DRIVING UNLICENSED – Section 74 Motor Vehicles Act 1959 (SA) This is a summary offence and will be dealt with in the Magistrates Court of South Australia. A trial by jury for driving unlicensed is not possible unless it is joined with a major indictable offence.
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74—Duty to hold licence or learner’s permit
(1) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b) is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
Maximum penalty: $1 250.
(2) Subject to this Act, a person who—
(a) drives a motor vehicle of a particular class on a road; and
(b) is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence. Maximum penalty:
For a first offence—$2 500.
For a subsequent offence—$5 000 or imprisonment for 1 year.
(2a) Subject to this Act, if a person—
(a) drives a motor vehicle on a road; and
(b) has, as a consequence of being convicted of a serious drink driving offence, been disqualified from holding or obtaining a licence; and
(c) has not, since the end of the period of that disqualification, been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2ab) Subject to this Act, if—
(a) a person drives a motor vehicle on a road; and
(b) the person has been disqualified from holding or obtaining a licence or learner’s permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drink driving offence or an alleged drink driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and
(c) —
(i) the drink driving offence or alleged drink driving offence was an offence against section 47(1a), 47B(1a), 47E(3a) or 47I(7) of the Road Traffic Act 1961 ; or
(ii) if the offence was a prescribed drink driving offence—the person has—
(A) been convicted of at least 1 other prescribed drink driving offence; or
(B) been convicted of or expiated at least 2 other drink driving offences,
committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; or
(iii) in any other case—the person has been convicted of or expiated at least 2 other drink driving offences committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and
(d) the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle, the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2ac) Subject to this Act, if—
(a) a person drives a motor vehicle on a road; and
(b) the person has been disqualified from holding or obtaining a licence or learner’s permit in this State, or in another State or Territory of the Commonwealth, as a consequence of a drug driving offence or an alleged drug driving offence (whether committed, or allegedly committed, in this State or in another State or Territory of the Commonwealth); and
(c) —
(i) the drug driving offence or alleged drug driving offence was an offence against section 47(1a), 47BA(1a), 47EAA(9a) or 47I(7) of the Road Traffic Act 1961 ; or
(ii) the person has been convicted of or expiated at least 1 other drug driving offence committed or allegedly committed within the period of 5 years before the date of commission or alleged commission of the offence; and
(d) the person has not, since the end of the period of the disqualification referred to in paragraph (b), been authorised, under this Act or the law of another State or Territory of the Commonwealth, to drive a motor vehicle, the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2b) An offence against this section is not expiable if the maximum penalty for the offence is $5 000 or imprisonment for 1 year.
(3) For the purposes of this section, a person is authorised to drive a motor vehicle of a particular class on a road if—
(a) the person holds a licence under this Act that authorises the holder to drive a motor vehicle of that class; or
(b) the person—
(i) holds a licence under this Act; and
(ii) has the minimum driving experience required by the regulations for the grant of a licence that would authorise the driving of a motor vehicle of that class; or
(c) the person holds a learner’s permit.
(4) When the holder of a licence under this Act drives a motor vehicle on a road as authorised under subsection (3)(b), the obligations imposed by section 75A(10) to (19) (inclusive) on the holder of a learner’s permit apply to the holder of the licence as if the references in those provisions to a learner’s permit or permit were references to the licence.
(5) Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver’s licence or learner’s permit for such period, being not less than 3 years, as the court thinks fit;
(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
(c) if the person is the holder of a driver’s licence or learner’s permit—the disqualification operates to cancel the licence or permit as from the commencement of the period of disqualification.
(6) In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
(7) In this section—
(a) a reference to a drink driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of “drink driving offence” in section 5(1);
(b) a reference to a drug driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of “drug driving offence” in section 5(1);
(c) a reference to a prescribed drink driving offence includes a reference to an offence against a law of another State or Territory of the Commonwealth that corresponds to an offence against this Act that is within the ambit of the definition of “prescribed drink driving offence” in section 5(1).
DRIVING UNLICENSED: WHAT MUST BE PROVED
1. you were driving on a road; and
2. you did not hold a licence at the time.
DRIVING UNLICENSED: MAXIMUM PENALTIES
1. $2,500.00 if this is a first offence.
2. $5,000.00 fine or imprisonment for a period of 12 months and disqualified from holding or obtaining a driver’s licence for a minimum period of 3 years.
Maximum penalty where there is a prior conviction for drink driving offence
Where you have been disqualified from driving because you committed a drink driving offence and you have then failed to have your licence renewed the maximum penalty is a fine of $5,000 or 1 year imprisonment. You will also be disqualified from holding a driver’s licence for at least 3 years.
DRIVING UNLICENSED: POSSIBLE DEFENCES:
1. You were not driving the motor vehicle. It is a complete defence to this charge if it can be shown that you were not driving the vehicle.
2. You were not driving on a road or road related area.
3. Honest and reasonable mistake of fact If you genuinely believed that your driver’s licence was still valid at the time of the offence, and it was reasonable for you to hold that belief you may have a defence to this charge.
4. Valid interstate or international licence. This defence is available if it can be shown that you are the holder of a valid interstate or international driver’s licence.
5. Duress. It is a complete defence to this charge if we can show that you were acting under duress or coerced to committing this offence.
6. Necessity/Emergency. The common law defence of necessity operates if you can show that you believed on reasonable grounds that you were placed in a situation of imminent peril. The Court will need to weigh up the act you have committed against the harm you would have experienced had you not acted in that manner and that the act was proportionate to the potential harm.
