with by a District Court. 

If you have been charged with police pursuit (s.51B Crimes Act 1900), then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. You knew, ought reasonably to have known or had reasonable grounds to suspect that police officers were in pursuit

2. You knew, ought reasonably to have known or had reasonable grounds to suspect that you were required to stop the vehicle – e.g. the sirens of the police vehicles were on and the police vehicles had been following you for some time

3. That you did not stop the vehicle

4. That you subsequently drove the vehicle recklessly or at a speed or in a manner dangerous to others – whether you are driving recklessly or at a speed dangerous to others will be determined based on the objective standard of ‘danger to the public’. The prosecution must be able to establish that your driving deviated from the standard of driving of the ordinary prudent driver (Buttsworth [1983] 1 NSWLR 658) and that it was so serious as to have potentially caused danger to others, not just actual danger (Hain (1966) 85 WN (NSW)). Significantly, the reckless or dangerous driving must be shown to have occurred after the pursuit commenced.

 

PENALTY

The maximum penalty for this offence depends on whether it is a first or second major offence:

• First offence – 3 years’ imprisonment
• A second major offence in the 5 years prior to the most recent offence charged – 5 years’ imprisonment

The minimum disqualification period is 1 year, with an automatic period of 3 years.  

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A POLICE PURSUIT OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. You need early advice.  

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Negligent Driving, Negligent Driving Causing Grievous Bodily Harm, Negligent Driving Causing Death - next step legal guide

Negligent driving

If you have been charged with driving negligently (s.117(1) Road Transport Act 2013), then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. You were driving a motor vehicle on a road - remember road also covers 'road related area' which is the side of the road or verge. It can also cover car parks and national parks. 

2. You were driving in a negligent manner – The Concise English Dictionary defines negligent as "careless, unheedful, inattentive". Negligence covers a wide variety of conduct. The most often used test, is that the prosecution must establish that you were driving, "in such a way that you departed from the usual standard of care used by others on the road and that is expected of a typical prudent driver in the same circumstances" (DPP NSW v Yeo (2008) NSWSC 953). An example of negligent driving might be a minor car crash caused by failing to keep a proper lookout.

Penalty

This is a fine only offence. Usually a person charged with Negligent Driving will receive a Traffic Infringement Notice which carries three (3) demerit points - this will occur if there is no accident or a minor accident. If the Negligent Driving involves a more substantial accident, the Police will usually lay a formal charge which is then returnable at court. If a Negligent Driving charge proceeds to court, the maximum penalty for this offence is a fine of $1,100 (10 penalty units) (s.117(1)(c) Road Transport Act 2013). 

There is no automatic disqualification for a Negligent Driving charge, however, a Magistrate has the discretion to order a disqualification period if they think it appropriate. 

Negligent driving occasioning grievous bodily harm / DEATH

Charges of negligent driving occasioning grievous bodily harm and negligent driving causing death are considered by the court to be very serious traffic offences (s.117(1) Road Transport Act 2013). In these circumstances, the prosecution must establish additional elements before being able to establish the offence beyond reasonable doubt:

1. You were driving a motor vehicle on a road - 'driving' means using the controls for directing the direction of the vehicle (Mercorella v Page (1975) 12 SASR 431).

2. You were driving in a negligent manner

3. Whilst driving in this manner, you caused another person grievous bodily harm or death – 'grievous bodily harm' is defined to include, "any permanent or serious disfigurement", and means that you caused harm of a really serious kind (Smith (1960) 3 ALL ER 161).

Penalty

The maximum penalty for this offence depends on whether it is a first or second offence. The penalties include:

• For a first offence:
  • if GBH : a $2,200 fine (20 penalty units) and/or 9 months’ imprisonment ; 
  • if death : a $3,300 fine (30 penalty units) and/or 18 months' imprisonment ;
• Second or subsequent offence:
  • if GBH : a $3,300 fine (30 penalty units) and/or 12 months’ imprisonment (s.117(1)(b) Road Transport Act 2013) ; 
  • if death : a $5,500 fine (50 penalty units) and/or 2 years' imprisonment (s.117(1)(a) Road Transport Act 2013). 

