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Speeding
Offences
Every day Sean Hardy
gives clients expert and strategic
legal advice in relation to all types
of speeding offences. He defends all
types of speeding offences in court -
especially where it is important to
save the client's drivers licence:
- on-the-spot fines
& court charges,
- radar detection
(hand-held, moving mode etc)
- laser or LIDAR
detection
- maintaining even
distance and estimations
- speed
camera offences
- time over
distance (point to point)
- all types of
speed zones
- driving at a
dangerous speed
For information on
infringement notices, first read the "Fines"
page. The FAQ below will answer most
questions, or try the Online
Forum.
Also see my pages about getting legal
assistance and booking
a conference.
Speeding
FAQ.
Frequently
Asked Questions
Answers
to questions I get asked every day:
Q.
I have an infringement notice which
carries 6 months licence loss, but I
need my licence for my job. What
should I do?
The only way to save your licence is by
taking your case to court. First
you need to object
to the infringement notice.
Lodging an objection will cancel the
fine and allow you to keep driving until
your court cases finishes - unless the
licence was suspended on the spot by
police. After you lodge your
objection you will receive a charge and
summons. It will then cost you only $400
to have a conference and get
legal advice about the best way to
handle your case. Also, read the
section on Fines.
Q.
I want to know if my case has a
reasonable chance of winning before
I lodge my objection to the
infringement notice.
You
can make an appointment for a
conference before you lodge your
notice of objection, but it's not
simple to find out your chance of
winning at that early stage.
Generally, no matter what you tell me
I will say that your chance of winning
depends on what the charge and summons
and brief of evidence looks like. So,
every good lawyer will insist on
seeing the charge and summons and the
brief of evidence before they can
assess your chance of winning. Some
people make an appointment to see me
before they lodge an objection so I
can help them decide whether or not to
object to the infringement notice. The
only time you should not elect to take
an infringement notice to court is if
you are significantly better off
serving your licence loss period now
rather than later.
Q.
How do I know if it is worth taking
my case to court?
If
you are facing mandatory licence loss
for speeding you must take the case to
court if you want to keep your
licence. First take it to court then
work out later if it is worth
defending. You have only 28 days to
decide whether to defend the case.
Then you have nearly a year to work
out how to defend the case. You won't
know if it is "worth it" until we have
investigated the case after you
receive the charge and summons.
If you are facing an unbearable period
of licence loss then there is no
reason why you would not object to the
infringement notice. It will
then cost you a conference fee to
investigate the police case and find
out if your case is worth
defending. If you then feel it
is not worth defending then you can
plead guilty without incurring any
further legal expenses, and the court
outcome is very likely going to be the
same as what was on the infringement
notice. To work out your chance of
winning I need to see the charge and
summons. Listening to you explain how
you were caught speeding is unhelpful.
Q.
I just want to know if it is worth
making an appointment to get legal
advice...
If
your licence is at risk, then it
probably is.
Q.
Are
you able to win my case or save my
drivers license no matter how
hopeless I think my chances are?
Yes.
Q.
My licence is about to be suspended
for 6 months because of a speeding
fine. If I plead guilty at
court is there any way the
Magistrate can let me keep my
licence or reduce the suspension
period?
No. It is definitely absolutely totally
impossible for you to retain your
drivers licence if you plead guilty to a
speeding charge where the alleged speed
is 25kmh or more over the speed limit,
or your speed is 130kmh or more. To save
your licence you have to plead not
guilty.
Q.
I was pulled over by the police for
speeding and given a fine with 6
months licence suspension. How will
taking it to court help?
To get a result that
is better than what is on the
infringement notice you need to object
to the infringement notice and take
the case to court. That means
pleading not guilty and either winning
your case or negotiating a suitable
settlement with the police.
This usually means having to
engage an experienced lawyer. Most of
my clients get better outcomes by
taking their case to court. If
the court finds you guilty, you are
likely to get a similar penalty to
what was on the ticket, so the
downside of going to court is minimal.
