Australia: How to beat a demerit point suspension in NSW

It is one of the most common situations faced by drivers, so it comes as no surprise that lawyers often are asked how to beat a demerit point suspension in NSW.

The answer will depend on the type of licence you have. There are different avenues for provisional drivers as opposed to full licence holders.

There are also different steps that need to be taken depending on what avenue you take.

How Many Demerit Points in NSW?

The below table sets out how many demerit points different types of drivers have in NSW:

How to Appeal a Demerit Point Suspension for a Full Licence Holder

If you are an unrestricted licence holder and receive a fine which will take you to 13 or more demerit points, it is important for you to obtain advice from a traffic lawyer as soon as possible.

This is because paying the fine will restrict the options you have to appeal the suspension. Once the fine is paid, you will not be able to appeal the suspension to Court.

Instead of paying the fine, you can choose to elect it to court. At court, if you believe you have a defence you can plead 'not guilty'.

Alternatively, if you do not have a defence, you can plead 'guilty' and ask the Magistrate to not record a conviction. If no conviction is recorded then the fine will be dismissed and you will also not incur the demerit points. As such, your licence will stay intact and you will not face any suspension period.

It is important to know that if you elect a fine to court and the Magistrate does record a conviction, then it will appear on your criminal record for 10 years.

Unlike an appeal of a provisional licence suspension, the court cannot reduce the period of suspension.

If you are convicted and incur the demerit points, you will still have the option of electing the good behaviour licence.

1. Accept the suspension; or
2. Apply for a Good Behaviour Licence through the RMS; or
3. Make an application for Professional Driver status

1. Completing the Suspension Period

If you decide not to challenge the suspension, you must serve the full term of the suspension.

Once this period is concluded, you cannot simply start driving again. You will have to contact the RMS to confirm the exact date your suspension will end. After this date, you will have all of your demerit points reset.

If you hold an unrestricted licence and accrue 13 or more demerit points in a 3-year period, then you will be subject to a licence suspension. The length of the suspension will be based on how many points you have accumulated.

The suspension periods for full licence Holders are:

• 13 to 15 demerit points – three months;
• 16 to 19 demerit points – four months;
• 20 or more demerit points – five months.

2. Applying for a Good Behaviour Licence

One way of avoiding a demerit point suspension is to apply for a 'Good Behaviour' licence. Any application for a good behaviour licence must be made to the RMS before the suspension begins.

While this may seem to be an expedient way of staving off a licence suspension, there are drawbacks. A good behaviour licence provides you with two demerit points for 12 months.

The good behaviour option is not available if you are issued with a suspension by Police. In this case you will need to lodge a Police suspension appeal.

If you breach a good behaviour licence by incurring two or more points, you will face double the suspension the RMS initially imposed.

3. How to Obtain a Professional Driver Licence

If you hold an unrestricted licence and are a professional driver, you can apply to the Roads and Maritime Services (RMS) for an additional demerit point.

This will increase your limit from 13 demerit points for an unrestricted licence, to 14 demerit points for professional driver licence for a three-year period.

It is important to be aware that this application can only be made once you have accrued 13-demerit points.

If you incur 14 or more demerit points as a professional driver in any 3-year period, then your licence will be suspended. The suspension period depends on how many points have been accumulated.

The suspension periods for Professional Drivers are:

• 14 to 15 demerit points – three months;
• 16 to 19 demerit points – four months;
• 20 or more demerit points – five months.

How to Appeal a Demerit Point Suspension for a Provisional Licence Holder

As a provisional licence holder, you have different options available to you if you exceed your demerit point limit. Significantly, it will usually be suggested that you pay the fine.

This is because after paying the fine you will be issued with an appealable notice of suspension by the RMS. Full licence holders do not have this option available to them.

If you hold a P2 Provisional licence (green p-plate) and incur seven or more demerit points, you will be subject to a 3 month licence suspension.

If you are a Provisional P1 licence holder (red p-plate) and incur 4 or more demerit points, you will receive a 3 month driver licence suspension.

For each suspension you receive on a provisional licence, you will be required to remain a provisional driver for an additional 6 months.

