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Traffic Offences

There are many laws governing drivers, riders and pedestrians. Most driving offences in South Australia are covered by the Road Traffic Act 1961 (SA) and in regulations made under this Act, such as the Australian Road Rules1999 (SA). In addition, the Motor Vehicles Act 1959(SA) regulates (among other things) the issuing of driving licences, the registration of motor vehicles and compulsory third party insurance. A breach of these provisions is also an offence. Although all the offences under this legislation are summary offences, more serious offences (indictable offences) such as causing death or injury by reckless or dangerous driving, are contained in the Criminal Law Consolidation Act 1935 (SA).

For a comprehensive summary of traffic offences and penalties as at July 2017, click here.

As of 1 September 2014 new speed restrictions apply for emergency service speed zones, see Speeding.

To see a photograph relating to an expiation / infringement notice of an alleged offence see the SA Police website: https://expiationphoto.police.sa.gov.au/.

Driver's Licences

The law governing driving licences is contained in the Motor Vehicles Act 1959 (SA) and all references in this part are to this Act unless otherwise stated.

There are a number of different classes of licences or permits. These include a learner's permit, Provisional Licence and Probationary Licence (all of which are subject to conditions) and, of course, an unconditional licence (known as a full licence).

There are also different classes of licence that enable the holder to drive a particular class of vehicle, such as a bus or heavy vehicle.

A temporary licence can be issued by the Registrar or Motor Vehicles where there is a delay in the decision about whether a licence or permit should be issued or renewed, or where there is a wait to receive a licence or permit that includes a photograph of the holder.

Information about the different types of licences is available from sa.gov.au's transport page or http://www.mylicence.sa.gov.au. In particular information on:

Go to my.sa.gov.au for information about getting a digital driver's licence.

Changes to Learners permits and provisional licences

From 28 July 2014, substantial changes came into effect in relation to the graduated licence scheme for new drivers.

Learner’s permits and provisional licences that were held prior to 28 July 2014 were also captured by the new provisions.

  • The licence regression scheme is now defunct. Drivers who serve a term of disqualification will return to the licence stage they were at when they committed the offence which resulted in them being liable for disqualification rather than regressing to the previous stage.
  • The driving curfew that applied to serious disqualification offences on re-instatement of licence no longer applies.
  • New provisions are in place for P1 drivers aged under 25:
    • There are restrictions on the number of peer aged passengers (passengers aged 16 to 20 years) they can have in a car whilst driving during the 12 month period of their P1 licence. They cannot drive with more than 1 peer passenger unless they are accompanied by a qualified supervising driver. There is an exception where the peer passengers are immediate family members. Exemptions apply (see below).
    • In addition, there are night time driving restrictions that apply for the duration of the P1 licence. P1 licence holders cannot drive between the hours of midnight and 5 am. Exemptions apply (see below).
  • Learner Permit Motor cyclists are also subject to the night time driving restrictions. Exemptions apply (see below).

Exemptions from night time driving and peer passenger restrictions:

An exemption from the night time driving restrictions is available for a range of purposes including employment, education/training, formal volunteer work, or to participate in sporting, artistic, scientific, charitable and/or religious activities. In each case, drivers must take the shortest practicable route between home and the activity for the exemption to apply.

An exemption from the peer passenger restriction is only available if a driver is required to carry more than one passenger aged 16 to 20 in the course of their employment.

Police and emergency service members (both paid and volunteer) are exempt from the night and peer passenger restrictions while on duty.

The onus is on the driver to prove to SAPOL at the roadside that they meet the exemption criteria. Drivers are encouraged to carry supporting documentation (e.g. a letter from their employer) whenever they are driving at night or with multiple peer passengers. For further information see the MyLicence website which also contains a sample exemption form that can be downloaded for use by a P1 driver.

  • It is a requirement that the Hazard Perception Test be passed before a P1 licence can be granted. If the P1 licence was issued before 28 July 2014, it is a requirement that a Hazard Perception Test be passed before a P2 licence can be granted.
  • The total time on a provisional licence has been extended from two to three years. This means one year on a P1 licence and two years on a P2 licence. The extended time on a provisional licence applies to all provisional licences issued on or after 28 July 2014.
  • Provisional licence holders will no longer be required to apply to upgrade from a P1 licence to a P2 licence as the upgrade will be automatic.
  • Once a driver progresses to a P2 licence the restrictions with regard to peer passengers and night time driving are no longer in place. However, the conditions and restrictions for a P2 licence holder remain e.g. P2 licence holders continue to be prohibited from driving if they have any alcohol present in their blood or any illicit drug/drugs present in their oral fluid or blood. Provisional licence holders are also prohibited from exceeding the speed limit by 10 kilometres an hour or more and from driving high powered vehicles.
  • The minimum age by which a new driver can obtain a non-provisional licence is 20 years. A P1 licence must be held for a period of 12 months with a further 2 years served on a P2 licence.

Graduated Licence Scheme

South Australia has a graduated licence scheme for new drivers. Under the scheme, a driver must progress through several stages of licences, each of which must be held for a minimum period of time and which are subject to conditions, before finally being eligible to obtain a full licence.

A provisional licence (comprising two categories – P1 and P2) must be held for a period of 3 years and until the driver is aged 20 years of age [s 81A(5)] before an unconditional or non-provisional licence can be issued.

There is a possible exemption for Aboriginal people living in remote areas such as the APY lands (see Motor Vehicles Act 1959 (SA) 98AAG).

For more information see : http://www.mylicence.sa.gov.au/

Learner's Permit

Eligibility

In order to be eligible for a Learner's Permit an applicant must:

  • be of or above the age of sixteen, and
  • have passed a theoretical exam.

Practice questions for the theory exam are available on the RAA's website.

Time held

If aged under 25 years, must be held for a minimum of 12 months. If aged 25 or over, must be held for a minimum of 6 months [Motor Vehicles Act 1959 (SA) s 79A].

Conditions and rules
  • must be accompanied whilst driving by a Qualified Supervising Driver* (unless the vehicle is a motorcycle)
  • must not drive a motor vehicle, or attempt to put a motor vehicle in motion, on a road whilst there is any concentration of alcohol in their blood or illict drugs in their blood or oral fluid
  • must not drive a motor vehicle at a speed exceeding 10 km/h or more of any speed limit under the Road Traffic Actand the Motor Vehicles Act
  • must not exceed the 100 km/h speed limit
  • must not accumulate 4 or more demerit points during the Learner’s Permit period
  • must display prescribed L plates when driving a motor vehicle (cars must display two plates whilst motor bikes need only display one)
  • must carry the Learner’s Permit at all times whilst driving
  • no mobile phone use while driving
  • must not ride a motor bike between the hours of midnight and 5.00 am unless carrying a passenger who is acting as a Qualified Supervising Driver* (either on the bike or in a sidecar attached to the bike), or they meet one of the exemption criteria

* A Qualified Supervising Driver (QSD) must hold an unconditional licence (i.e. cannot be on provisional or probationary licence or be subject to a good behaviour bond) of the class appropriate to the vehicle being driven and have held this licence for the previous 2 years without disqualification. They must occupy the seat next to the permit holder and must not have a blood alcohol reading of more than 0.05. As a consequence of the minimum time requirements for having a full licence, a Qualified Supervising Driver must be aged at least 21 years.

Breach of a Learner's Conditions

(including accumulation of 4 or more demerit points)

  • a disqualification period of 6 months, and
  • cancellation of the permit
Appeals - Breach of Conditions

Learner’s permit drivers cannot appeal a disqualification resulting from breach of conditions.

After disqualification

For applicants under 25 years of age, the total amount of time they must have held a Learner’s Permit is a period totalling 12 months, of which there must be a continuous period of not less than three months since the end of the period of disqualification.

For applicants aged 25 or over, the total amount of time they must have held a Learner’s Permit is for a period totalling at least six months, of which there must be a continuous period of not less than three months since the end of the period of disqualification [Motor Vehicles Act 1959 (SA) s 79A].

For more information see:http://www.mylicence.sa.gov.au/my-car-licence/learners-stage

P1 provisional licence

Eligibility for Provisional Licence (P1)

To be eligible for a P1 Licence a driver must:

  • be aged 17 years or older [s 75];
  • have completed 75 hours of supervised driving – including 15 hours at night;
  • have passed a practical driving test (Vehicle On Road Test i.e. VORT) or competency-based driver training (CBT);
  • have completed a Hazard Perception Test;
  • have held a Learner’s Permit [s 79A]:
  • For drivers aged under 25:
    • If no disqualification, for a continuous period of at least 12 months;
    • If disqualified, for periods totalling 12 months of which there must be a continuous period of not less than 3 months since the end of the disqualification period.
  • For drivers aged 25 and over:
  • If no disqualification, for a continuous period of at least 6 months.
  • If disqualified, must have held a learner’s permit for periods totalling 6 months of which there must be a continuous period of not less than 3 months since the end of the disqualification period.
Time held

A Provisional (P1) licence must be held for a minimum period of 1 year.

Conditions and rules

The following conditions and rules apply to P1 licence holders [see Motor Vehicles Act 1959 (SA) s 81A]:

  • must not drive a motor vehicle or attempt to put a motor vehicle in motion when there is any concentration of alcohol in their blood or prescribed drugs in their blood or oral fluid;
  • must not drive a motor vehicle at a speed exceeding 10 km/h or more of any speed limit under the Road Traffic Act or exceed the 100 km/h speed limit prescribed under the Motor Vehicles Act ;
  • must not accumulate 4 or more demerit points during the Provisional licence period;
  • must display prescribed P plates when driving;
  • must carry licence at all times when driving [98AAB];
  • no mobile phone use while driving.

For P1 licence holders who are under the age of 25 the following restrictions apply:

1. restrictions on night time driving i.e. must not drive a motor vehicle between the hours of midnight and 5.00 am unless accompanied by a qualified supervising driver [s 81A(16)].

In prescribed circumstances a driver will have a defence to a charge of an offence under section 81A(16). Prescribed circumstances include:

  • if the driver is engaged in official duties as an emergency worker;
  • if driving to attend education or training (must be by the shortest practicable route);
  • if driving to participate in recognised activities – these include sporting, artistic, charitable, religious or scientific activities (must be by the shortest practicable route);
  • driving to and from work (by the shortest practicable route) or driving for the purposes of work (work includes voluntary work or unpaid work experience);

2. ‘peer passenger’ restrictions i.e. must not drive a motor vehicle while 2 or more peer passengers are in the vehicle unless accompanied by a qualified supervising driver [s 81A(18)]. A ‘peer passenger’ is defined as a passenger aged between 16 and 20 years. In prescribed circumstances a driver will have a defence to any charge of contravening the restrictions. Prescribed circumstances include driving for work purposes (must be paid employment).

Where all the peer passengers, or all but one of the peer passengers, are immediate family members of the driver there will be a defence to any charge under section 81A(19). An immediate family member of a driver is defined as:

  • spouse or domestic partner; or
  • child; or
  • guardian or step-parent; or
  • spouse of a grandparent; or
  • brother or sister; or
  • stepbrother or stepsister; or
  • child of a parent, guardian or step-parent;
  • a person related to the driver according to Aboriginal or Torres Strait Islander kinship rules.

3. Must not drive a high powered vehicle [s 81A(13)]. The maximum penalty for this is $1250.

Breach of P1 Conditions

(including accumulation of 4 or more demerit points)

A breach of conditions will result in:

  • disqualification from driving for 6 months, and
  • cancellation of the licence

[See Motor Vehicles Act 1959 (SA) s 81B(1)(d),(e)]

Penalty - see penalty summary

Safer Driver Agreement

Under section 81BA of the Motor Vehicles Act 1959 (SA) a P1 licence holder may enter into a Safer Driver Agreement in lieu of a disqualification but only under certain conditions. See Safer Driver Agreements.

Appeals - Breach of Conditions

Options for appealing a disqualification are limited for P1 licence holders and will be determined by whether the offence is a serious disqualification offence.

A serious disqualification offence is defined under s 81BA(6) as:

  • an offence against the Criminal Law Consolidation Act 1935 (SA); or
  • an offence that incurs 4 or more demerit points; or
  • a speeding offence that incurs 3 or more demerit points, if committed by the holder of a licence who has, while holding that licence, previously been convicted of, or expiated, another speeding offence that incurred 3 or more demerit points; or
  • a combination of a red light offence and a speeding offence arising out of the same incident; or
  • any offence committed by the holder of a licence who has previously been disqualified from holding or obtaining a licence or learner’s permit under the Motor Vehicles Act 1959 (SA).

If the offence is not a serious disqualification offence, the driver is eligible to enter into a Safer Driver Agreement under section 81BA. If eligible to enter into a Safer Driver Agreement, a driver cannot lodge an appeal.

