Habitual Traffic Offenders NSW: In this "Boorman Lawyers - NSW Traffic Law" article we go into detail discussing a number of issues surrounding the Habitual Traffic Offender Declaration Scheme in NSW. In particular, we look at what it is, recent legal reforms which has abolished the scheme and what to do to apply to have an old Habitual Traffic Offender Declaration quashed by a Court.

Habitual Traffic Offenders (Prior to October 2017)

The Habitual Offender Scheme has been set up by the Roads Maritime Services (‘RMS’) which issues penalties to people who repeatedly commit serious traffic offences.

Under the Habitual Offender Scheme there are a number of circumstances whereby a person can be classed as a Habitual Offender, including the most common situation:

• If a driver accumulates 3 convictions for serious traffic offences or a relevant offence (as defined in a list provided in the “Relevant Offences” page) within a 5 year period then the driver will be declared as a “Habitual Offender” by the Courts and the RTA.

Very serious and harsh penalties will apply to any person who has been declared a Habitual Offender including being disqualified from driving for an automatic period of 5 years. This 5 year disqualification period will commence once any other period of disqualification handed down by the Court has expired.

For example if a person is given a disqualification period for their 3^rd major offence within a 5 year period then they will also be declared a Habitual Offender and receive a further 5 year period of disqualification on top of the penalties received for their 3^rdmajor offence.

The Court has discretion to order that a longer period of disqualification be issued on the person. For example this may include a disqualification for “life”.

Whilst the automatic disqualification period issued to a Habitual Offender is 5 years the Court has discretion to reduce that period of disqualification down to the minimum period of 2 years.

If you have committed your 3^rd major traffic offence within a 5 year period and you are looking at being declared a Habitual Offender by the Courts then we suggest you contact our office immediately – Call 1300 941 900.

We will devise a plan to help you reduce the period of disqualification imposed by the Court should you be declared a Habitual Offender. It is important that you contact us as soon as possible because there is no right of appeal against additional disqualification periods imposed for being declared a Habitual Offender.

What is a Relevant or Major Traffic Offence

If you have committed 2 previous relevant offences within the past 5 years then you will be declared a Habitual Offender by the Courts if you appear before the Courts for a 3rd relevant or major offence.

The following offences are considered major or relevant offences which will be closely looked at by the Courts:

• Murder or manslaughter
• Any offence under the Crimes Act 1900
• Drive recklessly/furiously/at a speed dangerous to the public
• Drive negligently and cause death or grievous bodily harm
• Menacing driving
• PCA (drink driving) offences
• Refuse/fail breath/blood/urine/oral test
• Alter a breath/blood/urine/oral test
• Aiding, abetting, counselling or procuring the commission of one of the above offences
• Drive more than 45 km over the speed limit
• Drive unlicensed (2nd offence)
• Drive/make application for licence while disqualified, suspended or cancelled

Remember if you have been charged for any type of traffic offence where you are required to attend Court and you have 2 convictions for any relevant offence listed above then we highly advise you to contact us immediately to find our whether or not you are at risk of being declared a Habitual Offender by the Courts.

How to Quash A Habitual Offender Declaration? 

There is a way you can have the Habitual Offender Declaration lifted and that is by making a specific Application to the Court.

In addition to the Application you will be required to attend the Court and convince the Court as to why the Declaration should be lifted or alternatively have the Habitual Offender Declaration period reduced.

In particular the Court needs to be convinced that the disqualification period imposed through the Habitual Offender Declaration is “disproportionate” and “unjust consequence” taking into consideration your total driving record and the special circumstances and issues relation to your situation.

An Application to quash the declaration can be quite a technical process and for this reason you should definitely obtain the services of a lawyer to represent you on such a matter.

Abolishment of the Habitual Traffic Offender Declaration Scheme (Post 28 October 2017)

New changes and amendments were introduced on 28 October 2017 which saw the Habitual Traffic Offender Declaration ('HTOD') Scheme in NSW become abolished. See the article we prepared at the time these new amendments were introduced: NSW Abolishes Habitual Traffic Offender Scheme

Even though the abolishment of the HTOD Scheme came into effect in October 2017, the reality is that many people are still subject to the old scheme whereby they still have many years, if not decades left to serve under the old HTOD scheme.

If you are one of these people still subject to a licence disqualification which is due to being a Habitual Traffic Offender, then there are 2 ways in which you can apply to have the remainder of the period quashed (or removed), these include:

• Application to remove driver licence disqualification removal applications; and
• Applications to quash Habitual Traffic Offender Declarations.

This page deals with applications to quash Habitual Traffic Offender Declarations.

See our other page for more information on how to Apply to Remove Licence Disqualification Periods in NSW.

Amendments Introduced By The Road Transport Amendment (Driver Licence Disqualification) Act 2017

In October 2017, the Road Transport Amendment (Driver Licence Disqualification) Act 2017 came into effect which saw the abolishment of the Habitual Traffic Offender Declaration (HTOD) Scheme.

What this means now is that the NSW Transport Department no longer issue a further 5 years licence disqualification on top of the Court ordered disqualification period for people who have been charged with 3 or more major traffic (or relevant) offences within a 5 year period.

If a person is subject to the period of licence disqualification imposed by the Habitual Traffic Offender Scheme prior to the commencement of the amended legislation on 28 October 2017 then the additional period of licence disqualification will remain in place until such time an order is made by the Court either quashing the Habitual Traffic Offender Declaration or removing the period of licence disqualification. This can be brought on by way of an application to the Court.

Making the Court Application

Making an application to quash the Habitual Traffic Offender Declaration is different to making an Application to remove a driver licence disqualification. They are different Court applications and you really need to know which application to make in order to suit your needs.

For the purpose of this article we will just focus on the Application to Quash the Habitual Traffic Offender Declaration. The application to quash a Habitual Traffic Offender Declaration must be filed at any NSW Local Court Registry. When filing the relevant Application the Courts Registry will require completion of an approved form and approved NSW Traffic Record.

Generally, there will be a filing fee payable at the time of filing the application. Once all the relevant documents, forms have been lodged and the filing fee paid then the Registry will allocate a particular date for the application to be listed before a Magistrate. The applicant will be required to attend the Court date whereby the Magistrate will consider a range of different factors such as the applicants:

• Character;
• References;
• Need for a licence;
• Personal &/or health issues;
• Employment;
• Prior driving record;
• Other relevant issues.

If the Court is persuaded to quash the Habitual Traffic Offender Declaration then they may do so on the believe that the remaining period of disqualification imposed through the Habitual Traffic Offenders scheme is disproportionate and unjust consequence taking into account the over all traffic record of the application. Other issues surrounding special circumstances will also be considered.

If is advisable to obtain legal representation in making such an application to the Court since the process can often be confusing and a daunting process for most people who do not have experience in this area of law.

Please do not hesitate in contacting Boorman Lawyers for traffic law advice in proceeding with an application to quash a Habitual Traffic Offender Declaration.