January 18, 2018

It’s a common issue for many of us who drive – a momentary lapse in concentration leading to an on-the-spot fine for a traffic offence. Often, demerit points accompany the fines. While the fines can hurt financially, it’s the demerit points that can really deliver a crushing blow, especially if the extra points put you at risk of losing your licence. A man recently found himself in this situation and successfully applied for a reduction in demerit points.

Reducing Demerit Points

Demerit points – how they work

For some traffic offences, you will incur demerit points against your driver’s licence. They remain on your licence for three years from the date that the offence was committed.

Different offences incur different amounts of points. For example, exceeding the speed limit by 30 kilometres per hour or more attracts seven points, while driving in an emergency stopping lane incurs three points.

If a full licence holder incurs 12 or more points, they are disqualified from driving. The length of disqualification depends upon how may points have been accumulated over and above 12 points.

It’s also important to understand that once you pay a fine for a driving offence, you can’t challenge the demerit points. Payment of the fine is taken as an admission that you committed the offence and there is nothing that can be done to challenge the points. That’s why, if you wish to apply to have the points reduced, you should seek urgent legal advice before you pay the fine.

Background – reduction in demerit points

In this case, the man drove past a “no entry” sign on a residential street and police issued him with an on-the-spot fine. The offence also attracted a three-demerit point penalty.

Rather than pay the fine, the man elected to be prosecuted and to apply to the Magistrates Court to reduce the demerit points from three to one.

The law allowed the Court to reduce the demerit points if the offence was trifling, or if there was a “proper cause” for the reduction.

The man said that there was proper cause to reduce the points but the Court disagreed and imposed the three-demerit point penalty. The man appealed the decision to the Supreme Court of South Australia.

Decision – Supreme Court Appeal

The Supreme Court said that in order to work out whether there was “proper cause,” it had to consider all of the circumstances of the offence, the seriousness of those circumstances and whether the circumstances were special enough to find proper cause. It also said that hardship and possible disqualification of licence were not enough to establish proper cause. On the other hand, if the offending was less serious than typical offences of the same type, that may be taken into consideration.

The Court found that proper cause existed because:

  • The offending occurred on a Wednesday morning rather than during a peak traffic period.
  • At the time, the traffic was light and driving conditions were good.
  • The offending didn’t present a danger to others.
  • The “no entry” signs were being used to address traffic flow rather than for reasons of public safety.
  • The man’s offending wasn’t deliberate; it was inadvertent because:
    • The man had mistakenly assumed that the intersection would be the same as a nearby similar intersection that he used regularly.
    • The signs weren’t obviously visible immediately before he entered the intersection.

The Court also found that even though the man admitted that he had been slightly distracted because he was using Bluetooth to have a telephone conversation, he hadn’t actually committed an offence by doing this.

The combination of all of these things demonstrated to the Court that the man didn’t deliberately commit the offence. It found that there was proper cause to reduce the demerit points to one point.

What does it mean?

This case shows that it is possible to have demerit points reduced for proper cause. Although each circumstance was unremarkable on its own, all of the circumstances combined gave a unique situation in which the man was able to demonstrate that the points should be reduced in the interests of fairness.

Interestingly, the Court also looked at other situations in which proper cause might be applied. In the case of a speeding offence, it said that the following factors might be relevant:

  • That the person was travelling only slightly above the speed limit.
  • Light traffic conditions.
  • The offence was “fleeting”. That is, the person was speeding for only a few seconds before reducing speed.
  • There was no risk to the safety of others.
  • Whether the driver had a good explanation for the offence, for example an emergency.

Courts traditionally are very reluctant to reduce demerit points and so legal submissions must be carefully considered and structured to convince a Court that it’s the right thing to do.

If you are concerned about the demerit points that you will incur for a traffic offence, especially if you are at risk of losing your licence, you should seek the urgent legal advice of an experienced traffic lawyer. For the reasons discussed above, it is essential that you do this before paying any fine.

Websters Lawyers has a team of outstanding traffic lawyers who can assist you. Contact us today for a free first consultation.

Police v Di Fava [2017] SASC 189 (21 December 2017)