Appealing a Police suspension

The Police can suspend you from driving for:

Drink driving – PCA and DUI offences.
Drug driving.
Exceed speed limit in excess of 30km/h (provisional licence holders).
Exceed speed limit in excess of 45km/h.
Driving unaccompanied (a learner driver).
Street racing or aggravated burnout. (These are hoon offences that can also result in your car being impounded or your number plates confiscated.)

Police also have the power to confiscate your drivers’ license for the duration of the suspension, which is for either 3 or 6 months, depending on the seriousness of offence.

What happens after Police suspend my license?

Your suspension takes immediate effect when you are issued with the notice of suspension.

A police suspension notice may be issued to you on the spot or within 48 hours of the offence occurring.

You may appeal a police suspension at a Local Court within 28 days of receiving the notice of suspension. However, appealing a police suspension does not entitle you to drive after an appeal has been lodged.

The suspension is in place until your matter is finalised at court.

What options do I have in court?

In court, police suspensions can either be:

Lifted (cancelled) via a suspension appeal or
Stayed (put on hold) until the charge that led to the police suspension is determined at court.

The relevant legislation is:

s 257 of the Road Transport Act 2013 – (appeal)
s 135A of the Road Transport (General) Regulation 2013 – (stay)

1. Suspension Appeal

This option is taken where:

further court proceedings are not pending; or
- ie. there is no intention of defending the matter that caused the suspension (ie. plead ‘not guilty’);
it would be very unlikely that a guilty plea will result in non-conviction order.

Although the test, that there be exceptional circumstances, is a very difficult one to meet, it is not impossible.

A successful appeal will only allow you to drive up until your matter is heard at court. When your matter is heard at court, disqualification periods will apply if you are convicted of the offence that led to the suspension.

If there is no period of suspension, then the disqualification period will take effect on the date that the matter is finalised in court.

2. Application to stay the suspension (Putting the suspension on hold)

Where a matter is likely to be defended in court, or it is likely that a guilty plea will result in a non-conviction order, this option is preferable.

Rather than having the suspension lifted, a successful application puts the suspension on hold from the date that the order is made.

This means that when the final determination of the matter is heard at court, any period of suspension served can be taken into account if you are convicted, and a period of disqualification applies.

The exceptional circumstances test also applies here.

What will the court consider when determining a Police license appeal or stay?

1. Suspension Appeal

The court will consider exceptional circumstances that exist to justify varying or setting aside a police suspension.

This is a more difficult to achieve than a TFNSW appeal because:

the law does not define exceptional circumstances in a police suspension appeal.
Additionally, s 268(5)(b) of the Road Transport Act 2013 provides that the court cannot take into account the circumstances of the offence for which the person making the application is charged.

Exceptional circumstances might be

one exceptional circumstance, or
a combination of circumstances that make the case exceptional

An exceptional circumstance is not:

Needing your license for work.
Losing your job without a license.
No access to public transport.
Public transport is onerous.
Shift work.

However, such circumstances combined may make the case exceptional.

2. Application to stay the suspension (Putting the suspension on hold)

The court will consider exceptional circumstances that exist to stay a police suspension.

In an application to stay a police suspension, the law requires that the Local Court takes the following into account when determining exceptional circumstances:

The strength of the prosecution case
The affected person’s need for a license
The risk of danger to the community if an order is made
Any other matter that the court considers relevant.

In an application to stay a police suspension, more regard is given to a person’s need for a license than in police suspension appeal (where little to no regard is given).