Previously, the police were only able to issue a section 85 or 85B Notice of Immediate Driving Suspension in the circumstances where a driver was found to have a mid-high range of BAC. Since November 2020, the legislation changes have provided police with broader powers to issue section 85 notices for a range of driving related offences.

Where a member of Police or other authority reasonably believes a driver has been driving in a manner exceptionally dangerous or is a significant risk to other road users, they have the power to issue a Notice of Immediate Suspension prior to the matter being determined by the Court.

Examples of Driving Offences Causing Immediate Licence Suspension.

Under the Road Safety Act 1986, there are a number of offences which carry an immediate licence suspension. The police must issue a Section 85 notice which outlines the offence and the suspension date and time. Police can only issue a section 85 suspension up to a maximum of 12 months. As such, the Court has the final say as to the length of suspension. The section 85 notice is not regarded as a sentence but an enforcement tool to protect the community from future driving risk an accused person may pose to other road users until such time that the matters are determined by a Court. 

Speeding

If you are caught exceeding the speed limit by 45km or more, or at a speed of 145km or more in a 110km zone, the police are likely to issue you with an Immediate Licence Suspension Notice. This is based on the reasonable belief that you are pose a risk to other road users.

Drivers of Heavy Vehicles have more stringent obligations to follow than car and motorbike  drivers. As they are regulated by the National Heavy Vehicle Regulator, it is best to contact our office to discuss further if you are a Heavy Vehicle driver and have been charged with an excessive speeding offence.

Immediate Licence Suspensions can only be issued in circumstances where Police have detected a driver using Mobile Camera Detection devices. Where an offence has been caught by a fixed camera, immediate suspensions cannot be issued as there is a lack of information available to police to accurately identify who was in control of the motor vehicle at the time of the offence being detected. Often this may lead to police making enquiries of the registered owner and placing what’s known as  a section 60 demand on the registered owner to provide police with the identity of who was in control of the motor vehicle at a given date and time. 

Drink Driving

If a driver has a full licence and it is believed that their BAC level is 0.10 or above, the police can issue an immediate licence suspension. If the driver holds a learner permit or probationary licence, the minimum BAC level that entitles Police to issue a section 85 notice must be 0.07.

If a driver refuses to undergo a preliminary breath test or refuses to comply with a request to stop for a preliminary breath test, the driver can also be issued with a notice of immediate suspension.

The police must issue the notice of suspension within 12 months of issuing a certificate of analysis in relation to drink driving offences.

Drug Driving

If a driver is found to be in control of a motor vehicle whilst impaired by a drug, the Police may issue a section 85 notice.

Further, if a driver refuses to provide a blood or urine sample or undergo an oral fluid test, the Police may exercise their power to issue a notice of immediate suspension.

When it comes to Drug driving offences, Police can only issue a notice at the time of the offence. They do not have the power to retrospectively issue a s 85 notice unlike in drink driving cases.

vNote: in both drink driving and drug driving matters, if an accused person has a prior finding of guilt for drink or drug driving and it is reasonably believed that the current alleged offending is a subsequent offence, the Police can issue a s 85 notice to immediately suspend you from driving. Usually a finding of guilt within 10 years will form the basis of the police consideration in determining whether they will issue an immediate driving suspension notice. 

In circumstances where a vehicle has been utilised to commit an indictable offence which has resulted in injury or death, the Police have broad powers to prevent people from continuing to drive. These offences include but are not limited to:

• Murder
• Culpable driving
• Kidnapping
• Causing serious injury intentionally or recklessly
• Conduct endangering life
• Aggravated carjacking

While these offences are not in relation to control of a motor vehicle, the intention is to protect the community from such serious offending. Due to the nature of these serious offences, only senior members of Police that are reasonably satisfied that the driver used a vehicle to commit a serious indictable offence and that the driver is an unacceptable risk to other road users, can issue an immediate suspension when charged with any of the above offences.

Appealing a section 85 immediate drivers licence suspension 

Under s 85S of the Road Safety Act 1986, suspended drivers have the option to appeal a s 85 notice in Court.

In order to persuade a magistrate to repeal the notice of immediate driving suspension, the accused must show exceptional circumstances that go above and beyond the mere ‘want’ to have a driver’s licence reinstated.

Exceptional circumstances may include

• A weak prosecution case against the accused
• Triable facts in issue
• Sole custody of a disabled child that requires assistance.

Needing a licence for work is not a valid reason to appeal a suspension. To determine exceptional circumstances, it is best to have a discussion with one of our criminal lawyers so that we can advise you as to whether you have a solid basis that would meet the expectation threshold.

In circumstances where a person has been injured or killed, the accused must further prove, in addition to exceptional circumstances, that they are not an unacceptable risk to other road users and the community.

Process of Appealing Licence Suspensions

To start the process, our criminal lawyers need to review all of the information in relation to your case and determine if there are merits in making an appeal application.

If we deem you do have a case to appeal, our office will complete and file a s 85S form with the Court advising of our intention to appeal the licence suspension. There is a Court filing fee involved in appealing a licence suspension which must be paid upon the Courts receipt of the documents.

Once filed, a date will be set for the hearing and MK Law will appear on your behalf to make submissions on your behalf in order to persuade the Magistrate that your licence should be reinstated, and the s 85 notice will be vacated.