What are the Specific Maximum Penalties for the Offence

The penalties for driving whilst disqualified or suspended under the MVA are severe. This reflects how seriously the Courts will deal with these matters.  

The maximum penalties include:

When Licence has Been Suspended Under Section 38 of the Fines Enforcement and Debt Recovery Act 2017 (SA) - s91(5) of the MVA.

• First offence: 6 months imprisonment. 
• Subsequent offence: 2 years imprisonment. 

When a Person has Been Disqualified or Suspended from Holding or Obtaining a Licence for Another Reason - s91(5a)

• First offence: 1 year imprisonment. 
• Second offence: 3 years imprisonment. 

In addition to the above penalties, there may be other consequences such as vehicle impoundment or forfeiture, particularly for repeat offenders.

What the Prosecution Needs to Prove (Elements of the Offence)

To secure a conviction for driving whilst disqualified or suspended, the prosecution must prove beyond reasonable doubt the following elements:

1. Identity of the Driver: That the person charged was the driver of the vehicle.
2. Driving on a Public Road: That the driving occurred on a public road or a place to which the public has access.  The definition of a road can vary depending on the circumstances, so it is important to speak to a lawyer to determine whether you have a defence. 
3. Status of the Driver’s Licence: That the driver was disqualified or suspended from holding or obtaining a driver’s licence.
4. Knowledge of the Disqualification/Suspension: The driver knew that their licence was disqualified or suspended.

The Relevant Court

Driving whilst disqualified or suspended is typically heard in the Magistrates Court of South Australia. However, if the offence is part of a series of offences or involves additional serious charges, it may be escalated to a higher court.

What Defences are Available

Several defences can be raised in response to a charge of driving whilst disqualified or suspended, including:

1. Lack of Knowledge: That the driver was unaware of their licence disqualification for example if a person was not served with a notice of disqualification. 
2. Honest and reasonable mistake of fact - If you genuinely believed that you had not been suspended from driving, and it was reasonable for you to hold that belief this may be a defence to the charge. 
3. Emergency: That there was some emergency at the time that caused you to drive. The emergency must be serious and usually to establish the defence you must show there was no other way to deal with the emergency other than driving whilst disqualified. 
4. Duress – If you can show that someone threatened you with violence or some other harm unless you drove this could be a defence to the charge. You usually have to show there was no other way to escape the threat or harm to establish the defence.