On the spot disqualifications – Can I get my license back?

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Under section 47IAA of the Road Traffic Act 1961 (SA), police have the power to instantly disqualify from driving any person who submits to an alcotest and breath analysis  which returns a reading indicating that that person  has a blood alcohol concentration of 0.08% and above, or to instantly disqualify any person who refuses to submit to a breath analysis or drug test. For “Category 2” offences, that is blood alcohol concentrations of between 0.8% to 0.15%, the instant disqualifications expire after six months. For all other applicable offences, the instant disqualifications endure for twelve months.

Instant disqualification from driving pursuant to section 41IAA can have harsh, unexpected and untimely consequences, particularly regarding people who require their licence for the purposes of employment. That said, there are limited circumstances in which an application can be made to the Magistrates Court to have the instant disqualification lifted or reduced in duration to one month, under section 47IAB of the Road Traffic Act.

An application can be made to have the instant disqualification lifted entirely where the Court is satisfied, on basis of oral evidence given by the applicant, that a person has a reasonable chance of being acquitted of the relevant charge, or where the prosecuting authorities have had reasonable time to lay a charge relating to the instant disqualification in the Magistrates Court and have not done so. In circumstances where the Court is satisfied that the  offence is a first offence and that the applicant has a reasonable prospect of establishing that the offence in question was trifling (that is to say, that there is some exceptional circumstance of or surrounding the offence that justified or explained its committal in some way), or that there is a reasonable prospect that a person charged with a Category 3 offence may in fact only be convicted of a Category 2 offence, the Court may reduce the instant disqualification to one month.

Applications to lift instant disqualifications aren’t suitable for everyone: it you intend to plead guilty to the relevant offence, it may well be that it’s best to serve as much of the instant disqualification as possible prior to coming to Court, as this will be taken into account by the Magistrate on sentence. Where that is not the case, we would be more than pleased to review your matter and advise on whether an application to lift an instant disqualification is appropriate, or likely to be successful, in the circumstances.

We are able to offer a range of fixed fees in respect of making the relevant application to the Court; call Culshaw Miller Criminal Lawyers today, or Tom Cuthbertson on 0423 524 621 for twenty four hour representation and advice.