Your option is to take it to court or
pay the infringement. There are no
other alternatives. Unless you
take the infringement to court and win
you must suffer the mandatory minimum
period of licence suspension (see
table below). Most speeding offences
in Victoria have mandatory
sentencing
penalties. It seems I need to point
out that the table below applies to
people who lose their court case, not
people who win their court case.
|
Mandatory
Minimum Penalties for
Speeding in Victoria
|
|
Alleged
Speed
|
Licence
loss
|
Demerit Points
|
|
1kmh to
9kmh over the speed limit
|
-
|
1
|
|
10kmh to 24kmh over
the speed limit (except
for speeds of 130kmh or
more)
|
-
|
3
|
|
25kmh to 34kmh over
the speed limit
|
3 month
|
-
|
|
35kmh to 44kmh over
the speed limit
|
6 months
|
-
|
|
more than 45kmh over
the speed limit
|
12 months
|
-
|
|
130kmh to 134kmh in 110kmh
zone
|
3 months
|
-
|
|
Driving at a dangerous
speed
|
6 or 12 months
|
-
|
Q.
I was speeding because [insert
your favourite excuse here].
Can this be taken into account to
avoid the mandatory suspension
period?
No. Your reason for
committing the offence is not a
defence and can not reduce the penalty
below the mandatory minimum. Making a
confession to breaking the law is not
going to help you avoid licence
suspension. However if you were
speeding because you were on your way
to hospital with a dying passenger in
the car, or fleeing a tornado or
bushfire, that might count as a good
defence.
Q.
I was pulled over doing 137kph on
the Hume Fwy. It was just a short
burst as I passed a semi. It is my
first offence since I got my licence
in 1972. I drive a fire truck for a
living. Without a licence I won't be
able to work or pay the mortgage or
the kids' school fees. I also drive
to look after my disabled daughter.
My wife is on chemo and can't drive.
The only reason I was speeding was
because I was late getting to
Government House to receive my Order
of Australia medal from the Governor
General. The Pope is my uncle. I
live across the road from the Deputy
Commissioner. Will the court take
any of this into account and let me
keep my licence or reduce the
suspension period?
No. To save you
licence you need to win. I won't need
any of that information to win a court
case.
Q.
I didn't realise I was speeding
because [insert your favourite
reason here]. Is this a
defence?
Ignorance is no
excuse - nor is it a defence. You
might have an argument if the court
accepts that you did everything
reasonably possible and that it was
reasonable for you to believe that you
were driving lawfully, although this
defence is not usually applicable in
speeding cases.
Q.
Is it possible to beat a speeding
charge? Do
I have a defence?
Yes. Every speeding
charge has a chance of being
dismissed. Every case needs to be
judged on its own circumstances, and
some cases have better odds than
others. Many people erroneously think
they need to challenge the method of
speed measurement. In some case we
might do that - by disputing whether
your vehicle exceeded the speed limit.
For example, radar is less reliable
and easier to challenge than laser.
You can challenge any type of
detection method especially if expert
evidence (and money) is applied to the
problem. Radar devices are also
known produce unreliable readings from
vehicles which are out of view (over a
hill or behind foliage) or from radar
beams that are reflected from signs,
fences, parked vehicles, from trains
and planes traveling nearby, and from
interference from power lines.
Maintaining even distance detection
(known as TUPMED - took up position
and maintained even distance) is the
least reliable. This is when the
police follow your vehicle for a few
hundred metres and estimate your speed
from their speedo.
On the other hand,
rather than worry about challenging a
speed reading, it is usually easier to
win by challenging other aspects of
case such as the validity of the legal
processes or the legitimacy of police
evidence or procedures. Sometimes the
police are very good at speed
detection but hopeless at running a
court case. See the page on defending
charges
in court.
You
don't need to "run a defence case" to
fight a criminal charge. When the
police fail to prove that they have
followed the correct steps, or have
failed to comply with strict time
limits, or failed to issue, sign,
date, file or serve court papers
correctly, then the prosecution might
be unsuccessful. Unless the
prosecution get over those hurdles the
defence is not required to start
running a defence case. Many
successfully defended speeding cases
are won before any defence case
commences, or even before the
prosecutor gets a chance to call his
first witness. So you needn't give up
just because you can't see how you can
prove the reading is wrong or if you
are not aware there is a defence. The
minimum that is required is a desire
to win and the benefit of the
presumption of innocence, although a
skilled lawyer helps a lot too.
Q.
A spruiker named Mike
Palmer runs a website called Aussie
Speeding Fines. He's not a lawyer
but he claims all fines are illegal,
local government is
unconstitutional, and I can
avoid all fines just by sending some
letters. He wants me to pay $69 for
his book of ideas. Will this help?