Where the offence is a serious disqualification offence a P1 licence holder can lodge an appeal, but only on the grounds that their loss of licence will result in severe and unusual hardship to either themselves or their dependants [s 81BB(4)], and provided they have not successfully appealed in the preceding 5 years [s 81BB(2)].

If successful, no further appeals can be made for 5 years.

The effect of a successful appeal for a P1 licence holder will be:

  • the licence is cancelled and the licence holder is entitled to a refund (on application to the Registrar) [s 81BB(7)(a)];
  • the disqualification is removed and the person is entitled to apply for the licence afresh [s 81BB(7)(b)];
  • the application for the new licence will be as if they were applying at the end of a period of disqualification [s 81BB(7)(c)].

See also Appealing disqualification for breach of conditions.

Breach of conditions following a successful Appeal

Where a driver has successfully appealed a disqualification for breach of conditions and subsequently breaches a prescribed condition or incurs 4 or more demerit points, he/she will be disqualified from holding a licence for a period of 12 months and have their licence cancelled [s 81BB(8)].

No further appeals can be made for a period of 5 years from the date of the last successful appeal.

After disqualification

Where a P1 driver chooses not to appeal or is unsuccessful in an appeal they will no longer be required to re-apply for a Learner’s Permit. Once the period of disqualification has been served the driver will be eligible to reapply for a P1 licence.

For more information see: http://www.mylicence.sa.gov.au/my-car-licence/p1-provisional-licence

P2 provisional licence

Eligibility for a P2 Licence

A Provisional (P2) licence can be applied for if a P1 licence has been held for at least 12 months.

Time held

A P2 licence must be held for 2 years [Motor Vehicles Act 1959 (SA) s 81A(5)].

Conditions and rules
  • must not drive a motor vehicle or attempt to put a motor vehicle in motion when there is any concentration of alcohol in their blood or prescribed drug in their blood or oral fluid;
  • must not drive a motor vehicle at a speed exceeding 10 km/h or more of any speed limit under the Road Traffic Act or exceed the 100 km/h speed limit prescribed under the Motor Vehicles Act ;
  • must not accumulate 4 or more demerit points during the P2 qualifying period;
  • must carry licence at all times when driving [s 98AAB].

Drivers under 25:

  • must not drive a high powered vehicle [s 81A(13)]. The maximum penalty for this is $1250.
Breach of P2 Conditions

(including accumulation of 4 or more demerit points)

  • Disqualification from driving for 6 months, and
  • Cancellation of the licence.

Penalty: see penalty summary

Safer Driver Agreement

Under section 81BA of the Motor Vehicles Act 1959 (SA) a P2 licence holder may enter into a Safer Driver Agreement in lieu of a disqualification but only under certain conditions. See Safer Driver Agreements.

Appeals - Breach of Conditions

A P2 licence holder who is facing disqualifcation for breach of conditions can appeal the disqualification but only on the grounds that their loss of licence will result in severe and unusual hardship to either themselves or their dependants, and provided they have not successfully appealed in the preceding 5 years. If successful, no further appeals can be made for 5 years.

Where a driver is eligible to enter into a Safer Driver Agreement they cannot lodge an appeal.

The effect of a successful appeal for a P2 licence holder will be:

  • the licence is cancelled and the licence holder is entitled to a refund (on application to the Registrar) [s 81BB(7)(a)];
  • the disqualification is removed and the person is entitled to apply for the licence afresh [s 81BB(7)(b)];
  • the application for the new licence will be as if they were applying at the end of a period of disqualification [s 81BB(7)(c)].

See also Appealing disqualification for breach of conditions.

Breach of conditions following a successful appeal

Where a driver has successfully appealed a disqualification for breach of conditions and subsequently breaches a prescribed condition or exceeds a total of 4 demerit points, he/she will be disqualified from holding a licence for a period of 12 months and have their licence cancelled. No further appeals can be made for a period of 5 years from the date of the last successful appeal.

After disqualification

Where a P2 driver chooses not to appeal or is unsuccessful in an appeal against breach of conditions they will be eligible to reapply for a P2 licence on completing their disqualification [s 81B(1)].

Eligibility for full / unrestricted licence

To be eligible for an unconditional licence (also referred to as a non-provisional licence), a driver must:

  • be aged at least 20 years of age; AND
  • have held a P2 provisional licence for a period of at least 2 years; AND
  • must not be the holder of a provisional licence that is subject to alcohol interlock scheme conditions.

[See Motor Vehicles Act 1959 (SA) s 81A(5)]

A licence will be issued or renewed for a term which will not exceed 10 years. The registrar may renew a licence so long as an application for its renewal is made within 5 years of the expiry date of the licence.

If the driver has their full licence disqualified, it will be cancelled and they will be issued with a Probationary Licence once they reapply for a re-issue of their licence. They will also have to pay a fee when applying for the re-issue of their licence.

For more information see: http://www.mylicence.sa.gov.au/my-car-licence/p2-provisional-licence

Probationary licence

WHEN IS A PROBATIONARY LICENCE ISSUED?

Probationary licences are granted whenever a person applies for the issue of a driver’s licence following a period of disqualification which resulted in the cancellation of their licence.

A probationary licence will be issued as a result of the following disqualifications:

  • drink driving offences [Motor Vehicles Act 1959 (SA) s 81C]
  • by order of a Court (whether in SA or any other State or Territory of the Commonwealth)
  • breach of probationary licence conditions.
Time Held

A period of 12 months or, if the court orders, for a longer period [Motor Vehicles Act 1959 (SA) s 81AB(3)].

Conditions
  • driver must carry licence at all times while driving a motor vehicle [s 81AB(1)(a)];
  • must not drive a motor vehicle or attempt to put a motor vehicle in motion on a road while the prescribed concentration of alcohol* is present in his/her blood, or a prescribed (i.e. illicit) drug is present in his/her oral fluid or blood [s 81AB(1)(b)].

* prescribed concentration of alcohol in this context means any concentration of alcohol in the blood.

Breaches of Probationary Licence Conditions

Where a person breaches the probationary licence conditions they commit an offence [Motor Vehicles Act 1959 (SA) s 81AB(5)] and also face the following penalties:

  • Disqualification for a period of 6 months [s 81B(1)(d)]; and
  • Cancellation of licence [s 81B(1)(e)].

For the maximum penalty (fine or expiation fees) for a breach of probationary licence conditions see the penalty summary.

Exceeding Prescribed Number of Demerit Points

Where a person holds a probationary licence and incurs two or more demerit points while holding that licence, they will face the same consequence as if they had breached a condition of their probationary licence:

  • disqualification for a period of 6 months; and
  • cancellation of the licence.

See section 81B(1)(c)(ii) Motor Vehicles Act 1959 (SA).

Appeals - Breach of Conditions

Where a driver on a probationary licence breaches conditions and successfully appeals he/she will be on probationary conditions for a period of 18 months rather than 12 months [Motor Vehicles Act 1959 (SA) s 81BB(7)(g)].

The specific steps that apply following a successful appeal for a probationary licence are:

  • the existing licence is cancelled and the licence holder is entitled to a refund (on application to the Registrar) as if they were surrendering the licence [s 81BB(7)(a)];
  • the disqualification is removed and the person is entitled to apply for the licence afresh [s 81BB(7)(b)];
  • the provisions under section 81AB apply when the person is making the application for the licence as if, despite the removal of the disqualification, they had been disqualified as a consequence of the offence or breach and were making an application at the end of the disqualification period [s 81BB(7)(c)];
  • when the licence is issued probationary conditions are imposed for a period of 18 months [s 81BB(7)(g)].

See also Appealing disqualification for breach of conditions.

Breach of Conditions following a successful Appeal

Where a driver has successfully appealed a disqualification for breach of conditions and subsequently breaches a prescribed condition or exceeds a total of 2 demerit points, he/she will be disqualified from holding a licence for a period of 12 months and have their licence cancelled.

No further appeals can be made for a period of 5 years from the date of the last successful appeal.

Appealing disqualification for breach of conditions

How will I be notified if I breach the conditions of my permit/licence?

If your permit or licence is cancelled for breaching conditions, you will receive a notice from the Registrar of Motor Vehicles cancelling the permit/ licence.

What is the penalty for breach of conditions?

If an appeal is not lodged a disqualification period of 6 months applies.

Can I appeal disqualification?

You can appeal against the cancellation to the Civil Division of the Magistrates Court. The application for an appeal should be lodged at the Magistrates Court nearest to where you live.

What do I have to prove to successfully appeal?

Firstly, you will need to be able to demonstrate that the loss of licence will result in 'severe and unusual' hardship to either yourself or a dependent.

Secondly, under s 81BB(4) the Crown can introduce evidence of your previous driving offences to demonstrate that you have a driving history indicating you are a safety risk to either yourself or the general public. If such evidence is introduced you must be able to show that your driving history does not prove that you pose such a risk.

What is 'severe and unusual hardship'?

A person considering an appeal must be able to demonstrate that the loss of licence will cause severe and unusual hardship to either themselves or a dependant. Suffering inconvenience will not be sufficient. To claim hardship you must show, for example, complete reliance on the licence to earn a living, an inability to travel to work or a loss of pay or a promotion opportunity.

You may be asked to prove the hardship and should, for example, take a letter from your employer explaining the consequences of losing the licence. Where there is an inability to get to work, the employer should explain that there is no flexibility in starting or finishing times, and you should obtain public transport timetables that demonstrate that it is impossible to get to work at the necessary times. If you intend claiming a loss or reduction in income you should, in addition to an employer's letter, consider preparing a budget showing the financial hardship resulting from losing the licence.

Can I drive while waiting for the appeal to be heard?

If an appeal is lodged before the cancellation of the licence takes effect, you can continue to drive until the appeal is heard. If you surrender your licence before the appeal is lodged, you cannot drive. However, once the appeal is lodged, you can drive again until the appeal is heard as the disqualification is suspended until the appeal is either decided or withdrawn. Before recommencing driving check with Service SA that the appeal documentation has been served on the Registrar of Motor Vehicles and that the disqualification has been suspended. There can be a delay of several days between lodging the appeal at court and notification of the Registrar of Motor Vehicles, so it is a good idea to confirm this before driving again.

Will I be subjected to a curfew?

The serious disqualification offence curfew is no longer imposed for drivers disqualified after 28 July 2014 and will cease to apply to drivers affected by these conditions as of 28 July 2014.

Can learner drivers appeal disqualification?

Drivers disqualified while holding a Learner's Permit cannot appeal.

Is there a limit to how many appeals I can make?

If you have appealed successfully you cannot appeal again within 5 years of the date of the appeal hearing. If you breach your conditions again, it is important to seek advice as soon as practicable after the offence is committed.

For further information see our fact sheet 'Appealing disqualification for breach of conditions'.

*Note: If, as a result of an administrative error, a notice of disqualification is not given to a person by the Registrar within 12 months, then the Registrar can not give the notice of disqualification. The Registrar can give the notice of disqualification by sending it by post.[ see s 94(1)-(2) Motor Vehicles Act 1959 (SA)].

Safer Driver Agreements

Provisional licence holders who have been issued with a notice of disqualification can choose to enter a Safer Driver Agreement instead of serving the 6 month disqualification period [Motor Vehicles Act 1959 (SA) s 81BA]. The agreement will apply for the duration of the provisional licence.

A provisional licence holder will only be eligible to enter into a Safer Driver Agreement if the following conditions are satisfied:

  • the disqualification is not related to a serious disqualification offence; and
  • they have not entered into any other Safer Driver Agreements in the last 5 years; and
  • they have not had a successful Magistrates Court appeal against disqualification in the last 5 years.

Effect of Safer Driver Agreement

  • Existing licence is cancelled
  • The disqualification is removed and the person is entitled to apply for a licence. Despite the removal of the disqualification, when applying for a licence the person is taken as making an application at the end of the disqualification period.

With the removal of the licence regression scheme, disqualified drivers will return to the licence they were on when they committed the offence, rather than the previous stage. For example, if a driver on a P1 licence commits a breach of conditions resulting in disqualification and enters into a Safer Driver Agreement, he/she will be able to apply for a P1 licence rather than going back to a Learner’s Permit.

If a driver subsequently breaches their licence conditions or accumulates 4 or more demerit points again they will be disqualified for a period of 12 months. The disqualification period must be served as there is no provision for an appeal to the Magistrates Court [Motor Vehicles Act 1959 (SA) s 81BB(2)].

Visiting motorists

Can I drive on my interstate licence in South Australia?

Interstate licence holders can drive on their interstate licence for a period of up to 3 months before having to apply for a South Australian licence.

Can I drive on my overseas licence in South Australia?

Foreign licence holders who are permanent residents at the time of their arrival in Australia can use their foreign licence for a period of up to 3 months before being required to apply for a South Australian licence.