The minimum and automatic disqualification periods for this offence also depend on whether this is a first or second offence. The relevant disqualification periods include:

• First offence:
  • If GBH : 
    • Automatic disqualification period – 3 years’ disqualification
    • Minimum disqualification period – 12 months’ disqualification
  • If death : 
    • Automatic disqualification period – 3 years’ disqualification
    • Minimum disqualification period – 12 months’ disqualification
• Second or subsequent offence:
  • If GBH : 
    • Automatic disqualification period – 5 years’ disqualification
    • Minimum disqualification period –  2 years’ disqualification
  • If death : 
    • Automatic disqualification period – 3 years’ disqualification
    • Minimum disqualification period – 2 years’ disqualification

Case Examples 

• A person who is overcome by sleep is not necessarily guilty of driving negligently  
• It is not necessarily negligence to drive on the wrong side of the road at times 
• It was a defence to negligence that a person drove a car that suffered a mechanical defect

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A NEGLIGENT DRIVING OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. Do you have to provide a blood sample if requested? You need early advice.  

2. Gather material immediately. You should immediately type out your version of what occurred prior to and during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place, get their details and have them provide a written account of what happened. You should take photos of the scene of any accident, do a sketch of the area and look up the weather or sun location times on the Bureau of Meteorology website. 

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Toughened Driver Disqualification Laws

Attorney General Mark Speakman has announced that the NSW Government is expected to toughen driver licence disqualification sanctions on repeat offenders in late October 2017.

The new reforms give police stronger powers to impose longer sanctions as well as being able to confiscate rego plates or cars on-the-spot for repeat offenders. The reforms also enable certain drivers to apply to have their disqualification lifted early if they have complied with their disqualification. The Habitual Traffic Offender Scheme will also be abolished.

The rationale is that the current lengthy disqualification periods do little to deter offenders, so the new reforms are giving disqualified drivers an incentive to return to lawful driving.

For more information, visit the Department of Justice website.

Is it worth refusing a roadside breath test?

Daily Advertiser: Drunk man drives car into City Park Motel

The short answer is 'no'. 

Under the Road Transport Act 2013 a police officer has the power to submit you to a breath test if they believe that you were merely driving a car. If requested to submit to a breath test and you fail or refuse to submit, the officer may arrest you and take you to the station to submit to a breath analysis. 

If you refuse the roadside breath test this is a separate offence - max penalty of a fine and possible disqualification period at the court's discretion. 

If you refuse the breath analysis this is the same penalty as a High Range PCA. 

It is not worth compounding the problem by being charged with a PCA offence or Refusing to submit to a Breath Analysis as well as Refusing to submit to a roadside Breath Test. 

Driving Vehicle with Illicit Drug Present in Blood - next step legal guide

Since the commencement of random testing for illicit drugs in people's blood, which is similar to the testing for drink driving, the courts have been inundated with people charged with this offence.   This offence, commonly referred to as drug driving, is now more common than drink driving.

The police drug testing equipment tests for cannabis, methylamphetamine (speed/ice) and ecstasy only. 

The prevalence of the offence in the community has dictated that the courts place more weight on deterrence as part of the punishment process. This means that the courts will deliver harsher penalties to stop people from committing the offence again.

It is therefore essential - in order to have any chance of keeping your driver’s licence - for the matter to be prepared thoroughly, with a specific emphasis on ensuring that the character material is perfect. Please let us help you in this regard. 

The maximum penalty for a Drive Illicit Drug offence is $1,100 and an automatic disqualification of 6 months, with a minimum disqualification of 3 months, assuming that there are no other major traffic offences within a 5 year period.

If there is another major traffic offence within the last 5 years, the penalties increase to $2,200 with an automatic disqualification of 12 months, and a minimum disqualification of 6 months.  

YOUR NEXT STEPS WHEN YOU ARE ACCUSED OF A DRUG DRIVING OFFENCE IN NSW

1. Contact us. Early contact with your legal adviser is extremely important, so that you can start to take the right actions immediately, such as booking into a Driver's Education Program, seeing your General Practitioner or seeing a counsellor.   
2. Gather Material. Although you are tested on the day, it may be months before you see any paperwork. The Police will send out in the mail the Court Attendance Notice ("CAN") and Police Fact Sheet and this may be first indication that you have, in fact, been charged. You should go through these documents with your solicitor as soon as possible after your receive them. You should also type a short version about what happened on the day in question and the lead up to what happened. Witness statements can also be obtained and you should obtain a copy of your Roads and Maritime ("RMS") Traffic Record.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.  