No. That website is
a scam. Palmer's ideas are pure
nonsense and his strategies won't lead
to an acquittal. There is a
legal analysis of aussie speeding
fines
here. See also this
case where his ideas where
thrown out of court.
Q.
My speedo is not accurate. Will that
help?
No. Read the section
about inaccurate
speedometers.
Q.
My mate told me that if I go to
court and plead guilty I can ask for
a drive-to-work licence or daytime
hours licence so I won't have to
lose my job.
Tell him he's
dreaming. This type of licence has not
existed in Victoria in living
memory. All your mates who claim
to have a "drive
for work" licence are lying to
you because they don't want you to
know they are actually driving whilst
suspended.
Q.
Is there any way at all I can beg
the court to halve the suspension
period, or to let me pay a higher
fine and get a lower suspension
period, or let me drive just for
work purposes?
No. No. and No. If it was that easy I
would spend my days begging for leniency
for clients instead of fighting
and winning court cases. Begging a court
for leniency in speeding cases is
usually a waste of time and money.
You would be better off
just paying the ticket.
Q.
If I am pulled over are the police
obliged to show me the speed reading
on a radar/laser or other detection
device?
No, but it is
customary for the police to offer to
show the driver the reading. It is
probably better if the driver takes a
look at it, and the driver should ask
to take a look at it if it is not
offered. There is no legal consequence
if the police fail to show the driver
the reading, but if they refuse in the
face of a request it always makes them
look like poor sports, so that helps.
Sometimes the police issue fines for
speeding when they have not used any
radar or laser device. They can simply
watch you drive past and estimate how
fast you are going.
Q.
How can I dispute the speed reading
alleged against me?
Disputing speed
readings from radar and laser devices
usually requires getting an expert to
give evidence in court about how these
devices can produce inaccurate
readings. If you want to argue for a
deduction in the speed reading due to
inaccuracy of the device, you usually
need an expert witness to tell the
court how the error is possible. By
casting doubt on the accuracy of the
device or the accuracy of its
operation you may find that the
prosecution fails to prove the charge
beyond reasonable doubt. Disputing
speed readings usually requires the
accused to give evidence as to what
speed the accused claims he or she was
driving at. When the police do not use
a prescribed speed measuring device it
is possible to challenge the accuracy
of their estimation by giving contrary
oral evidence. I prefer to
win speeding cases without
disputing the reading, so I am not
suggesting this is the smartest way to
defend a speeding case.
Q.
If I lodge an objection to a
speeding ticket, can I keep driving?
Yes. If you lodge a
notice of objection you can keep
driving until a court says otherwise.
Q.
I got a traffic camera speeding fine
in the mail. I was not the driver.
What should I do?
You can nominate the
driver, or accept the penalty yourself
either by doing nothing or paying the
fine. A traffic camera fine is sent to
the registered owner of the vehicle.
The registered owner is liable for the
offence unless the owner nominates the
person responsible for the vehicle at
the time of the offence. See the nomination
page. The person who is
nominated will then be sent an
infringement notice and he/she will
then be responsible for the fine and
any demerit points that accrue. The
nominated person also has the right to
nominate a new person if the
originally nominated person disputes
being the driver. If the owner can not
determine the identity of the driver
after making all reasonable inquiries,
the owner may avoid liability for the
offence by making an "unknown user
statement". You may want to get
legal help with that to ensure it is
done properly. If a police member asks
an owner to identify the driver of
that person's motor vehicle at any
time, the owner is obliged to make
inquiries to find out who was driving
and answer the question. Failure to do
so can result in at least 2 years
licence loss for the owner.
Q.
I just received 7 speed camera fines
in the mail, including 3 on a single
day, with a total of 13 demerit
points. What can I do?
You could write to
the Traffic Camera Office and ask for
all but one fine to be withdrawn on
the basis that if you had received the
first fine promptly and before the
others, you would not have
re-offended. This might be the case if
the offences were committed on the
same day or over a period of a week or
two. The PRB (Penalty Review Board)
has guidelines for this and they could
make you pay the most serious fine and
withdraw the others. Writing
to the PRB also has its downside
if you later decide to take your case
to court, so you may want to get legal
assistance and advice if you want to
protect all your rights. Another
option is to lodge an objection to
each of the fines and use various
strategies to get rid of them, or win
them, via the court system.
Q.