Temporary residents and tourists can drive on their foreign drivers licence for the duration of their stay.

If I am disqualified interstate or overseas can I drive on my licence?

Interstate and foreign licence holders are restricted from driving if they are disqualified (whether interstate or overseas) and can be prohibited from driving if they are determined to be unsuitable to drive in South Australia or are impaired due to permanent or long-term injury or illness.

Boat Licences

The Harbors and Navigation Act 1993 (SA) prescribes that any person who operates a vessel that is fitted with an engine, or any other vessel so prescribed by regulation, holds either:

  • a boat operator's licence [47(3)(a)]; or
  • an exemption from the requirement to hold a boat operator's licence [47(3)(b)]; or
  • a special permit granted under the regulations [47(3)(c)]; or
  • a prescribed certificate of competency [ss 47(3)(d); 47(6)].

See section 47 of the Harbors and Navigation Act 1993 (SA).

Failure to adhere to the above requirements is an offence punishable by a fine of up to $5000 or an expiation fee of $315 [Harbors and Navigation Act 1993 (SA) s 47(3)].

Additionally, recreational vessels must also be registered to be used on any South Australian waterway [Harbors and Navigation Act 1993 (SA) s 55].

A person who holds an interstate boat operator's licence may operate a registered recreational vessel in South Australia for a period of up to 90 days. Beyond that time, they must apply for a South Australian boat operator's licence [Harbors and Navigation Regulations 2009 (SA) reg 80(c)].

Specific rules apply for children aged under 16 years, for the use of kayaks and canoes fitted with electronic motors, and for houseboats or boats for hire. For more information see the Service SA website on boat licences.

To apply for a boat licence, a person must be at least 16 years of age, must disclose any medical conditions, and must pass a written exam. Exams are conducted by Service SA. For more information on applying for a boat licence, see the Service SA South Australian Recreational Boating Safety Handbook.

There are a number of offences that apply if a vessel is unsafe, is operated without due care or in a dangerous manner, or is operated by someone so under the influence of drugs and alcohol as to be capable of exercising effective control of the vessel.

Demerit Points

In addition to penalties such as fines and licence disqualification, many offences also carry demerit points that are recorded on a person's licence. All references in this part are to the Motor Vehicles Act 1959 (SA) unless otherwise specified.

Some of the more common offences that attract demerit points are listed in the Summary of demerit points. The sa.gov.au website also has a more extensive pamphlet on demerit points showing the full list of offences and the points they carry - available here.

Where a person commits two or more offences arising from the same incident, they will only receive points for the most serious offence. For example, a person charged with both driving without due care (3 demerit points) and failing to give way (also 3 demerit points), will only attract 3 demerit points. However, if a person is convicted of or expiates two or more offences arising from the same incident and one of the offences is a red light offence and another is a speeding offence, demerit points are incurred in respect of both the red light offence and the speeding offence.

If I commit an offence interstate will this result in demerits against my South Australian licence?

Offences committed interstate are also recorded against a South Australian licence [Motor Vehicles Act 1959 (SA) s 99BB] and the Registrar has the power to suspend or cancel an interstate licence under the law of another State. This power also extends to foreign driver's licences.

When do demerit points take effect?

Demerit points apply from the date the offence was committed and not from the date of the conviction or the payment of the expiation notice.

When do demerit points cease to count?

Demerit points are erased three years after an offence is committed. Where excess points are accumulated and a disqualification is served these points will be erased at the end of the disqualification period.

How do I find out how many demerit points I have?

You can contact Contact Service SA on 13 10 84 to find out how many demerit points you have incurred, or apply for a report online at EzyReg (a small fee applies).

Disqualification or Good Behaviour Option

When will I be disqualified for having too many demerit points?

If you receive 12 or more demerit points within a three year period, the Registrar of Motor Vehicles will suspend you for:

  • 3 months if you have 12-15 demerit points
  • 4 months if you have 16-19 demerit points
  • 5 months if you have 20 or more demerit points

[Motor Vehicles Act 1959 (SA) s 98BC]

If you commit an offence which incurs demerit points, the offence date and number of points will be recorded on your licensing record. If your licensing record shows the incursion of 12 or more demerit points over a three year period, you will be liable for disqualification.

How do I know how many demerit points I have incurred?

You can check your demerit points by contacting Service SA either by phone (13 10 84) or in person. You can also check your points online if you have an EzyReg account or mySA GOV account via this website.

When you have incurred 6 demerit points, you should receive a written notice, effectively a warning, from the Registrar of Motor Vehicles advising you that you have incurred 6 points.

How will I know I am disqualified?

The disqualification notice is served in the first instance by ordinary post to your last known address. Once received you are required to the attend personally at the Department for Planning, Transport and Infrastructure to acknowledge receipt of the notice and pay the Registrar an administration fee.

What will happen if I don’t get the notice or fail to respond to it?

If you fail to comply with the notice another notice will be issued personally by a process server, the cost of which will be met by you.

If personal service is unsuccessful you will be prohibited from transactions with the Department for Planning, Transport and Infrastructure until you provide acknowledgement of receipt of the notice and pay the administration and service fees.

When does the disqualification begin?

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If you are already disqualified for another reason (for example, as part of a penalty imposed by a court), the demerit point disqualification begins once the other period of disqualification ends.

What happens to the points once I am disqualified?

All of the demerit points that led to the disqualification will be erased once the disqualification takes effect. Also erased will be any demerit points resulting from other offences committed prior to the disqualification, whether or not you had been convicted of, or expiated, those offences when the disqualification took effect.

What happens if I accumulate further points after receiving notice of disqualification but before I commence the disqualification?

If you accumulate further points after a notice has been served advising of your disqualification but before you actually commence the disqualification period, these points will not be erased. If in the ensuing three years from that date, you incur 12 or more demerit points, you will be liable to disqualification.

What happens if I accumulate further points after serving the disqualification period?

If, after the disqualification period, you commit an offence which incurs demerit points, the date of the offence and the points will be recorded on your licensing record. If in the ensuing three years from that date you incur 12 or more points, you will be liable for disqualification.

Is there any way I can keep my licence if I have exceeded the maximum demerit points?

You can keep your licence by choosing to take a ‘good behaviour’ option instead of serving a demerit points disqualification. The good behaviour option is offered with the demerit points disqualification notice. Instead of surrendering your licence you make a formal application to accept a 12 month good behaviour option. This must be done within 21 days of receiving the notice [Motor Vehicles Act 1959 (SA) s 98BE(2)].

What is the effect of the good behaviour option?

By taking the good behaviour option, you can continue to drive but your licence will be subject to the condition that you do not incur 2 or more demerit points during the 12 month good behaviour period. If you incur 2 or more points you will be disqualified for double the original disqualification period [see Motor Vehicles Act 1959 (SA) s 98BE (2a)].

For example if you incurred 14 points, your licence would be disqualified for 3 months. By accepting a good behaviour option, you would face 6 months disqualification if you incurred 2 or more demerit points during the 12 month period. Once the period of the conditional licence commences all the demerit points previously recorded are erased.

What if I have served a court ordered disqualification for an offence and demerit points also apply?

If you have served a court ordered disqualification period you will need to renew your licence once the disqualification period has been served. If you fail to do so this will mean that you are not eligible for the good behaviour option if demerit points also apply for the original offence.

Summary of Demerit Points

Demerit points only apply to offences committed under the Road Traffic Act 1961 (SA) and/or regulations made under the Act, except an offence of breaching a condition imposed by a court following a successful demerit points appeal (1 point).

The table below summarises some of the more common offences that attract demerit points. References in the table are to the Road Traffic Act 1961 (SA) or the Australian Road Rules (ARR). A complete list of offences attracting demerit points is set out in schedule 4 of the Motor Vehicles Regulations 2010 (SA).

Many offences to which demerit points apply will also result in a fine/expiation fee being applicable. Schedule 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) lists the expiation fee amounts for offences contained in the Road Traffic Act 1961 (SA) (and its regulations) and the Australian Road Rules.

A complete summary of offences and the points they carry is available on the sa.gov.au website.

Offence pts
Driving under the influence of alcohol or drugs [s 47(I)] 6

Driving above the prescribed concentration of alcohol [s 47B]

  • Less than 0.08
  • 0.08 - 0.149
  • 0.15 and over

4

5

6

Refuse breath test [s 47E] 6
Dangerous driving [s 46] 6
Excessive speed [s 45A] 9
Failing to stop after accident where a person or animal is injured or killed [s 43(1)] 5
Fail to stop for red traffic light [ARR 56] 3
Fail to give way to police or emergency vehicle [ARR 79] 3
Fail to give way when changing lanes [ARR 148] 3
Fail to wear seatbelt — driver [ARR 264] 3

Exceed speed [ARR 20]

  • less than 10 kph
  • 10 - 20 kph
  • 20 - 30 kph
  • 30 kph or more

2

3

5

7

Failing to indicate [ARR 46,48] 2
Using head lights on high beam [ARR 218] 1

Alcohol, Drugs and Driving

Alcohol and/or drugs can have a significant effect on a person's ability to drive. It is estimated that about two schooners of full strength beer or three schooners of low alcohol beer drunk in an hour will raise an average person's blood alcohol concentration (BAC) to 0.08 per 100 mls of blood.

Effects of alcohol

However, the effect of alcohol varies greatly from person to person. It is affected by a variety of factors, such as:

  • the length of time since the person has eaten
  • how much they weigh
  • gender
  • level of fitness
  • the health of their liver
  • whether they regularly drink
  • mood
  • the type of drink consumed
  • the person's efficiency in eliminating alcohol from the body (which may vary from time to time as well as from person to person).

Drink driving offences

All references in this part are to the Road Traffic Act 1961 (SA) unless otherwise stated. The Act creates four major offences:

  • DUI (driving under the influence of alcohol or drugs) [s 47];
  • PCA (driving with a prescribed concentration of alcohol) [s 47B];
  • Driving with Prescribed Drug in Oral Fluid or Blood [s 47BA]; and
  • Refusing to blow (refusing to comply with directions in relation to a breath test) [s 47E].

The elements of each of these offences is discussed in the following sections.

See also our fact sheet Drink Driving and the Law Fact Sheet.

As of 24 April 2018, specific offences apply where a person is caught drink or drug driving while a child aged under 16 years is present in the vehicle at the time of the offence.

Alcohol and drug penalties

The penalties for any of the offences described above are very severe and are set out below, and many include mandatory licence disqualification periods.

Automatic loss of licence applies for the majority of drink driving offences. For further details see Immediate loss of licence.

As of 8 March 2018, a mandatory licence disqualification applies for a first offence of driving with prescribed drug in oral fluid or blood.

Driving under the Influence (alcohol or drugs) : Road Traffic Act 1961 (SA) s 47

First Offence

A fine of not less than $1100 and not more than $1600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months; and 6 demerit points.

In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47(3)(b)].

Subsequent Offence

A fine of not less than $1900 and not more than $2900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years; and 6 demerit points.

Driving under the Influence (alcohol or drugs) While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47(1a)

First Offence

A fine of not less than $1100 and not more than $1600, or imprisonment for not more than three months, and a mandatory licence disqualification for not less than twelve months; and 6 demerit points.

In the case of a first offence, where the Court is satisfied by evidence given on oath that the offence is trifling the court may order a lesser period of disqualification but for not less than one month [see s 47(3)(b)].

Subsequent Offence

A fine of not less than $1900 and not more than $2900, or imprisonment for not more than six months, and a mandatory licence disqualification for not less than three years; and 6 demerit points.