If you chose to appeal the suspension, then the matter will be listed at Court before a Magistrate. There are three options available to the Court for a licence appeal:

1. Dismiss the Appeal
2. Dismiss the Appeal but Vary the Suspension
3. Allow the Appeal

1. Dismiss the Appeal

If the Court dismisses the appeal, the suspension will remain in place. The Court can insist that the suspension period starts on the court date, or from a future date. At the conclusion of the suspension period, you will have all of the demerit points on your licence.

Generally, it is only in cases where the appellant has a very poor traffic record, or has had a licence appeal allowed in the past, or does not have an experienced licence appeal lawyer representing them that an appeal will be dismissed entirely.

2. Dismiss the Appeal but Vary the Suspension

The most common result is for the RMS licence suspension appeal to be dismissed but the suspension period reduced. The court has the power to vary the suspension to a length they deem appropriate. This can be as short as one day.

The advantage of this option is that at the conclusion of the suspension period, all of your demerit points are reset.

There are a number of factors that the Court assesses when determining the length of the suspension. Some of these include the circumstances of the offence that led to the suspension; your traffic record; and your need for a drivers licence.

Most appellants have a need for a licence related to their work. As such, many Magistrates take the view that this is not out of the ordinary. A need for licence related to caring for another person or having a medical condition that requires a licence generally carries more weight.

An experienced licence appeal lawyer will be able to advise you on the best way to prepare your case and persuasively argue before the Magistrate on your behalf.

3. Uphold the Appeal

Finally, the court has the power to allow the appeal completely. This will mean that you do not serve any period of suspension at all.

While this is sometimes seen as the 'holy grail' of results, there is one drawback.

If a licence appeal is allowed completely, then the demerit points you have incurred will remain in your traffic record. As such, if you incur one or more additional demerit points over the subsequent three years, then you will again face a demerit point suspension.

Further, if you receive two suspensions as a result of exceeding your demerit points on a Provisional Licence, the RMS may ask you to complete one or both of:

• A driver's knowledge test; or
• A driver education program.

Lodging a licence appeal to the Local Court requires the payment of a filing fee. You can view those fees here.

There are also strict time limits which apply to the lodgement of licence appeals. Generally, this is 28 days after receiving the notice of suspension.

How to appeal a Good Behaviour Licence Breach?

If you are on a good behaviour licence and receive a fine for an offence that carries two or more demerit points, you can elect the fine to court and appeal the breach of the good behaviour licence.

It is very important that you do not pay the fine. This is because payment of the fine concludes the matter. Once the fine is paid you lose your right to appeal and will have to serve double the suspension period the RMS initially imposed.

If you are found 'not guilty' or no conviction is recorded pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), then you will not incur the demerit points. This means that you will remain on the Good Behaviour Licence.

In NSW, the Road Transport Act 2013 (NSW) and the Road Transport (Driver Licensing) Regulation 2008 (NSW) govern the driver licencing scheme.

If you are facing a licence suspension you should contact Astor Legal on 02 7804 2823 immediately to speak to Australia's best traffic lawyers.

Red Light Demerit Points NSW

An offence of disobey red light sign attracts demerit points. If you have accrued demerit points for a red light offence, you should read about how to beat a red light fine.

Demerit Point Check

You can check how many demerit points you have in a number of ways. If you have the service NSW app, your current demerit points will be displayed on there. Alternatively, you can check online by logging into your Service NSW account.

You can also attend a Service NSW location and check how many demerit points you have on your driver licence.

When Do Demerit Points Reset?

Generally, your demerit points will be reset 3 years after you incur them. However, if your licence is suspended or you successfully complete the term of a good behaviour licence, all of your demerit points will be reset once the suspension period or term of the good behaviour licence ends.

Do You Get All Your Demerit Points Back After Suspension?

Yes. Once your suspension has ended, all of your demerit points will be reset.

Getting Your Licence Back After Suspension

At the end of the suspension period, you will need to contact the RMS to confirm whether you can drive again. Often, they will require you to complete a driver knowledge test and a driver education course before reissuing your licence.

If you begin driving without obtaining confirmation from the RMS, you may be charged with an offence of drive while suspended or drive while cancelled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.