Why is the alleged speed different
to the detected speed?
The detected speed
is the speed recorded on a speed
measuring device. The alleged speed is
a lesser speed which the police allege
in the charge or on the infringement
notice after making allowance for
possible margins of error .
The Road Safety
(General) Regulations sets the
calibration tolerance for speed
measuring devices. The
calibration tolerances are as follows:
- hand held lasers
- 2kmh,
- hand held and
mobile radars - 2 kmh
- fixed speed
cameras - 2kmh
- mobile speed
cameras - 3kmh or 3%, whichever is
greater,
- point to point
cameras - 0kmh
The alleged speed is
the detected speed less the
calibration margin permitted by the
regulations for the relevant device.
The police allow a
reduction to avoid wasting a day in
court arguing about the accuracy of a
speed measuring device. The reduction
gives the accused the benefit of any
doubt as to the accuracy of the
device. There is no legal obligation
on the police to allow any reduction
at all. However, most prosecutors will
recognise that any charge arising from
the use of a speed measuring
device can be challenged if no
deduction has been made. Allowing the
deduction is a practical solution to
that problem. It is usually very
difficult to get the police to agree
to a greater reduction than what is
set out above.
Q.
I was caught speeding in NSW at
45kmh over the speed limit. Will my
Victorian driver's licence be
affected?
Yes it will. You
should expect NSW Roads and Maritime
Services will record a
disqualification period on the
national database, which notifies
VicRoads of your disqualification in
NSW. VicRoads will then send you a
notice stating that your Victorian
drivers licence will be suspended or
cancelled for a period commencing on
the date stated in the letter and
ending on the date that your
disqualification in NSW ends. So if
NSW disqualifies you from driving for
6 months then VicRoads will suspend
your licence for the same period even
if that offence would have carried a
more severe penalty if it had been
committed in Victoria. Some interstate
offences can also result in demerit
points being recorded against you in
Victoria.
Q.
I was caught speeding in Victoria at
40kmh over the speed limit. Will my
NSW or UK driver's licence be
affected?
Your interstate or
overseas licence can not be suspended
by any Victorian law or authority.
However, you can be disqualified from
driving in Victoria, which can result
in your local licencing authority
suspending your interstate drivers
licence for so long as you are
disqualified from driving in Victoria.
Driving during a period of suspension
or disqualification is an offence
punishable by imprisonment. Victorian
law can not prevent you from using a
non-Victorian licence in other states,
i.e. Victoria can not stop you using
your NSW or UK licence in other
states.
Q.
The police followed me on the
freeway and booked me without using
a laser or radar device. Can they do
that?
Yes,
they can prove your speed by relying
on the speedometer
in their vehicle, regardless whether
it is calibrated.
Q.
Where are the police allowed to set
up a speed trap?
Anywhere they want.
The police can enforce speed limits on
any road in Victoria and no law
specifies where they might use a speed
camera or other speed measuring
device. However, the police use operational
guidelines
and site
selection guidelines
that state what physical features may
make a site unsuitable or
inappropriate for speed camera use.
The guidelines have almost no value in
court. It is not a defence to a
speeding fine if the police who
detected you speeding were illegally
parked, or parked on private property,
or driving without seatbelts, or
speeding without emergency lights
activated, or driving an unregistered
vehicle, or had a cracked windscreen,
or did anything else that was
irrelevant to the commission of your
offence.
Q.
Where can I find the laws governing
operation of speed cameras and other
speed detection devices?
See the Road
Safety (General) Regulations,
especially Part 3, and also ss.66,
78,
78A,
79,
80,
83,
83A
Road Safety Act 1986.
Q.
How does the National Measurement
Act 1960 (Cwth) help to fight a
speeding offence in Victoria?
It does not help at all. This
legislation ("NMA") has absolutely no
impact whatsoever on the prosecution or
defence of speeding offences in
Victoria. Over the past 40 years
numerous courts have held that evidence
obtained from speed measuring devices is
admissible as evidence in court despite
the National Measurement Act and the
National Measurement Regulations. The
NMA legislation does not require speed
measuring devices to be certified and
generally does not affect the
admissibility of evidence obtained from
any speed measuring device. About 12
years ago I represented a client (Ken
Harris) who instructed me to run the NMA
argument. The argument was rejected, Mr
Harris was convicted and he subsequently
lost his County Court appeal.