Prescribed Concentration of Alcohol: Road Traffic Act 1961 (SA) s 47B

First Offence

0.05-0.079: Expiation fee: $600 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2] and 4 demerit points OR $1100 (court penalty) and 4 demerit points; licence disqualification of not less than 3 months

0.08-0.149: $900-$1300; immediate licence disqualification of not less than 6 months; plus 5 demerit points

0.15 or over: $1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Second Offence

0.05-0.079: $1100; licence disqualification of not less than 6 months; plus 4 demerit points

0.08-0.149: $1100-$1600; automatic licence disqualification of not less than 12 months; plus 5 demerit points

0.15 or over: $1600-$2400; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Third Offence

0.05-0.079: $1100; licence disqualification of not less than 9 months; plus 4 demerit points

0.08-0.149: $1500-$2200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Subsequent Offence

0.05-0.079: $1100; licence disqualification of not less than 12 months; plus 4 demerit points

0.08-0.149: $1500-$2200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Prescribed Concentration of Alcohol While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47B(1a) - only applies to offences where the Blood Alcohol Content is 0.08 or above

First Offence

0.08-0.149: $900-$1300; immediate licence disqualification of not less than 6 months; plus 5 demerit points

0.15 or over: $1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Second Offence

0.08-0.149: $1100-$1600; automatic licence disqualification of not less than 12 months; plus 5 demerit points

0.15 or over: $1600-$2400; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Third Offence

0.08-0.149: $1500-$2200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Subsequent Offence

0.08-0.149: $1500-$2200; automatic licence disqualification of not less than 2 years; plus 5 demerit points

0.15 or over: $1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Driving with Prescribed Drug: Road Traffic Act 1961 (SA) s 47BA

First Offence

If expiated: $600 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2],4 demerit points and licence disqualification of 3 months [see Motor Vehicles Act 1959 (SA) s 81D(2)(a)(ii)]; OR

Court penalty: $900-$1300; 4 demerit points; licence disqualification of not less than 6 months

Second Offence

$1100-$1600 and 4 demerit points; licence disqualification of not less than 12 months

Third Offence

$1500-$2200 and 4 demerit points; licence disqualification of not less than 2 years

Subsequent Offence

$1500-$2200 and 4 demerit points; licence disqualification of not less than 3 years

Driving With Prescribed Drug While Child Aged under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47BA(1a)

First Offence

If expiated: $600 [see Road Traffic (Miscellaneous) Regulations 2014 (SA) Schedule 4 Part 2],4 demerit points and licence disqualification of 3 months [see Motor Vehicles Act 1959 (SA) s 81D(2)(a)(ii)]; OR

Court penalty: $900-$1300; 4 demerit points; licence disqualification of not less than 6 months

Second Offence

$1100-$1600 and 4 demerit points; licence disqualification of not less than 12 months

Third Offence

$1500-$2200 and 4 demerit points; licence disqualification of not less than 2 years

Subsequent Offence

$1500-$2200 and 4 demerit points; licence disqualification of not less than 3 years

Refuse Breath Test: Road Traffic Act 1961 (SA) s 47E

First Offence

$1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Breath Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47E(3a)

First Offence

$1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Compulsory Blood Test: Road Traffic Act 1961 (SA) s 47I

First Offence

$1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Compulsory Blood Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47I(7)

First Offence

$1100-$1600; automatic licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1900-$2900; automatic licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Drug Test: Road Traffic Act 1961 (SA) s 47EAA

First Offence

$900-$1300; licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1500-$2200; licence disqualification of not less than 3 years; plus 6 demerit points

Refuse Drug Test While Child Aged Under 16 Present in Vehicle: Road Traffic Act 1961 (SA) s 47EAA(9a)

First Offence

$900-$1300; licence disqualification of not less than 12 months; plus 6 demerit points

Subsequent Offence

$1500-$2200; licence disqualification of not less than 3 years; plus 6 demerit points

Challenging breath test results

Blood tests

Section 47K of the Road Traffic Act 1961 (SA) states that where the police have complied with the requirements relating to breath analysing instruments and procedures, then the concentration of alcohol indicated by the breath analysis instrument as being present in the blood, is presumed to have been present in the blood at the time of analysis and throughout the preceding 2 hours. If the breath analysis can be said to have been done more than 2 hours after the driving or attempted driving, then the police cannot rely on the presumption [see for example, Moore v Police (1997) 27 MVR 116; [1997] SASC 6448].

If a driver wishes to challenge the accuracy of the reading of an alcotest or breath analysis machine taken within 2 hours of their driving or attempted driving, he or she will have to undergo a blood test. If a blood test is not taken, the result of the breath test cannot be challenged other than in exceptional circumstances see consuming alcohol after driving.

  • All drivers recording over 0.05 BAC on a breath analysis reading have the right to undergo a blood test.
  • If a reading of > 0.05 is recorded, police are obliged to supply a form requesting a blood kit.
  • Tests must be conducted by a registered medical practitioner.
  • The kit contains a statement of the driver’s right to have a blood test together with instructions to both the driver and a medical practitioner on the procedures that must be followed.
  • The responsibility for making arrangements to have the blood sample taken lies with the driver. However, if outside metropolitan area and it appears to the police that the person will be unable to travel to a place to have a blood sample taken, the police must provide transport to a suitable place for the blood sample to be taken if requested.
  • If outside the metropolitan area, the blood test may be taken by a registered nurse.
  • The sample is divided into halves with one going to the driver and the other to the police. The police sample will be analysed with the results sent to the driver.
  • A driver may have their sample tested independently if they wish. If this is intended then it is important that the sample be kept in a cool place and analysed as soon as reasonably practicable.
Problems with challenging breath analysis results

A blood test will usually provide a reading lower than that provided by the breath analysis. This is to be expected because it is highly unlikely that the breath analysis and the blood test will be performed within the same hour. Usually a matter of hours will pass before the driver is able to get to a hospital and have a blood sample taken. During this time their blood alcohol level will naturally start to fall, provided they have not been drinking in the interim.

Alcohol elimination rate

When challenging the results of a breath analysis it is necessary to determine the alcohol elimination rate of the person concerned. The alcohol elimination rate measures the rate at which an individual eliminates alcohol from their blood. Alcohol elimination rates vary from person to person but generally between 0.01 to 0.02 gm of alcohol per 100 ml of blood per hour is considered within the normal range, in addition to a 25% margin of error.

Expert medical evidence required

In order to establish that a breath analysis reading was inaccurate, the results of the blood test must be explained and interpreted to the court by a medical expert who can provide evidence about the driver’s alcohol elimination rate at the time of the offence [Tonkin v Police [2006] SASC 145]. This would require further testing through a laboratory at the driver’s expense.

Compulsory blood tests

Compulsory testing after hospital admission

The police do not have the power to require a person to have a blood test. However a doctor must take a blood test from anyone aged 10 years or more and who is admitted to hospital after a road accident unless there is a good medical reason why the blood sample should not be taken [Road Traffic Act 1961 (SA) s 47I]. The provision only applies to a hospital declared under Schedule 2 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).

Similarly, a doctor must take a blood test in the circumstances prescribed above and where a child aged under 16 years was present in the vehicle at the time of the accident [see Road Traffic Act 1961 (SA) s 47I(7)]. Specific penalties apply if a person refuses to submit to a blood test in these circumstances.

Refusing a compulsory blood test

The blood test must be done as soon as possible after the person is admitted to hospital and within eight hours of the motor vehicle accident. It is an offence to refuse the blood test to be taken without a good medical reason [Road Traffic Act 1961 (SA) s 47I]. Penalties apply for refusing to submit to a compulsory blood test, including a fine and a mandatory licence disqualification - see Road Traffic Act 1961 (SA) ss 47I(7), 47I(14) and 47I(14a). Police have the power to issue an immediate licence disqualification for these offences [see Road Traffic Act 1961 (SA) s 47IAA].

Procedure for blood tests

The blood sample is divided into two equal portions, one of which is given to the police to be analysed and the person is given a notice advising that the other sample may be collected and separately analysed as a check against the police analysis. If the person is not given the opportunity of an independent analysis, the police analysis cannot be given in evidence. The blood sample is to be kept for collection for a period of 12 months from the date the sample was taken. If independent analysis of the sample is required it is recommended that this be arranged as soon as practicable using one of the independent pathology groups listed under Pathology Laboratories in the Yellow Pages.

Consuming alcohol after driving

Generally it is not possible to challenge the results of a breath test taken within 2 hours of driving without a blood test. Legal advice should be sought if the breath test is taken more than 2 hours after driving, or if the driver has consumed alcohol after driving but before the breath test is taken.

It may be possible to challenge the results of the breath test relied on for a DUI or PCA offence where:

  • the driver satisfies the court that he or she has consumed alcohol after driving but before the breath test; and
  • the driver did not consume the alcohol following the police request that he or she submit to the breath test; and
  • if there was an accident and the driver discharged all duties required to be discharged at the scene of the accident; and
  • taking into account the quantity of alcohol consumed after driving, the driver should not be found guilty or should be found guilty of a lesser category offence.

It will be a question of whether the driver is believed that any alcohol was consumed after the driving and what effect that alcohol had on the driver's blood alcohol level. It is possible that the court may find the driver guilty of a lesser offence (instead of an alcohol level of 0.15 BAC the court may decide the reading should be 0.09 BAC or may find the driver not guilty [Road Traffic Act 1961 (SA) s 47GA].

Driving under the influence

Elements of the offence

A person who drives, or who attempts to drive, a vehicle while so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle is guilty of the offence of driving under the influence [Road Traffic Act 1961 (SA) s 47].

Can be charged with DUI even if under legal limit

The charge of driving under the influence is not the same as driving with the prescribed concentration of alcohol and it is possible to be convicted of driving under the influence of alcohol even if the blood alcohol level is less than the prescribed concentration. It is not unknown for people to be convicted of driving under the influence with a blood alcohol level of 0.04 of alcohol per 100mls of blood or even less. For the purposes of this offence, a person is deemed to be incapable of exercising effective control of a vehicle if any physical or mental faculty is lost or appreciably impaired. For the penalties, see alcohol and drug penalties.

Evidence of DUI

The prosecution may attempt to prove charges of driving under the influence by bringing evidence of the manner in which the vehicle was being driven and of signs of intoxication (including observations by the police and other witnesses), the smell of alcohol about the driver, unsteadiness, watery or bloodshot eyes and slow or slurred speech.

Driving under the influence where child aged under 16 present in vehicle

A person who drives, or attempts to drive, a vehicle so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle AND where a child aged under 16 years is present in the vehicle, is guilty of an offence [Road Traffic Act 1961 (SA) s 47(1a)].  

The same penalties apply (being a fine, demerit points and licence disqualification) as if the person was charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

Additionally, where a person is convicted of driving under the influence while a child aged under 16 is present in the vehicle, they will be required to undergo a drug or alcohol dependency assessment prior to reapplying for their licence at the end of the disqualification period [Motor Vehicles Act 1959 (SA) ss 79B(1) and 79B(2)]. See: Drug and Alcohol Assessments.

Drug and alcohol dependency assessment

Where a person has been disqualified for certain drink and drug driving offences, and they seek to re-apply for their licence at the conclusion of their disqualification period, they may be required to undergo a drug or alcohol dependency assessment prior to their licence being re-issued.

An applicant will be required to undergo an assessment where the offence for which they were disqualified for was:

  • a drink driving offence where a child aged under 16 years was present in the vehicle [see Road Traffic Act 1961 (SA) ss 47(1a), 47B(1a), 47E(3a), and 47I(7); Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)]; OR
  • a prescribed drink driving offence (i.e. any offence other than a category one offence) and they have been convicted of at least one other prescribed drink driving offence, or have been convicted of or expiated at least two other drink driving offences within the preceding five years of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(1)(c)(ii)]; OR
  • a drink driving offence and they have been convicted of, or expiated, at least two other drink driving offences within the preceding five years of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(1)(c)(iii)].

In these instances, prior to issuing a licence the Registrar of Motor Vehicles must direct the applicant to submit to an alcohol dependency assessment to show they are not dependent on alcohol [see Motor Vehicles Act 1959 (SA) s 79B(1)]. The Registrar can issue the licence without requiring the applicant to submit to an assessment, if they are satisfied that the applicant has successfully completed an alcohol dependency treatment program not more than 60 days before applying for the licence [see Motor Vehicles Act 1959 (SA) s 79B(1)].

Similar provisions apply to certain drug driving offences. An applicant for a licence will be required to undergo a drug dependency assessment before being issued a licence, where the offence for which they were disqualified for was:

  • a drug driving offence where a child aged under 16 years was present in the vehicle [see Road Traffic Act 1961 (SA) ss 47(1a), 47BA(1a), 47EAA(9a), and 47I(7); Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)]; OR
  • a drug driving offence and they have been convicted of, or expiated, at least one other drug driving offence within the preceding five years of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 79B(2)(c)(ii)].

For these offences, prior to issuing a licence the Registrar of Motor Vehicles must direct the applicant to submit to a drug dependency assessment to show they are not dependant on drugs [see Motor Vehicles Act 1959 (SA) s 79B(2)]. The Registrar may issue the licence without requiring the person to submit to an assessment, if they are satisfied that the applicant has successfully completed a drug dependency treatment program not more than 60 days before applying for the licence [see Motor Vehicles Act 1959 (SA) s 79B(2)].

If a person undergoes a drug or alcohol dependency assessment, and on the basis of the report produced from that assessment they are deemed to be dependant on drugs or alcohol, the Registrar must refuse to issue them a licence until they are satisfied the person is no longer drug or alcohol dependant [see Motor Vehicles Act 1959 (SA) ss 79B(4) and 79B(5)]. The Registrar can consider reports from approved drug and alcohol assessment providers in determining whether to issue the licence to the applicant. The applicant is liable for the cost of the drug or alcohol dependency assessment and any participation in a treatment program.

Drug driving

Roadside drug screening tests

Since 1 July 2006, police have had the power to conduct random roadside drug screening tests to detect drivers under the influence of certain illicit drugs.

