It is an offence to drive a motor vehicle on a road while your driver's licence is suspended or disqualified.

This offence is outlined in section 91(5) of the Motor Vehicles Act 1959 (SA).

A licence may be suspended or disqualified for a variety of reasons. Including if you: 

  • accumulate 12 or more demerit points within three years; 
  • accumulate 4 or more demerit points as a learner or provisional driver; 
  • exceed any speed limit by 10 km/h or more on a learner's permit or provisional licence; 
  • breach a condition of good behaviour on your licence; 
  • fail to pay outstanding fines; or
  • drink drive. 

If you continue to drive once your licence has been suspended or disqualified you may be guilty of an offence.

Our experienced criminal lawyers at Caldicott Lawyers are experts all traffic matters and specifically for the offence of driving whilst suspended or disqualified. 


For a first offence of driving while suspended or disqualified the maximum penalty is 6 months imprisonment.

For a subsequent offence, the maximum penalty is 2 years imprisonment.

South Australian case law indicates that even first offenders must ordinarily be sentenced to a period of imprisonment. Therefore it is very important that you seek legal counsel if you have been charged with this offence.

Deciding whether or not to plead guilty to driving while suspended or disqualified has important implications and should be made after proper discussions with an expert criminal lawyer with experience in driving while suspended or disqualified matters.

If you do decide to plead guilty our experienced criminal lawyers can assist you to get the best result possible.

Our team has extensive criminal law experience and know the best way to present your case before each of the Magistrates in the State. The results we obtain speak for themselves.

Call 08 8120 3783 to make an appointment with one of the knowledgeable lawyers at Caldicott Lawyers for assistance with your driving whilst suspended or disqualified matter.

You weren’t driving

In some cases, the wrong person is charged with an offence of driving while suspended. There are a variety of ways in which this can occur. It may be that there was an administrative error on the prosecution’s behalf or perhaps, the offender was carrying your identification in which they presented to police. Regardless, it is a complete defence to a driving whist suspended charge if it can be shown that you were not driving the vehicle.

You weren’t driving on a road

The law states that you must not drive a vehicle on a road without a valid licence. A road is defined as an area that is open to or used by the public and is developed, at least in part, for the purpose of driving motor vehicles. Thus, if we can show that you were driving your vehicle on private property (e.g. your driveway) you may have a defence to this charge.

Honest and reasonable mistake of fact (Proudman vs Dayman Defence)

If you genuinely believed that you had not been suspended from driving, and it was reasonable for you to hold that belief (e.g. you did not receive the notice of driving disqualification) then you may have a defence to this charge.


It is a complete defence to the charge of drive while suspended if we can show that you were acting under duress. That is, you were acting as a result of violence, or some other threat against you. You will have a defence to this charge if we can demonstrate that you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct.


The common law defence of necessity operates where the circumstances at hand (natural or human threats) require you to break the law in order to avoid even more dire consequences. There is, thus, some overlap with the defence of duress. It will need to be shown that you believed on reasonable grounds that you were placed in a situation of imminent peril. You may have a medical justification, or it may be the case that you were acting in the course of protecting yourself or someone else.

Essentially, 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. The Court will also need to be convinced that the act was proportionate to the potential harm.

Mental Impairment

The law recognises that, in some cases, people will not be capable of evaluating the nature and quality of their conduct or more categorically, they will not know what they are doing is wrong. If it can be shown that you were suffering from some sort of mental disease, disorder or disturbance, as distinguished from a mere lack of self-control or impulsiveness, then you may have a defence to this charge.

Mental impairments may be either permanent or non-permanent and may include disorders such as:

  • Schizophrenia
  • Hyperglycaemia
  • Psychomotor epilepsy
  • Cerebral arteriosclerosis

Suspended Sentence

If you find yourself in the unfavourable position of having been found guilty of an offence and sentenced to a term of imprisonment, we may be able to obtain a suspended sentence on your behalf under section 38 of the Criminal Law (Sentencing) Act 1988. If you receive a suspended sentence, you will be required to enter into a good behaviour bond and will also be required to comply with any other conditions the Court sees fit to impose.

The Prosecution must prove that:

  1. you were driving a motor vehicle;
  2. You were driving on a public road;
  3. your driver’s licence was suspended or disqualified; and
  4. you knew you your driver’s licence was suspended or disqualified.

This is a summary offence and will be heard in the Magistrates Court of South Australia.

Proudman v Dayman (1941) 67 CLR 536: A defence of mistaken belief on reasonable grounds as to the existence of facts which, if they existed, would have rendered the conduct innocent is available.

Springall v Police [2007] SASC 425: Section 91 also applies to interstate licences that have been suspended.

Come and see the professional team at Caldicott Lawyers for assistance in your driving whilst suspended matter.