Driving offences

What is a driving offence?

A driving offence occurs when someone driving a vehicle, or someone in a vehicle, breaks a law. A driver includes a rider, for example a person riding a motorbike or bicycle.

For some driving offences, the driving needs to have taken place on a 'road or road related area'. A road or road related area is more than just a public road, it includes:

• a public street
  
• the area that divides a road
  
• a footpath or nature strip next to a road
  
• a public area designed for cyclists or animals
  
• a public area that is not a road, but is open for the use of the public to drive, ride or park vehicles.
  

If you are not sure if your driving offence took place on a road or road related area, you should get legal advice.

What can you be charged with?

If you commit a driving offence, you may be fined or charged. If you have received a fine, see Fines.

If you have been charged with a more serious driving offence, you might receive a court attendance notice (CAN), and you will have to go to the local court.

Some of the more serious driving offences include:

• negligent driving, occasioning death or grievous bodily harm

• Furious or reckless driving

• Predatory or menacing driving

• Police pursuit

• Failing to stop and assist

• exceeding the speed limit by more than 30 km/hr over the limit
  
• driving with the prescribed concentration of alcohol (PCA) in your blood or breath (including low range, mid range and high range)
  
• driving under the influence of drugs or alcohol
  
• refusing to undergo a breath test
  
• driving while your licence is suspended or you are disqualified from driving.
  

If you are found guilty and convicted of a more serious driving offence, you may get heavy fines, lose your licence and be given a term of imprisonment. If you are charged with a serious driving offence, you should get legal advice.

Who can charge you?

You may be charged with a driving offence by:

• NSW Police
  
• Transport for NSW (TfNSW) (formerly known as Roads and Maritime Services or RMS)
  
• a local council.
  

TfNSW is often involved in camera offences (such as red light camera or speed camera) or heavy vehicle (truck and bus) offences.

The organisation who charges you will usually be the organisation that prosecutes the case. This means they will run the case against you when you go to court. If NSW Police charged you, a police prosecutor will usually represent the police. If TfNSW charged you, a TfNSW prosecutor will usually prosecute, however, sometimes they may ask the police or a private solicitor to appear for them in court.

What do the prosecution have to prove?

The court deals with a driving offence as a criminal case. In criminal cases, the prosecutor must convince the magistrate that you committed the offence 'beyond a reasonable doubt'. This means that the magistrate must be sure that you:

• did what the prosecution alleges you did and
  
• have no lawful excuse or defence for doing so.
  

What the prosecutor has to prove depends on the offence and the evidence they have. Many driving offences are known as 'strict liability' offences. This means the prosecutor must prove that you committed the offence, but does not need to prove that you meant (intended) to break the law. For example, for a charge of mid range PCA, the police don't need to prove that you drove knowing you were intoxicated. They only have to show that:

• you drove your car (or tried to), and
  
• you had a blood alcohol concentration (BAC) of between 0.08 and 0.149.

What is a defence?

A defence is an explanation or reason that suggests you should not be found guilty of a charge.

A defence may be:

• a denial that you did what the prosecutor says you did. For example, for a charge of drive while disqualified, a defence would be that you did not drive, or that you were not disqualified from driving at the time.
  
• that you have a legal excuse or justification for your actions.
  

Some common examples of a legal excuse or justification for your actions include:

• accident - that the driving offence was the result of an accident and you didn't mean to do it.
  
• reasonable efforts - that you did all that you could to avoid committing the offence.
  
• honest and reasonable mistake of fact - that you mistakenly believed that you were not committing an offence.
  
• necessity or duress - you had to drive because it was an emergency situation, or someone was forcing you.
  

Working out whether you have a defence to a driving charge can be very difficult. You should get legal advice about the circumstances of your case as soon as you can.

For more information about what happens after you are charged, see Responding to a charge.

Other consequences

For some serious driving offences, the police can suspend your licence on the spot. TfNSW can also suspend your licence for some serious driving offences, if you get too many demerit points or if you don't pay a fine.

For more information, see Losing your licence.

For some serious driving offences, the police can:

• impound your vehicle, and/or
  
• confiscate your number plates.
  

For more information, see Getting your car or number plates back.

Can I appeal my conviction or sentence?

You have 28 days to appeal your conviction or sentence or both, or three months with leave (permission) from the court. For more information, see Appeals.

If you missed court and are unhappy with the outcome, you may be able to apply for an annulment within two years of the date of the conviction or sentence. For more information see If you miss court in After court.

Before filing an appeal or annulment, you should get legal advice. If you were previously represented by a Legal Aid NSW lawyer or a private lawyer under a grant of legal aid, you should go back to the same lawyer for advice.