Testing is for:

  1. THC (the active substance in cannabis)
  2. methylamphetamine (also known as speed, ice or crystal meth)
  3. MDMA (more commonly known as ecstasy)

Driving with prescribed drug

It is an offence for a person to drive with these drugs in his or her oral fluid or blood — this includes a passenger acting as ‘qualified supervising driver’ for a learner driver. For details of penalties see Alcohol and drug penalties.

Any driver (or qualified supervising driver) may be required to undergo a random roadside drug screening test and tests can be conducted anywhere in South Australia.

Driving with prescribed drug where child aged under 16 present in vehicle

It is an offence for a person to drive with a prescribed drug in their oral fluid or blood, and while a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47BA(1a)].

The same penalties for this offence apply as if the person had been charged with driving with a prescribed drug in oral fluid or blood pursuant to section 47BA(1) of the Road Traffic Act 1961 (SA).

A person convicted of the offence of driving with a prescribed drug in oral fluid or blood will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [see Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Driving under the influence (DUI)

It is an offence for a person to drive while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle [Road Traffic Act 1961 (SA) s 47(1)]. For the purpose of this offence, you may be deemed to be incapable of exercising effective control if your physical and/or mental capabilities are appreciably impaired. Laboratory testing showing the presence of a drug in your system may form part of the evidence for this offence, but it is not essential.

Driving under the influence (DUI) while child aged under 16 present in vehicle

It is an offence for a person to drive while so much under the influence of a drug as to be incapable of exercising effective control of the vehicle, and while a child aged under 16 years is present in the vehicle [Road Traffic Act 1961 (SA) s 47(1a)].

The same penalties apply as if a person had been charged with driving under the influence pursuant to section 47(1) of the Road Traffic Act 1961 (SA).

A person convicted of this offence will be required to undergo a drug dependency assessment prior to having their licence reissued at the end of the disqualification period [Motor Vehicles Act 1959 (SA) s 79B(2)(c)(i)].

Is there a minimum amount of drugs that can be present without an offence being committed?

Unlike drink driving, where a prescribed concentration of alcohol must be present for an offence to have been committed, the presence of any amount of the drugs tested will constitute an offence of driving with prescribed drug in your oral fluid or blood. THC remains detectable for several hours after the drug has been taken and methylamphetamine and MDMA for a period of 24 hours, or longer, depending on the person.

Can I refuse a drug test?

Where a person has been required to submit to an alcotest or breath analysis [Road Traffic Act 1961 (SA) s 47E], they may also be required to submit to a drug screening test or oral fluid analysis [Road Traffic Act 1961 (SA) ss 47EAA(1) and (2)]. It is an offence to refuse, or to fail to comply with, a request for a drug screening test, oral fluid analysis or blood test. It is also an offence to refuse, or fail to comply with, a request for a drug screening test, oral fluid analysis or blood test where a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47EAA(9a)]. For details of penalties see Alcohol and drug penalties.

What happens with the samples taken?

All samples taken must be destroyed if there is no prosecution of any offence or at the conclusion of court proceedings. Samples taken cannot be used in DNA testing nor can they be used in relation to offences other than driving offences.

Can random saliva testing be used to detect other drugs?

Random saliva testing (drug screening testing) will only be used for the detection of THC, methylamphetamine and MDMA. However, drivers impaired by other drugs (whether prescription or illicit) can expect to be charged with the existing offence of driving under the influence of alcohol or drugs.

Who can conduct drug screening tests?

All uniformed police officers can conduct drug screening tests.

How will random drug screening tests be conducted?

On being stopped by police, drivers will first be required to complete an alcohol test.

Drivers may then be requested to provide a saliva sample by placing a swab in their mouth or touching it with their tongue until a sample is collected. This is referred to as a drug screening test.

The initial saliva test can be conducted at the roadside without a driver having to leave his/her vehicle. The sample will be screened at this stage with results being available in approximately 5 minutes.

Where a positive result is recorded from the initial drug screening test, an oral fluid sample will then be collected and sent to Forensic SA for further laboratory analysis.

When will action be taken?

In the event a driver records positive results to drug testing no further action can be taken until the results of the laboratory analysis are known. Before any expiation notice can be issued or charge can be laid the presence of either THC or methylamphetamine must be confirmed by the laboratory analysis. This process will take several weeks but where the presence of these drugs is established the driver will then be fined or charged accordingly.

Can I continue to drive if I have tested positive in a drug screening test?

A driver who tests positive for THC, methylamphetamine or MDMA through an initial drug screening test will be advised by police not to drive until the drug is no longer detectable in their system. For THC this will be up to 4 hours and for methylamphetamine and MDMA 24 hours.

Where a police officer believes a driver to be unfit to drive due to alcohol or drug consumption they have the power to require the driver to surrender their keys and immoblise the vehicle [see Road Traffic Act 1961 (SA) s 40K(4)].

What happens if I receive an expiation notice?

For a first offence of driving with prescribed drug in oral fluid or blood, and after the presence of the drug in oral fluid or blood has been confirmed by laboratory analysis, you will receive an expiation notice. You have the ability to either pay the expiation notice, seek a review of the expiation notice, or elect to be prosecuted, see: Expiation Fees and Fines.

If you pay the expiation notice, you will then receive notification from the Registrar of Motor Vehicles that you will be disqualified for a period of 3 months [see section 139BD of the Motor Vehicles Act 1959 (SA) for the process of service and commencement of notices of disqualification].

If you elect to be prosecuted instead of paying the expiation notice, the potential court ordered disqualification period increases to 6 months [Road Traffic Act 1961 (SA) s 47BA(4)(a)(Ii)].

How will I know I am disqualified?

The disqualification notice is served in the first instance by ordinary post to your last known address. Once received you are required to attend personally at the Department for Planning, Transport and Infrastructure to acknowledge receipt of the notice and pay the Registrar an administration fee.

What will happen if I don’t get the notice or fail to respond to it?

If you fail to comply with the notice another notice will be issued personally by a process server, the cost of which will be met by you.

If personal service is unsuccessful you will be prohibited from transactions with the Department for Planning, Transport and Infrastructure until you provide acknowledgement of receipt of the notice and pay the administration and service fees.

When does the disqualification begin?

The disqualification takes effect 28 days from the date specified in the notice or 28 days from the date the notice was served. If you are already disqualified for another reason (for example, as part of a penalty imposed by a court), the drug driving disqualification begins once the other period of disqualification ends.

What if I receive a summons?

If you receive a summons to attend court, then the matter will be heard in court and you will have the opportunity to plead guilty or not guilty to the charge. If convicted, the court will determine and impose a penalty, including a disqualification period (if appropriate, and in line with any statutory requirements). It is recommended you seek legal advice prior to any court appearance.

Immediate loss of licence

Offences attracting immediate loss of licence

Police have the power to impose immediate licence disqualification or suspension for drink driving offences [Road Traffic Act 1961 (SA) s 47IAA]. They require only a reasonable belief that a person has committed an offence in one of the following categories:

  • category 2 (0.08-0.149) offence; or
  • category 3 (0.15 or over) offence; or
  • refusal to submit to drug test [Road Traffic Act 1961(SA) s 47EAA(9)]; or
  • refusal to submit to drug test when a child aged under 16 years was present in vehicle [Road Traffic Act 1961 (SA) s 47EAA(9a)] ;or
  • refusal to submit to an alcotest or breath analysis [Road Traffic Act 1961 (SA) s 47E(3) ]; or
  • refusal to submit to an alcotest or breath analysis when a child aged under 16 years was present in vehicle [Road Traffic Act 1961 (SA) s 47E(3a)]; or
  • refusal to comply with a compulsory blood test [Road Traffic Act 1961 (SA) s 47I(14) ]; or
  • refusal to comply with a compulsory blood test when a child aged under 16 years was present in vehicle [Road Traffic Act 1961 (SA) s 47I(7)].

When does the immediate disqualification commence?

Suspension or disqualification for offences in the above categories commences from the time the notice is issued by police (i.e. at the time the offence was committed) until proceedings for the offence are determined by a court, or are withdrawn or discontinued, or the Magistrates Court makes an order that would have the effect of ending the period of suspension or disqualification. In the event that a conviction occurs the suspension/disqualification continues until the sentenced period has been served.

Can they be enforced nationwide?

A nationwide agreement exists to enforce these suspensions so they are effective in all states. For example, if a driver with a NSW licence is charged with a category 3 drink driving offence whilst driving in South Australia (e.g. exceed Prescribed Concentration Alcohol - 0.15), their resulting suspension will apply within South Australia and any other state immediately.

Conditions for appeal

A person can apply to have a disqualification or suspension lifted or to have the period of disqualification or suspension reduced. Applications must be in writing in the form prescribed and are made to the Magistrates Court. Once an application to have the disqualification or suspension lifted or reduced is filed with the Court, the matter will be heard before a Magistrate immediately through a Directions Hearing.

The Magistrates Court may make the following orders under the conditions specified:

  • where there is a reasonable prospect that the applicant would, in proceedings for the offence, be acquitted of the offence and the evidence before the Court does not suggest that the applicant may be guilty of another offence under s 47IAA — an order that the person is not disqualified or suspended
  • if the offence to which the notice relates is a category 2 or category 3 offence and it is a first offence and the Court is satisfied, on the basis of evidence given by or on behalf of the applicant, that there is a reasonable prospect that the applicant might, in proceedings for the offence, successfully argue that the offence was trifling — an order that the period of disqualification or suspension be reduced to a period of 1 month
  • if the offence to which the notice relates is a category 3 offence and the Court is satisfied, on the basis of evidence given by or on behalf of the applicant, that there is a reasonable prospect that the applicant would, in proceedings for the offence, be acquitted of the offence but the evidence before the Court suggests that the applicant may be guilty of a category 2 offence — an order that the period be reduced to 6 months

Keeping a licence

Trifling offences

Not only are the above penalties severe but the court only has very limited power to reduce the penalties below the minimum. A court can reduce the minimum disqualification to one month for a first offence if it is satisfied the offence is trifling.

When deciding whether or not an offence is trifling, the court takes into account all the surrounding circumstances of the driving but a person's need for a licence is not relevant to this issue.

The factors considered by the courts include the extent of impairment of faculties, the locality, the nature and extent of the driving, the reason for the offending behaviour and the actual or potential damage to the public. A low alcohol reading alone will not be enough to be considered trifling; there must be additional circumstances that are rare and exceptional. It is extremely rare for an offence to be categorised as trifling.

Examples where an offence was not considered trifling

Where an alcohol reading of just within the prescribed limit i.e. 0.08 is recorded. If there are no other circumstances to make the situation unusual or atypical this is not a trifling offence (Boyland v Dunsmore(1988) 141 L.S.J.S. 186).

Where the driver did not realise they were over the prescribed limit i.e. the offending was 'inadvertent' because it was not intended. The courts have held that since most people do not know their actual blood alcohol level when they make the decision to drive this cannot be either rare or exceptional (see Przybtniak v Police[1998] SASC 6581).

Where a driver drove a short distance (400 metres and back) to a service station in the middle of the night to buy milk for his sick children. The fact that the distance travelled was a very short one was rejected by the court as a factor making the offending trifling. Similarly the argument that the offending was prompted by humanitarian reasons was not accepted by the courts. For offending to be classified as trifling on humanitarian grounds there must be a compelling and urgent need with no other courses of action available (see Police v Mutton [2006] SASC 328).

Minimum disqualification period must be imposed regardless of circumstances

When determining the penalty, courts cannot consider the person's need for their licence. In Janz v Woolven (1990), the Full Bench of the Supreme Court held that the minimum licence disqualification must be imposed even where a licence is needed for work and the loss of the licence will result in great personal or financial hardship. Hence most defendants lose their licence for at least the minimum period, and it is not possible to retain one's licence even on a restricted basis, eg during working hours, even if the defendant will lose his/her employment as a result. When the disqualification period is over, a person must hold a provisional licence for at least one year.

Alcohol interlock device

From 1 May 2009 the mandatory alcohol interlock scheme applies.

Mandatory alcohol interlock scheme

Drivers who commit serious drink drive offences must have an alcohol interlock device fitted to their vehicle for a time equal to their disqualification. The mandatory alcohol interlock scheme applies after the disqualification period has been served.

The following offences are classified as serious drink driving offences for which the mandatory interlock scheme applies:

  • A second or subsequent offence of driving with a blood alcohol reading above 0.08 (i.e. category 2 offence)
  • Driving with a blood alcohol reading at or above 0.15 (i.e. category 3 offence)
  • Refusing to provide a breath or blood sample for alcohol testing
  • Driving under the influence

[Motor Vehicles Act 1959 (SA) s 81E]

In determining whether an offence of driving with a blood alcohol reading above 0.08 (category 2 offence) is a second offence for the purposes of assessing whether the mandatory interlock scheme applies, any previous drink driving offencs (other than category 1 offences) will be taken into account but only if the previous offence was committed within the 5 year period immediately preceding the date of the category 2 offence.

