Victorian Consolidated Legislation

Road Safety Act 1986 - SECT 51

Immediate suspension of driver licence or permit in certain circumstances

51. Immediate suspension of driver licence or permit in certain circumstances





(1) If a person is charged by a member of the police force or an officer of
the Corporation with-





   (a)  an offence under paragraph (b), (f) or (g) of section 49(1) where it
        is alleged that the concentration of alcohol in the person's blood or
        breath (as the case requires) was-

   (i)  if the person holds a full driver licence-

                (A)  0×15 grams or more per 100 millilitres of blood; or

                (B)  0×15 grams or more per 210 litres of exhaled air; or

   (ii) if the person holds a learner permit or probationary driver licence-

                (A)  0×07 grams or more per 100 millilitres of blood; or

                (B)  0×07 grams or more per 210 litres of exhaled air; or

   (b)  an offence under paragraph (c), (d) or (e) of section 49(1); or



   (c)  an offence that would be a subsequent offence within the meaning of
        section 48(2) if the person were convicted-



any member of the police force or, if the accused had been driving or in
charge of a commercial motor vehicle, any officer of the Corporation may, at
any time after the making of the charge until the charge has been determined,
give to the accused a notice containing the prescribed particulars informing
the accused that his or her driver licence or permit is immediately suspended
until the charge has been determined and requiring the accused to surrender
immediately to the person who gave the notice the licence document or permit
document.

(1A) If a person is charged by a member of the police force with an offence
under paragraph (ba), (ca) or (ea) of section 49(1), any member of the police
force may, at any time after the making of the charge until the charge has
been determined, give to the accused a notice containing the prescribed
particulars informing the accused that his or her driver licence or permit is
immediately suspended until the charge has been determined and requiring the
accused to surrender immediately to the person who gave the notice the licence
document or permit document.

(1B) Any member of the police force may give a person a notice (containing the
prescribed particulars) informing the person that his or her driver licence or
permit is immediately suspended and requiring the person to surrender the
licence or permit document to the member of the police force if-

   (a)  paragraph (f) or (g) of section 49(1) applies to the person; and

   (b)  a certificate is issued under section 55(4) or 57 stating the
        concentration of alcohol present in the person's breath or blood as
        indicated by the analysis of the person's breath or blood sample; and

   (c)  that concentration is-

   (i)  if the person holds a full driver licence-0×15 grams or more per 210
        litres of exhaled air or 100 millilitres of blood (as the case
        requires); or

   (ii) if the person holds a learner permit or probationary driver
        licence-0×07 grams or more per 210 litres of exhaled air or 100
        millilitres of blood (as the case requires); or

   (iii) if the person has, within 10 years before the commission of the
        alleged offence, been found guilty or convicted of an offence (other
        than an accompanying driver offence) referred to in section 48(2)(a),
        (b), (c), (e) or (f)-the prescribed concentration of alcohol or more
        than the prescribed concentration of alcohol.

(1C) A notice under subsection (1B) may be given at any time within 12 months
after the certificate is issued and must specify the period of suspension in
accordance with subsection (3).

(2) For the purposes of this section a person is charged with an offence when
a copy of the charge that is signed by the member of the police force or the
officer of the Corporation is given to the person.

(3) Immediately on the giving of a notice under subsection (1), (1A) or (1B)
the person's driver licence or permit is suspended-

   (a)  if the notice is given under subsection (1) or (1A), until the charge
        has been determined by a court; or







   (b)  subject to subsection (3A), if the notice is given under subsection
        (1B), until the lesser of-

   (i)  12 months after the notice is given; or

   (ii) the period, after the notice is given, set out in Column 2 of
        Schedule 1 that corresponds to the breath or blood alcohol
        concentration in Column 1 of that Schedule that is stated in the
        certificate.

