The question above is probably the most common question asked in traffic matters. The answer will differ depending on your circumstances but there are a few general rules that can help to guide you through the quagmire of information out there.
The first thing to note is that Victoria has some of the toughest traffic penalties of any state in Australia. The Road Safety Act imposes mandatory sentencing provisions for all speeding offences exceeding 25km per hour and all drink driving offences exceeding 0.07 BAC. So what does this mean for you?
It means that if you, like many of my clients, have been issued with an infringement notice or Summons for exceeding the speed limit by 25km per hour then you must defend the charge or have it withdrawn if you want to keep your licence.
Unfortunately, the magistrate hearing your matter is not able to take your personal circumstances into consideration and is forced to issue a licence suspension if you plead guilty to an offence which carries a mandatory sentence. This means that pleading guilty often means dusting off your Myki and looking for the nearest bus stop.
Now you might say that you weren’t speeding or you weren’t going as fast as the police claim, or that their device wasn’t accurate because of the terrain surrounding the location. While some or all of these might be true for any given offence, the Road Safety Act allows the Court to assume that the speed shown on a radar device is correct unless you provide evidence to the contrary. This means individuals that choose to defend matters using their own testimony alone are almost always unsuccessful.
But it’s not all bad news. Most of the traffic matters that lawyers win are won or withdrawn because the police fail to comply with technical requirements of the law. There are numerous regulations relating to the testing and certification of radar devices and breath analysers. If the police have not complied with the regulations then their evidence will be inadmissible and the charges are often withdrawn.
By way of example, the Road Safety (General) Regulations stipulate that a radar device must be tested and sealed by a testing officer within the previous 12 months and that the testing officer must be satisfied that the device is in a ‘satisfactory electrical condition’ and has been properly calibrated to ensure that the margin of error is no greater than 2km per hour. The regulations state that the testing officer must keep records of their test for 7 years.
It is not uncommon for the police to have failed to perform the necessary certifications for their devices or for the records of those tests to be mysteriously absent. If this is the case, the evidence will be thrown out and the charges will be without basis. This means that you often won’t need that bus pass after all.
The take home message is this:
- If you have been issued with a traffic infringement that carries a mandatory penalty of licence loss then you must defend the charge if you wish to retain your licence;
- The magistrate cannot allow you to keep your licence no matter how dire your personal circumstances are;
- It is uncommon that traffic matters are won on the basis of your own personal evidence;
- Most traffic matters are won or lost on the basis of technical requirements relating to technology, testing and record-keeping.
If losing your licence is simply not an option for you, you cannot afford to leave stones unturned when it comes to scrutinising the police evidence. It is surprising how often the police have made a technical error in their paperwork and the charges are not able to proceed.
So if you’ve been issued with an infringement notice or Summons, get in touch with Lake Street Lawyers and let an expert sort things out.
The content of the FAQs and all other content on this website is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. We attempt to ensure that the Content is current but we do not guarantee its currency. You should seek legal advice from Lake Street Lawyers before acting or relying on any of the Content.