The cost of fitting of the alcohol interlock device will be the responsibility of the driver but a concession scheme will be available to eligible concession card holders.

Conditions of mandatory interlock scheme

  • Driver must not drive any other motor vehicle than that nominated to the Registrar to be fitted with alcohol interlock device
  • Driver must not drive nominated vehicle unless it has been fitted with a properly functioning alcohol interlock device that has been installed by an approved alcohol interlock provider
  • Driver must not interfere with the alcohol interlock device or cause or permit the device to be interfered with
  • Driver must carry certificate certifying that the alcohol interlock fitted to the vehicle was properly functioning when last examined by approved alcohol interlock provider
  • Driver must produce certificate for inspection when required to do so by a police officer
  • Driver must provide nominated vehicle for inspection by an approved alcohol interlock provider if served by written notice by Registrar

[Motor Vehicles Act 1959 (SA) s 81F].

Drivers required to enter into the mandatory interlock scheme are exempt from the requirement to undergo a drug or alcohol dependency assessment pursuant to section 79B of the Motor Vehicles Act 1959 (SA).

Offences

It is an offence to contravene any of the conditions of the mandatory interlock scheme [s 81H].

Maximum penalty: $2500

It is an offence to assist the holder of a licence subject to the mandatory interlock scheme to contravene the conditions [s 81H].

Maximum penalty: $2500

Driving without a licence having committed a serious drink drive offence [s 74(2A)].

Maximum penalty: $5000 or 1 year imprisonment

See further: the Department of Planning, Transport and Infrastructure's webpage and brochure on the Mandantory Alcohol Interlock Scheme.

Other effects of alcohol or drug driving

Must hold probationary licence

Whether a person serves the full disqualification period or resumes driving using an alcohol interlock device, the person must hold a probationary licence for at least one year (see probationary licence).

Insurance exclusions

The fact that a driver has been convicted of driving with prescribed alcohol or drugs cannot be taken to show that they were under the influence and incapable of exercising effective control of the motor vehicle at the time and any insurance policy that attempts to limit or exclude liability on the basis of such a conviction is void [Road Traffic Act 1961 (SA) s 47C and Wood v Zurich Aust Insurance Ltd [1997] SADC 3604, see also Insurance. Most insurance policies covering damage arising from motor vehicle accidents do, however, exclude the liability of the insurer if the driver was under the influence of alcohol or drugs at the time of the accident.

The South Australian compulory third party insurance policy currently requires the driver to refrain from driving while so much under the influence of alcohol or drugs that they are incapable of exercising effective control of the vehicle and to refrain from driving while there is present in his or her blood a concentration of .10 grams or more of alcohol in 100 mL of their blood. See the policy on the CTP Insurance Regulator's website here.

Prescribed concentration of alcohol

Elements of the offence

A person who drives, or attempts to drive, a motor vehicle while there is more than the 'prescribed concentration' of alcohol in the person's blood is guilty of the offence of exceed prescribed concentration of alcohol [Road Traffic Act 1961 (SA) s 47B].

Prescribed concentration of alcohol

The prescribed concentration of alcohol (PCA) for holders of an unconditional licence is 0.05 blood alcohol concentration (BCA). For unlicensed drivers or drivers of “prescribed vehicles”, the PCA is zero [Road Traffic Act 1961 (SA) s 47A].

Vehicles prescribed for this purpose include:

  • those with a gross vehicle mass exceeding 15 tonnes
  • a prime mover with an unladen mass exceeding 4 tonnes
  • a bus designed to carry more than 12 persons (including the driver) — applies whether passengers are being carried or not
  • a motor vehicle designed principally to carry between 8 and 12 passengers and that is used regularly for carrying passengers for hire, or for a business or community purpose — applies whether passengers are being carried or not.
  • a vehicle being used for carrying passengers for hire
  • a vehicle transporting dangerous goods (as defined in the Dangerous Substances Act 1979 (SA))

Penalties

For the penalties, see alcohol and drug penalties.

Learner, provisional and probationary drivers

Learner, provisional and probationary drivers also must drive with a zero blood alcohol concentration. However, it is only a breach of their conditions if they drive with a blood alcohol level greater than zero but less than 0.05. If they drive with a blood alcohol level greater than 0.05 they may be charged with both breaching their conditions and an offence of driving with the prescribed concentration of alcohol see driver's licences.

Prescribed concentration of alcohol where child aged under 16 present in vehicle

A person will be guilty of an offence if they drive, or attempt to drive, a motor vehicle with more than the 'prescribed concentration of alcohol' (PCA)in their blood, and while a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47B(1a)].

For this offence, the 'prescribed concentration of alcohol' is a level of 0.08 or above (category 2 or above).

A person charged with a PCA offence where a child aged under 16 years is also present in the vehicle is subject to the same penalties as if they were charged with the equivalent PCA offence pursuant to section 47B(1) of the Road Traffic Act 1961 (SA).

Prior to reapplying for their licence at the end of the disqualification period, they will also be required to undergo an alcohol dependency assessment to determine whether they are dependant on alcohol [see Motor Vehicles Act 1959 (SA) s 79B(1)]. See: Drug and Alcohol Dependency Assessment.

Refusing a breath test

Automatic licence disqualification

It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis when directed to do so by police [Road Traffic Act 1961 (SA) ss 47E and 47E(3a)]. Refusing a breath test results in an automatic licence disqualification. For further information on penalties see alcohol and drug penalties.

Police powers to test drivers

The police have expansive powers with which to stop and breath test drivers. The police may stop and breath test any person who they reasonably believe has:

  • driven; or
  • attempted to put a motor vehicle in motion; or
  • acted as a Qualified Supervised Driver for a holder of a permit or licence

In addition to these powers the police may stop and breath test any person who they reasonably believe while driving has:

  • been involved in an accident
  • committed a an offence of which driving is an element (that is offences created under Part 3 of the Road Traffic Act 1961(SA) and the Australian Road Rules, but not a parking offence)
  • behaved in a manner that indicates her or his ability to drive is impaired.

Note: Any request to submit to an alcotest or breath analysis cannot be commenced more than 8 hours after the conduct of the person giving grounds for the request has occurred.

Random breath testing stations

The police may also stop and test any driver of a motor vehicle that approaches a random breath testing station. Police powers to set up breath testing stations have been significantly expanded and a breath testing station can be established at any time an in the vicinity of any road.

Alcotesting

A person being tested will generally, particularly at a random breath testing station, be first required to blow into an alcotest - a small hand held unit that drivers usually blow into without leaving their vehicles. Alcotest units must comply with the requirements of the Road Traffic Act 1961 (SA) [s 47H].

Breath analysis machine

Alternatively, or if an alcotest shows that the prescribed concentration of alcohol may be present, the driver can be required to blow into a breath analysis machine — a more sophisticated apparatus that is carried in the boot of most police vehicles. The result indicated by the breath analysis is presumed to have been the person's blood alcohol level for the two hours immediately before the test. If the breath analysis indicates the prescribed concentration of alcohol, the police officer who conducted the test must tell the driver of her or his right to have a blood test taken.

Drivers must be advised of right to blood test

The courts have held that random breath testing procedures must be strictly complied with in order to support a prosecution for an offence of driving with a prescribed concentration of alcohol. Drivers charged with this offence should seek legal advice if they were not adequately advised of their rights to a blood test.

Refuse breath test when child aged under 16 years present in vehicle

It is an offence to refuse to exhale (blow) into the apparatus used for an alcotest or breath analysis test where a person has driven, or attempted to drive, a motor vehicle and a child aged under 16 years is present in the vehicle [see Road Traffic Act 1961 (SA) s 47E(3a)]. Refusing a breath test in these circumstances results in an automatic licence disqualification, and the driver will be required to undergo an alcohol dependency assessment prior to reapplying for their licence [Motor Vehicles Act 1959 (SA) s 79B(1)(c)(i)].

Alcohol, drugs and riding a bicycle

As a vehicle is defined in section 5 of the Road Traffic Act 1961 (SA) to include a bicycle, persons riding a bicycle can be charged with certain offences under this Act if the offence applies to vehicles.

A person riding a bicycle can be charged with 'driving' a bicycle or attempting to put a bicycle in motion while so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the bicycle [Road Traffic Act 1961 (SA) s 47(1)].

Maximum penalty: a fine of $500, and demerit points may also apply [s 47(1)(b)].

However some alcohol and drug driving offences only apply to motor vehicles- see section 5 of the Road Traffic Act 1961 (SA) for the definition of motor vehicle.

For more information on cyclist road rules and safety, see the Department of Planning, Transport and Infrastructure's booklet Cycling and the Law.

Defect Notices

Defect notices are issued under section 145 of the Road Traffic Act 1961(SA). A member of the Police or an inspector may examine a vehicle which they suspect on reasonable grounds to have deficiencies. The owner of the vehicle may be required to produce the vehicle for an examination at a specified place and time.

Vehicles of a prescribed class

If the vehicle is of a prescribed class (which under regulation 45 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) includes: prime movers; commercial motor vehicles; and trailers) the Police or an inspector can examine the vehicle whether or not there is reason to suspect deficiencies.

What is a defective vehicle?

A vehicle is considered defective if it:

  • does not comply with the vehicle’s standards, the Road Traffic (Light Vehicle Standards) Rules 2013 (SA);
  • has not been maintained in a condition that it can be driven or towed safely, if it would endanger the person driving/towing the vehicle, anyone else in or on the vehicle, or a vehicle attached to it or other road users.
  • does not have an emission control system fitted, or has an emission control system that has not been maintained.

Petrol power assisted bikes

Petrol power assisted bikes cannot be lawfully driven on South Australian roads. This means that a defect notice can be issued for such bikes. In addition, as they cannot be registered or insured, charges of driving unregistered and driving uninsured are likely to follow (see Unregistered and uninsured vehicles).

Written warnings

If on examination the vehicle is found to have deficiencies, but to the extent that further use on roads would not cause safety risk, then a formal written warning may be given. If the driver of the vehicle is not the registered owner, they must provide the warning to the registered owner of the vehicle [Road Traffic Act 1961 (SA) s 145(4b)].

Major and minor defect notices

If further road use would cause imminent and serious safety risks then a major defect notice is given; in any other case a minor defect notice is given. In either case the notice is to be given to the driver, the defect label is to be affixed to the vehicle, and a copy of the notice is sent to the Registrar of Motor Vehicles.

Information a defect notice must contain

The defect notice must state:

  • the date the notice is issued; and
  • the identity of the person who defected the vehicle; and
  • clearly identify the vehicle that is defected; and
  • state if it is a major or minor defect notice; and
  • provide details of the deficiencies and the necessary repairs required; and
  • the means by which the car is to be moved to get the repairs; and
  • that the vehicle is not to stand or be driven on a road or be sold or otherwise disposed of, until:
    • produced at specified place for examination;
    • a clearance certificate is issued by a member of the Police, an inspector or vehicle registration authority certifying that the repairs are done; and
    • the Police, inspector or vehicle authority caused the label to be defaced or removed from the vehicle; and
  • any other matters.

Offence to remove or deface defective label

A person must not deface, alter, obscure or remove a defective label otherwise they can incur either an expiation fee or a fine (see penalty summary).

Penalties for contravening defect notice

For driving, allowing the car to stand on the road, selling or otherwise disposing of a defected vehicle contrary to the terms of the defect notice the offender is liable to pay a fine of up to $1250 and gain 3 demerit points. However, it can be a defence that the vehicle was sold with reason to believe that it was not intended to be used on a road after the sale or disposal.

Driving Offences

There are many offences involving driving vehicles on public roads. The main legislative instruments that govern these offences are:

Many driving offences are dealt with by way of an expiation notice, the incursion of demerit points, and/or a fine. Whenever a person appears in court for a traffic offence, the court may also have the power to disqualify the person's licence or permit [see Road Traffic Act 1961 (SA) s 168], or issue a fine up to the maximum amount contained in the relevant legislation.

Many driving offences will be expiable, that is, you will receive an expiation notice for committing the offence.The expiation fee amounts that apply for these offences are contained in Schedule 4 of the Road Traffic (Miscellaneous) Regulations 2014 (SA).

The maximum fine that applies for offences under the Road Traffic Act 1961 (SA) will usually be specifically stated in the particular section of the Act which contains the offence. Where no penalty is stated, the penalty is a fine of up to $2500 [see Road Traffic Act 1961 (SA) s 164a].

The maximum fine that applies for offences under the Australian Road Rules is contained in section 67 of the Road Traffic (Road Rules- Ancillary and Miscellaneous Provisions) Regulations 2014 (SA).