Although the NMA argument has been
accepted on a couple of occasions, each
of those rulings has been overturned by
higher appeal courts. You will never be
acquitted of a speeding charge by
arguing about the NMA.
Some speed camera activists are still
advising people to use this "defence".
They claim the courts are
mis-interpreting the legislation.
However, the courts' role is to
interpret the legislation made by
parliament. If the courts'
interpretation is not what parliament
intended, parliament will amend the
legislation to clarify their intention.
Importantly, parliament has never
amended the Act to over-rule the court's
interpretation of it. Despite the clear
and repeated rejection of this argument
by the courts, some fanatics continue to
come to court to tell the Judges that
all these judgements are wrong. Worse,
they sometimes convince other gullible
drivers to rely on this point in
court. Before you embarrass
yourself arguing this point in court
please consider the following cases
where judges have held that the NMA is
not relevant in a speeding case:
Re: Appeal
of White [1987] District Court NSW
Brooks
v. Parente (1989) Supreme Court of
Vic. Nathan J. Unreported.
Hooper
v. Marshall [1992] TASSC B50
In
the Appeal of Lloyd (1994) 20 MVR
408 (NSW)
Crosthwaite
v Loader [1995] QSC 42
Pearce
v Dennis [1997] QCA 239
Radalj
v. Taylor (1997) 25 MVR 11 (SCWA)
Rumsley v. Taylor (1997) 26 MVR 563
(SCWA)
Jenkins
v WMC Resources Ltd [1999] WASCA
171
Borody
v Smith Ors [2002] NSWSC 1242
Allen
v. Broome [2003] TASSC 38
• Police
v. KS, (2010) Magistrate Cure,
Magistrates Court of Victoria
Agar
v. Dolheguy [2010] VSC 506
Agar
v. Petrov [2015] VSC 168
Moran
v Police [2010] SASC 269
Van
Reesema v Police, [2010] SASC 201
Police
v. Young [2012] SASC 210
Spinks
v. Cruikshank [2012] TASMC 9
Macdonald
v County Court of Victoria [2013]
VSC 109 (para 32)
Macdonald
v County Court of Victoria
[2013] VSC 605 (para 8 to
13)
Kuipers-Lloyd
v. Police [2013] SASC 137
Anastasiou
v. Police [2013] SASC 112
Kuipers-Lloyd
v. Police [2013] SASC 137
Best
v. Police [2015] SASC 190
Jameson
v. Police [2016] SASC 5
Q.
I don't think I have a defence. What
can I do?
I will never rely on
my client to find a defence. 99% of
"defences" my clients tell me about
are useless. It is the lawyer's job to
identify any defence, not the
client's. Read
this page
about defending charges.
Q.
What is the best way to win a
speeding case?
Employ a barrister and use the law.
Also, most defendants think that they
are under some obligation to prove that
they did not commit any offence. This is
wrong. If the police lose a case it is
usually because they messed something up
during the court proceeding, rather than
the defendant saying anything useful in
his or her defence.
Q.
I have lodged an objection to a
fine. Now what should I do?
Within a few months
the police will send you court papers.
Once you have the court papers, you
should book a conference
for some legal advice. Read this
section on court
process.
Q.
Do you give free legal advice?
Yes. You are reading
it. There is more here.
Q.
I can't afford a lawyer. Can I get
help from legal aid?
If
you are at risk of going to prison,
and if you satisfy Legal Aid's means
tests and other conditions, then you
might qualify for legal aid -
especially if you are pleading guilty.
I have never heard of Legal Aid
providing funding for a traffic lawyer
to defend a speeding case. Legal Aid
provides a "duty solicitor" at most
courts to help defendants who want to
plead guilty. So if you want to plead
guilty (and lose demerit
points and lose your licence),
then you could ask to see the legal
aid lawyer at court. The duty
solicitor will not represent you to
fight a traffic offence.
How to
dispute a speeding fine. Disputing a
speeding ticket. Fighting fines and
speeding tickets. How to challenge a
speed camera fine. Fight fines. .
Challenging fines in victoria.
Speeding fine laws. Speeding law.
Speed ticket law. Speed camera law.
Excessive speed fine. fightfinea
Related
Pages:
Speed
Camera Offences
Fines
Demerit
Points
Inaccurate
Speedos
Speed
Camera Locations
Getting
Legal Advice
Speeding
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