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face, or if you need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.

Drink Driving – PCA offences - next step legal guide

The various drink driving charges are categorised dependant on the Blood Alcohol Concentration (BAC) reading / limits: Novice Range, Special Range PCA, Low Range PCA, Mid Range PCA, High Range PCA. More detail about the BAC limits and penalties are provided below.

The courts consider PCA offences as prevalent in the community and as such place more weight on deterrent aspects of punishment. 

This means that the courts will punish you more severely to deter others from committing the same offence or will give you a harsh penalty to prevent you from committing the offence again.

It is therefore essential to put your best case forward, backed up by well-considered and organised character material. This process is not just gathering material – to be most effective, character material should be tailored to your individual circumstances.

Let us provide you with an individualised list of material so that your case is presented in the best light.

The basic road transport rules in relation to PCA offences are as follows:

Novice Range PCA (BAC between .001 and .019) – applies to all licence holders that have a zero BAC limit such as:

• Learner drivers
• Provisional 1 (red P plate) drivers
• Provisional 2 (green P plate) drivers
• Visiting drivers / riders holding an overseas or interstate learner or provisional licence

Special Range PCA (BAC between .02 and .049) .02 BAC limits apply to:

•  Drivers of public vehicles such as taxi or bus drivers;
• Drivers carrying dangerous goods;
• Drivers of vehicles whose “gross vehicle mass” is greater than 13.9 tonnes;

Low Range PCA (BAC between .05 and .079) .05 BAC is the legal limit for all licences, including overseas and interstate licence holders

The maximum penalty for a Novice Range, Special Range, and Low Range PCA offence is $1,100 and an automatic disqualification of 6 months, with a minimum disqualification of 3 months, assuming that there are no other major traffic offences within a 5 year period.

If there is another major traffic offence within the last 5 years, the interlock licence provisions apply and the penalties increase to $2,200 with a licence disqualification period between 1 and 3 months in addition to a minimum interlock licence period of 12 months. 

Mid Range PCA (BAC between .08 and .149)

The maximum penalty for a Mid Range PCA offence is imprisonment for 9 months and a fine of $2,200 and an automatic disqualification of 12 months, with a minimum disqualification of 6 months, assuming that there are no other major traffic offences within a 5 year period.

If there is another major traffic offence within the last 5 years, the interlock licence provisions apply and the penalties increase to imprisonment for 9 months and a fine of $2,200 with a licence disqualification period between 6 and 9 months in addition to a minimum interlock licence period of 24 months. 

High Range PCA (BAC over .150) 

High Range PCA is one of the more serious traffic matters. In 2004 the New South Wales Court of Criminal Appeal (NSW CCA) delivered a guideline judgement where it gave guidance as to how a Local Court Magistrate or District Court Judge should deal with High Range PCA offences.

It indicated that if there are multiple aggravating features present to a significant degree or where there is a previous high range PCA, the person should go to jail.

The statistics relied upon by Prosecutors are that a person is 25 times more likely to have an accident if in the High Range PCA BAC range. 

The maximum penalty for a High Range PCA offence is imprisonment for 18 months and a fine of $3,300 and the interlock provisions apply which means a licence disqualification period between 6 and 9 months in addition to a minimum interlock licence of 24 months, assuming that there are no other major traffic offences within a 5 year period.

If there is another major traffic offence within the last 5 years, the interlock licence provisions apply and the penalties increase to imprisonment for 2 years and a fine of $5,500 with a licence disqualification period between 9 and 12 months in addition to a minimum interlock licence period of 48 months.  

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A DRINK DRIVING OFFENCE

1. Contact us. Early contact with your legal adviser is extremely important, so that you can start to take the right actions immediately, such as booking into a Driver's Education Program, seeing your General Practitioner or seeing a counsellor.   
2. Gather Material. You are often provided with a copy of the official BAS reading and Custody Management Record on the day of the offence. However, the Police will send out in the mail the Court Attendance Notice ("CAN") and Police Fact Sheet. You should go through these documents with your solicitor as soon as possible after your receive them. You should also type a short version about what happened on the day in question and the lead up to what happened. Witness statements can also be obtained and you should obtain a copy of your Roads and Maritime ("RMS") Traffic Record.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you. 

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.