It is not unusual for offences to carry both an expiation fee amount (which applies if the offence is expiated) and a maximum fine amount (which applies if the offence is not expiated).

In this section, all references are to the Road Traffic Act 1961 (SA) unless otherwise stated although some offences are contained in the Australian Road Rules (ARR) or in the Motor Vehicles Act 1959 (SA). As it is not possible to deal with every offence, only some of these laws are discussed in this section.

Further information is available from The Driver's Handbook online at the My Licence website, from newsagencies or from Service SA Customer Service Centres.

Answering police questions

There are a number of situations in relation to driving in which it is an offence not to truthfully answer questions asked by a police officer.

Must assist in identifying driver of a vehicle

A person must answer any question that would help to identify the driver of a motor vehicle [Motor Vehicles Act 1959 (SA) s 137(b)].

Producing licence when requested

A driver must produce their licence when requested by a police officer, either immediately or to a specified police station within 48 hours [Motor Vehicles Act 1959 (SA) s 96].

Direction to give name and other personal details

Any person who is involved in road transport at the time they are approached by police, including a driver, a vehicle owner or someone in charge of a vehicle, must, on request, provide police with their full name, date of birth, the address where they are living, their usual address and their business address [Road Traffic Act 1961(SA) s 40V].

Careless driving (driving without due care)

Elements of offence

It is an offence to drive without due care or attention or without reasonable consideration for others [Road Traffic Act 1961 (SA) s 45].

Negligence

A person who has been in any way negligent in the driving of a motor vehicle may be charged with this offence and it is often used in addition to another offence, where an admission has been made, or it appears the driver was careless. This is often the case where a driver has had a collision that is solely their fault (most notably running into a stationary object, such as a street sign or a parked car). If a driver pleads guilty to the other offence with which they have been charged it is likely that the police will agree to withdrawing the due care (also referred to as ‘careless driving’) offence.

Penalties

For a basic (non-aggravated) offence — a fine of up to $2500 and 3 demerit points [see Road Traffic Act 1961 (SA) s 164A and Motor Vehicles Regulations 2010 (SA) Sch 4 pt 1(1)].

For an aggravated* offence — a maximum of 12 months imprisonment and at least 6 months disqualification [Road Traffic Act 1961 (SA) s 45].

* An aggravated offence includes the following:

  • where death or serious harm is caused to another person
  • where the offence was committed in the course of attempting to escape a police pursuit
  • where the offender drove knowing that he/she was disqualified from driving
  • where the offender had a blood alcohol level of 0.08 or greater at the time of the offence
  • where the offender was driving at excessive speed [s 45A] or driving under the influence [s 47]

Causing death or harm by dangerous driving

Elements of the offence

Any person who drives a motor vehicle in a negligent or reckless manner, at high speed, or in a manner that is dangerous to any person and as a result of that behaviour causes death or harm to another is guilty of an offence [Criminal Law Consolidation Act 1935 s 19A].

Penalties

Penalties for this offence are very harsh and even a first offence can carry a maximum sentence of 15 years imprisonment. If the offence is found to be an aggravated offence* it can carry a term of life imprisonment. The penalty for this offence will also involve a disqualification of at least 10 years, or possibly longer, if a court orders.

Even where a death or serious harm is not caused to any person it is possible to receive a penalty of up to 5 years imprisonment and a disqualification of at least 1 year.

* An aggravated offence is an offence committed under the following circumstances:

  • the person committed the offence in the course of attempting to escape pursuit by a police officer
  • the person was, at the time of the offence, driving a vehicle in a street race
  • the person was, at the time of the offence, driving a vehicle knowing that he or she was disqualified from holding a driver’s licence or his or her licence was suspended
  • the person committed the offence as part of a prolonged, persistent and deliberate course of bad driving
  • the person committed the offence while there was present in his or her blood a blood alcohol level of 0.08 grams or more of alcohol in 100 millilitres of blood
  • the person was, at the time of the offence, driving a vehicle in contravention of s 45A (excessive speed), 47 (driving under the influence) or 47BA (driving with a prescribed drug in oral fluid or blood) of the Road Traffic Act 1961

Cycling

Road rules for cyclists

Generally, as a bicycle is defined as a vehicle [Road Traffic Act 1961(SA) s 5], cyclists are subject to the same basic road rules as drivers of motor vehicles but with some important exceptions, such as they must wear an approved bicycle helmet [Australian Road Rules rule 256]. Cyclists must keep as close as reasonably practicable to the left-hand side of the road or bikeway except when making, or about to make, a right hand turn or where the road is divided into lanes. If it is safe, cyclists are permitted to pass vehicles on the left in the lane unless the vehicle is indicating and turning left [Australian Road Rules rule 141].

Bicycles are exempt from requirements to be registered or insured. This includes electric power-assisted bicycles with a motor that produces no more than 200 watts and Pedalecs (with a motor capacity of up to 250 watts). In order to qualify as bicycles they must have a clear label identifying them as complying with the nationally accepted standards for electric bicycles (which is: EN15194).

However, other power-assisted bicycles, in particular, petrol-powered bicycles, are subject to the same requirements as motor vehicles. Riding petrol-powered bikes is illegal on South Australian roads and charges such as drive unregistered/drive uninsured and even drive disqualified can follow.

Riding abreast

Cyclists can ride two abreast on a carriageway, but any more than two is an offence.

Riding on footpaths

As of 25 October 2015 cyclists of all ages are allowed to ride on footpaths.

Shared facilities for both pedestrians and cyclists called "shared paths" are designated by signs or line marking. Cyclists riding a footpath or shared path must keep left unless it is impractical to do so [Australian Road Rules rule 250(2)].

Box right hand turns

Cyclists can make a "box right hand turn" by crossing an intersection on the left side and waiting on the opposite corner for a break in the traffic before proceeding along the road into which the turn is to be make. Just as drivers must keep their hands on a steering wheel, cyclists must keep at least one hand on the handlebars at all times [Australian Road Rules rule 245] and they must signal when turning right [Australian Road Rules rule 48].

Other restrictions

Cyclists are also subject to other restrictions. It is illegal to hold on to a moving vehicle [Australian Road Rules rule 254] or to ride for more than 200 metres within two metres of a motor vehicle [Australian Road Rules rule 255].

The old practice of "donkeying" (carrying another person on the bike, such as on the handle bars) is also against the law unless the bicycle is equipped to carry passengers [Australian Road Rules rule 246].

Cyclists can also be charged for riding under the influence of alcohol or drugs and face a fine up to $300 if convicted [Road Traffic Act 1961 (SA) s 47].

Penalties

The penalties for any breach are a maximum fine of $1250 but most cycling offences can attract an expiation notice as an alternative to court ranging from $18 to $46 depending on the offence. See penalty summary.

Keeping a sufficient distance when passing bicycle

From 25 October 2015 it is an offence to fail to keep a sufficient distance when overtaking a cyclist [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 11A].

A "sufficient distance" is defined as the lateral distance between the bicycle and a car, that is, the distance between the furthermost point to the right of the bicycle and the furthermost point to the left of the driver’s vehicle (including any projection from the vehicle).

When travelling at speeds 60 km/h and under this is a distance of at least one metre and a distance of 1.5 metres when travelling over 60 km/h.

There is an exemption from certain rules in relation to overtaking if it is necessary in order to comply with regulation 11A. For example, if a driver is driving on a road with a dividing line they may drive to the right of the dividing line provided they have a clear view of any approaching traffic and can do so safely [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA)reg 11B ].

Maximum penalty: $2500

Dangerous driving

Elements of the offence

A lesser offence to causing death or injury is driving in a reckless manner or at a speed or a manner which is dangerous to any person [Road Traffic Act 1961 (SA) s 46(1)]. A person may be charged with this offence even in situations where no one is injured and it is quite a common offence when drivers are caught driving at high speeds. Charges may be laid even if the driving posed no danger to any other road user (member of the public), but only to the driver him or herself: Senior v R[2005] SASC 88, BC200500978.

What is dangerous driving?

Whether or not driving is dangerous depends on many factors, for example the time of day, whether other cars or people were about, any roads which may intersect with the road the defendant is travelling on, the condition of the road and whether the driver had been drinking as well as other relevant circumstances, such as the condition of the vehicle and whether the brakes or the tyres were defective - especially if the vehicle was travelling at high speed.

Penalty

The penalty for the offence is a maximum two years' imprisonment. In addition, the court must order a disqualification period of at least 12 months for a first offence or at least three years for a subsequent offence. A subsequent offence is an offence committed within five years of a previous similar offence.

Dangerous driving to escape police

Elements of the offence

Under s 19AC of the Criminal Law Consolidation Act 1935 (SA) it is an offence to drive a motor vehicle negligently, recklessly or at a speed or in a manner that is dangerous to any person in order to escape pursuit by a police officer or to cause a police officer to engage in a pursuit.

Penalties

A non-aggravated offence can carry a term of imprisonment of up to 3 years and an aggravated offence* can result in a penalty of up to 5 years imprisonment.

* An aggravated offence in this instance means that at the time the offence was committed the driver:

  • was driving or using a motor vehicle that was stolen or being driven without the consent of the owner of the vehicle and the driver knew or was reckless about this
  • was driving a motor vehicle knowing that he or she was disqualified from holding or obtaining a driver’s licence or that his or her licence was suspended
  • was driving with a blood alcohol concentration of 0.08 grams of alcohol in 100 millilitres of blood
  • was driving a motor vehicle in contravention of s 47 (driving under the influence) or 47AB (driving with a prescribed drug in oral fluid or blood) of the Road Traffic Act 1961 (SA)

Driving while disqualified

Penalty

A person who is found guilty of driving a motor vehicle while disqualified from holding or obtaining a driver's licence or while the person's licence is suspended, may be gaoled for up to six months (2 years for a subsequent offence) [Motor Vehicles Act 1959 (SA) s 91(5)].

Imprisonment

The Supreme Court has frequently emphasised that the ordinary punishment for driving while disqualified must be imprisonment however, the court retains a discretion to suspend the sentence, but only in exceptional circumstances.

The Full Supreme Court (Police v Trevor Harold Cadd, John Patrick Hall, Attila Tibor Illes, Vasilios Vlachos and Mark Adrian Quinn(1997) Judgement No. 618, Mullighan J), held that the punishment should be imprisonment:

“in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...".

Circumstances to be taken into consideration:

  • whether there were exceptional reasons for the offence
  • the previous good character of the offender
  • the likelihood of the offender responding to a final warning (given by means of a suspended sentence)
  • the community interest in rehabilitation without imprisonment
  • the traditional reluctance to imprison an offender for the first time
  • the consequences of imprisonment for an offender and the offender's family (where relevant), and
  • other relevant matters

All these factors require careful consideration under section 96 of the Sentencing Act 2017 (SA).

The issue of whether a term of imprisonment in relation to a drive disqualified offence should have been suspended was addressed in Mill v Police [2007] SASC 253. Although the magistrate’s decision to imprison Mr Mill was overturned on appeal the decision clearly shows that most cases of driving whilst disqualified will satisfy the definition of ‘contumacious’ offending (wilfully disobedient) resulting in a term of imprisonment.

Guide to likely terms of imprisonment

As a guide, an unsuspended term of imprisonment may range from 10 days to one month depending on the circumstances. It may be longer where aggravating factors are alleged, such as a high blood alcohol reading, reckless driving, a prior offending record which suggests long-term contempt for road traffic laws, or where the offence occurred very soon after the disqualification. The gaol term is significantly more severe for a subsequent offence.

No further period of disqualification imposed by courts

As a matter of custom, courts do not normally impose a further period of disqualification for an offence of driving whilst disqualified. The gravity of a sentence of imprisonment is generally held to be sufficient penalty (see Saddler v Crossman (1988) 142 LSJS 337, von Doussa J).

No distinction between disqualification imposed by courts and disqualification by Registrar of Motor Vehicles

Strictly speaking there is no difference between a disqualification ordered by a court (eg for a drink-driving or other traffic offence or for an illegal use/interference offence) and a disqualification ordered by the Registrar of Motor Vehicles (eg under the points demerit system). Magistrates are required to take the view that Parliament has provided that a substantial sanction be imposed for disobedience to those orders (Crook v Roberts (1990) 53 SASR 236; Maione v Higgins(unreported) Supreme Court, Olsson J. 1 February 1991, Judgment No. 2698).

No distinction between suspension of licence for failure to pay fines and suspension as penalty for offending

Section 91 of the Motor Vehicles Act 1959 (SA) now makes no distinction between a suspension triggered by non-payment of fines and one that is a penalty for an offence. A person driving a vehicle whilst his/her licence is suspended or disqualified (regardless of the reason they have been suspended/disqualified) faces a maximum penalty of imprisonment for 6 months for a first offence and imprisonment of up to 2 years for a subsequent offence [s 91(5)].

