Charged with driving while unlicensed?

If you were previously disqualified for a serious drink or drug driving offence in South Australia and failed to reapply for your licence, you face:

• Up to $5,000 fine or 1 year imprisonment
• A mandatory 3-year disqualification, which cannot be reduced

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

If you do decide to plead guilty to an offence we can assist you to get the best result possible.
Our team of specialist criminal lawyers have extensive criminal law experience and know the best way to present your case before each of the Magistrates in the State. The results they obtain speak for themselves.

If any of the following are applicable to your circumstance you may have a defence and you should seek legal advice.

You weren’t driving
In some cases, the wrong person is charged with an offence. 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 which they presented to police. Regardless, it is a complete defence to this 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 will have a defence to this charge.

Honest and reasonable mistake of fact (Proudman v Dayman Defence)
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 (e.g. there was some legitimate confusion as to your licence expiry date) then you may have a defence to this charge.

Valid interstate or international licence
It is not uncommon for people to be charged with this offence when they do in fact hold a valid driver’s licence, just not a South Australian driver’s licence. You will have a complete defence to this charge if it can be shown that you are the holder of a valid interstate or international driver’s licence.

Duress
It is a complete defence to this charge 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. We would need to present evidence that shows you were coerced into the act by a third party, effectively rendering you an instrument of someone else’s criminal conduct and thus displacing the responsibility for your actions.

Necessity/Emergency
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. 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 include disorders such as:

• Schizophrenia
• Hyperglycaemia
• Psychomotor epilepsy
• Cerebral arteriosclerosis

If you find yourself in the unfavourable position of not only having been found guilty of an offence, but also having been sentenced to a term of imprisonment, we may be able to obtain a suspended sentence on your behalf under section 96 of the Sentencing Act (2017). If you receive a suspended sentence, you will be required to enter into a good behaviour bond and to comply with any other conditions the Court sees fit to impose.

Generally, no. The law applies to driving on a road, defined as an area open to or used by the public. Driving on private property (like a farm or driveway) may not breach the legislation.

If you genuinely and reasonably believed your licence was valid—e.g. you didn’t receive notification of suspension you may rely on the Proudman v Dayman defence of honest and reasonable mistake of fact.

Yes, if the licence is valid and you are not otherwise disqualified. Many people are incorrectly charged despite holding a valid interstate or overseas licence. Proof of this can be a full defence.

• Unlicensed driving applies if you’ve never held a valid licence, or your licence expired.
• Driving while disqualified applies if your licence has been cancelled by a court or the Registrar, and you’re legally barred from holding one. The penalties for disqualified driving are generally more severe.

Possibly. Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA), repeat or serious traffic offences, including unlicensed driving, may result in vehicle impoundment. This is more likely if it is a subsequent offence or connected with drink/drug driving.

You will face increased penalties, including:

• Higher fines (up to $5,000)
• Possible imprisonment
• Mandatory 3-year licence disqualification under s 74(5) of the Motor Vehicles Act 1959 (SA)