(3A) If-

   (a)  a person's driver licence or permit is suspended in accordance with a
        notice under subsection (1B); and

   (b)  less than 28 days before the end of the period of suspension, a
        traffic infringement notice is issued against the person in respect of
        the alleged offence-

the period of suspension under subsection (3)(b) is not affected by the person
giving a notice of objection to the traffic infringement notice before the end
of that period but, if the person does not give a notice of objection before
the end of that period, the period is extended until the end of the 28 day
period for giving the notice of objection.

(3B) If-

   (a)  a person's driver licence or permit is suspended in accordance with a
        notice under subsection (1B); and







   (b)  28 days or more before the end of the period of suspension, a traffic
        infringement notice is issued against the person in respect of the
        alleged offence-

the period of suspension under subsection (3)(b) is not affected by the person
giving a notice of objection to the traffic infringement notice within the 28
day period for doing so. Note If the person does not give a notice of
objection within the 28 day period for doing so the person's driver licence or
permit may be cancelled under section 89C(1).

(3C) If-

   (a)  subsection (3A) or (3B) applies to a person; and

   (b)  the person does not give a notice of objection to the traffic
        infringement notice within the 28 day period for doing so; and

   (c)  the person's driver licence or permit is cancelled under section
        89C(1)-

any period of suspension under this section ends when the driver licence or
permit is cancelled under section 89C(1) and the period for which the person
is disqualified under that section from obtaining a driver licence or permit
is reduced by the period of the suspension (as extended, if applicable, by
subsection (3A)).







(3D) If a person who is given a notice under subsection (1B) is charged with
the alleged offence during the period of suspension (as extended, if
applicable, by subsection (3A)), from the time the charge is laid the notice
is taken to be instead a notice under subsection (1) or (1A) (whichever is
applicable).

Note The period of suspension therefore continues until the charge is
determined by a court (see subsection (3)(a)).

(4) A person who gives a notice under subsection (1), (1A) or (1B) must cause
a copy of that notice to be sent immediately to the Corporation.



(5) A person who, without just cause or excuse, refuses or fails to surrender
a document as required by a notice under subsection (1), (1A) or (1B) is
guilty of an offence.

Penalty: 5 penalty units.

(6) The accused has the burden of proving just cause or excuse.

(7) A licence or permit suspended under this section is, during the
suspension, of no effect and a person whose licence or permit is so suspended
is, during the suspension, disqualified from obtaining a further licence or
permit.

(8) A person must not while he or she is disqualified from obtaining a licence
or permit apply for or obtain a licence or permit.

Penalty: 5 penalty units.

(9) A licence or permit so obtained is of no effect.



(9A) The Chief Commissioner of Police may cancel a notice under subsection
(1), (1A) or (1B) by notifying (in writing) the person to whom the notice was
given and must cause a copy of the cancellation to be sent immediately to the
Corporation.

(10) A person to whom a notice is given under subsection (1), (1A) or (1B) may
appeal against that notice to the Magistrates' Court.





(10A) A person who appeals under subsection (10) must give 14 days' written
notice of the appeal (including particulars of the alleged exceptional
circumstances) to the Chief Commissioner of Police and a registrar of the
Magistrates' Court.

(10B) In determining the appeal the court must hear any relevant evidence
tendered either by the applicant or by the Chief Commissioner of Police and
any evidence of a registered medical practitioner required by the court.



(11) On an appeal under subsection (10) the court may make an order-

   (a)  confirming the notice; or

   (b)  cancelling the notice.

(12) The Magistrates' Court must not make an order under subsection (11)
cancelling a notice unless it is satisfied that exceptional circumstances
exist which justify the making of such an order.





(12A) If a person whose driver licence or permit is suspended in accordance
with a notice under subsection (1), (1A) or (1B) is before a court for any
reason in relation to the alleged offence, the court may make an order
cancelling the notice if it is satisfied that exceptional circumstances exist
which justify making the order.

(13) Every order of the Magistrates' Court under subsection (11) is final and
conclusive and must be given effect to by the Corporation.



(14) If on the subsequent hearing of the charge the accused's driver licence
or permit is cancelled and the accused is disqualified from obtaining one for
a specified time, the court must take into account in fixing the period of
disqualification the period of suspension under this section.