Riding petrol-assisted bikes

Drivers disqualified due to drink driving can be charged with driving disqualified if they are found riding a petrol-assisted bike. Unlike ordinary bicycles, or even pedal power-assisted (i.e. electric) bikes, petrol-assisted bikes cannot be legally driven on South Australian roads (see Cyclists).

Driving without a licence

Under section 74 of the Motor Vehicles Act 1959 (SA) , it is an offence to drive a motor vehicle on a road without a valid licence.

Penalty - if previously authorised to drive

Where a driver is caught driving without a valid licence but has previously been authorised to drive a vehicle of the relevant class on a road, the maximum penalty is $1250.

In this section, "authorised to drive a motor vehicle of a particular class on a road" means:

  1. the person holds a licence authorising him/her to drive a vehicle of that class;
  2. the person holds a licence for a different class, and has sufficient driving experience for the grant of a licence authorising him/her to drive a vehicle of that class; or
  3. the person holds a learner's permit.

The authorisation may be under the law of any Australian State or Territory.

See Motor Vehicles Act 1959 (SA) s 74(1).

Penalty - if never been authorised to drive

If a driver is caught driving without a valid licence and where they have never been authorised to drive a vehicle of that class, the maximum penalty is $2500 [Motor Vehicles Act 1959 (SA) s 74(2)]. But if the driver has never been authorised and is convicted of driving without a licence a second or subsequent time within 3 years of an earlier offence of:

  1. driving without ever having been authorised; or
  2. driving while disqualified

there is a mandatory minimum 3 year licence disqualification, in addition to a maximum penalty of $5000 or imprisonment for 1 year [Motor Vehicles Act 1959 (SA) s 74(5)].

Penalty - if not authorised to drive following a serious drink driving offence

Where a driver has committed a serious drink drive offence, serves a period of disqualification and then drives without renewing their licence, they will be subject to the maximum penalty for driving unlicensed i.e. $5000 or imprisonment for 1 year, as well as the mandatory minimum 3 year licence disqualification [Motor Vehicles Act 1959 (SA) s 74(2a)].

A serious drink driving offence includes any drink driving offence other than a category one offence, or a category two offence that is also a first offence - see Motor Vehicles Act 1959 (SA) s 81E for definition.

Penalty - if not authorised to drive following certain drink or drug driving offences

If a driver has been disqualified for certain drink or drug driving offences, and drives without first reapplying for their licence at the end of the disqualification period, they will face a maximum penalty of a fine of $5000 or imprisonment for 1 year [see Motor Vehicles Act 1959 (SA) ss 74(2ab) and 74(2ac)].

This applies in one of the following circumstances where the offence for which the person was disqualified for:

  • was a drink or drug driving offence where a child aged under 16 was also present in the vehicle [see Road Traffic Act 1961 (SA) ss 47(a), 47(1a), 47B(1a), 47BA(1a), 47EAA(9a), 47I(7)] ; OR
  • was a prescribed drink driving offence (i.e. anything other than a Category 1 PCA offence), and they have been convicted of at least 1 other prescribed drink driving offence OR have been convicted of, or expiated, at least 2 other drink driving offences committed within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 74(2ab)(c)(ii)]; OR
  • was a drink driving offence and they have been convicted of, or expiated, at least 2 other drink driving offences committed within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 74(2ab)(c)(iii)]; OR
  • was a drug driving offence and they have been convicted of, or expiated, at least 1 other drug driving offence within the preceding 5 years before the commission of the disqualifying offence [see Motor Vehicles Act 1959 (SA) s 74 (2ac)(c)(ii)].

Where a driver is convicted of an offence pursuant to section 74(2ab) or 74(2ac), and where the maximum penalty is a fine of $5000 or imprisonment for 1 year, they will also be liable to serve a mandatory 3 year licence disqualification [see Motor Vehicles Act 1959 (SA) s 74(5)(a)]. This disqualification period cannot be reduced or mitigated in any way [see Motor Vehicles Act 1959 (SA) s 74(5)(b)].

Emitting excessive noise from a vehicle

Elements of the offence

Police officers have the power under section 54 of the Summary Offences Act 1953 (SA) to require vehicles to stop if they are emitting excessive noise by amplified sound equipment or other devices. Noise emitted from a vehicle is deemed to be ‘excessive’ if it is likely to unreasonably disturb persons in the vicinity of the vehicle. Unless there is proof to the contrary, evidence by a police officer that he or she formed the opinion based on his or her senses that the noise was likely to unreasonably disturb persons in the vicinity constitutes proof that the noise was excessive [Summary Offences Act 1953 (SA) s 54(8)].

Drivers must give name and address if requested

Where excessive noise is emitted from a vehicle, police can require the driver and any other occupant of the vehicle to state their full name and address, and to provide evidence of their address if there are reasonable grounds to suspect that the name or address provided are false [Summary Offences Act 1953 (SA) ss 54(1)(b) and 54(4)].

Written warnings

Drivers of vehicles emitting excessive noise from amplified sound equipment or other devices may be given a written direction obliging them to immediately turn off the device. This is effectively a warning. Drivers who refuse or fail to comply with the written direction are guilty of an offence punishable by a fine of up to $1250 [Summary Offences Act 1953 (SA) s 54(6)].

Offences committed within 6 months of written warning

The police officer who issues the direction must advise the person that, during the period of 6 months after the issue of the direction, it is an offence to cause or allow excessive noise to be emitted from a vehicle driven or otherwise occupied by the person by amplified sound equipment or other devices. This means that a person who has been issued with a warning and who drives or occupies a vehicle emitting excessive noise within 6 months of receiving the warning commits an offence, also punishable by a maximum fine of $1250 [Summary Offences Act 1953 (SA) s 54(7)].

Other offences

It is also an offence to:

  1. refuse or fail to stop if required by a police officer under this section;
  2. refuse or fail to supply name and address;
  3. refuse or fail to supply evidence of name and address if requested to do so;
  4. state a false name or address;
  5. produce false evidence of name or address.

These offences are punishable by a fine of up to $1250 or imprisonment for 6 months [see Summary Offences Act 1953 (SA) s 54(5)].

Police powers to impound

Police officers may also have the power to seize and impound a motor vehicle emitting excessive noise [see Clamping, impounding, seizure and forfeiture offences].

Excessive speed

Elements of the offence

The offence of driving at excessive speed exists under s 45A of Road Traffic Act 1961(SA). The offence occurs when a driver exceeds the speed limit by 45 kilometres an hour or more.

Penalties

This offence can be expiated.

Service of an expiation notice will attract a disqualification notice under s 45B Road Traffic Act 1961 (SA). The disqualification notice has the effect of suspending a person’s licence. Under s 45B police have the power to impose licence disqualification or suspension by issuing such a notice. The suspension operates for a period of 6 months, commencing:

  • if the notice is given to a person who has been given an expiation notice for an offence under s 45A, 24 hours after the person is given the notice
  • if the notice is given to a person who has been given an expiation notice for an offence against s 79B, 28 days after the person is given notice or, if the person is already suspended or disqualified at that time, at the end of that period of suspension or disqualification

If a court convicts a person the penalty will be:

  • For a first offence, a fine of not less than $1 100 and not more than $1 500 and disqualification for a minimum of 6 months;
  • For a second or subsequent offence, a fine of not less than $1 200 and not more than $1 700 and disqualification for a minimum of 2 years

Previous convictions counted if within 5 years

In determining whether an offence is a first or subsequent offence, a previous conviction or expiation for an offence against sections 45A or 46 (reckless and dangerous driving) will be counted if committed within 5 years of the offence in question.

Excessive speed and road works

Where speed limit signs are placed on a road in relation to road works these will not be of any effect for the purposes of section 45A unless workers are either engaged at the road works site, or the area of road affected by the road works involves a greater than normal level of hazard [Road Traffic Act 1961 (SA) s 20(11)(b)]. This means that, if the usual speed limit is 50 km/h but signs are placed near road works on that length of road indicating a speed limit of 40 km/h past the road works, then a person travelling at 90 km/h on that length of road will not be guilty of the offence of excessive speed unless workers are engaged at the site or the site presents a greater than normal hazard. Workers will be taken to be engaged at the site if they are present in the area, or if they have been temporarily absent from the area for a period not exceeding two hours [Road Traffic Act 1961 (SA) s 20(15)]. Even if section 45A does not apply, however, if a driver has exceeded the normal speed limit they may still be guilty of the normal speeding offence against the Australian Road Rules.

Give way

Generally drivers are required to give way to their right. However, there are many additional give way requirements such as: at intersections or crossings; when in slip lanes or moving away from the edge of the road; and to certain vehicles such as buses and emergency vehicles.

Most provisions are contained in Part 7 of the Australian Road Rules which contain detailed descriptions of a driver's obligations including extensive use of explanatory diagrams.

Misuse of a motor vehicle

Elements of the offence

A person misuses a motor vehicle if the person —

  1. operates a motor vehicle so as to produce sustained wheel spin; or
  2. drives a motor vehicle so as to cause engine or tyre noise, or both, that is likely to disturb persons residing or working in the vicinity; or
  3. drives a motor vehicle onto an area of park or garden or other road related area so as to break up the ground surface or cause other damage.

[see Road Traffic Act 1961 (SA) s 44B].

Unless it is done with the consent of the owner, occupier or person in control of the place, misuse of a motor vehicle is an offence. This offence may include conduct such as drag racing, “wheelies” and so on. The provisions that deal with these offences and that of emitting excessive noise from a motor vehicle are often referred to as 'hoon' laws.

Penalties

A person who is found guilty of the offence is punishable by a fine of up to $2500 [s 164(A)(2) Road Traffic Act 1961 (SA)]. In addition the offence also carries a penalty of 4 demerit points [Motor Vehicles Regulations 2010 (SA) Sch 4 Part 2].

Compensation for damage

Persons found guilty of this offence will also be ordered by the Court to pay compensation for any damage caused to property [Road Traffic Act 1961 (SA) s44B(5)].

Police powers to impound vehicles

Police officers also have the power to seize and impound a motor vehicle involved in the commission of the offence [see Clamping, impounding, seizure and forfeiture offences].

Mobile phones

Under rule 300 of the Australian Road Rules it is an offence to use a hand-held telephone when driving, other than when parked. This means that a driver is not permitted to use a mobile telephone even when stationary at traffic lights.

'Use' is defined very broadly by the Road Rules. It includes:

  • holding a phone, whether or not engaged in a phone call [an exception is allowed for where a driver is in the process of handing the phone to a passenger in the vehicle]; or
  • entering or placing, other than by voice, anything into the phone (e.g. text messaging); or
  • sending or looking at anything on the phone; or
  • turning the phone on or off and operating any other function of the phone.

Only those drivers with phones which can be used remotely (e.g. via Bluetooth) or which are mounted in a proper device that enables calls to be made or received without holding the phone can make or receive an audio phone call whilst driving.

An audio phone call does not include an email, text message, video call or video message. This means that creating, viewing or sending of text or video messages is prohibited, even by remotely accessed phones. However, automatic receipt of communications by the phone itself are excluded.

A mobile phone may be used as a driver’s aid but only if the body of the phone is secured in a mounting affixed to the vehicle while in use and the use of the phone must not require the driver to press or manipulate any part of the phone.

Learner permit and provisional (P1) drivers are prohibited from using any type of mobile phone technology whilst driving. The ban includes:

  • hands free mode (for example, Bluetooth)
  • loud speaker operation
  • text messaging

It is still legal for a learner or P1 driver to make or receive calls if the car is safely parked. This does not include being stationary in a traffic queue or at traffic lights.

Penalty - see penalty summary

Motorised scooters

Whilst toy electric or motorised scooters are readily available in stores and marketed as requiring no registration, they cannot be legally driven on South Australian roads.

Some of the scooters available for purchase can travel at speeds of up to 24 kilometres an hour. In South Australia electric scooters are defined as motor bikes and as such must be registered to be driven on South Australian roads. However, it is not possible to register scooters in South Austalia as they do not comply with the relevant Australian Design Rules. As a result, using motorised scooters on a public road can result in charges of driving an unregistered vehicle.

Offences and Duties after Accidents

Failure to comply with duties after an accident

The driver of every vehicle involved in an accident must [Australian Road Rules reg 287(2)]:

  • Stop at the scene of the accident
  • Give their details including their name and address, the name and address of the vehicle’s owner, and the vehicle's registration number (or any other information necessary to identify the vehicle) to any other driver involved, any person injured (or their representative) or the owner of any property that has been damaged.

If any of the following circumstances apply, the driver must also report these details to police as soon as possible within 24 hours [reg 287(3)]:

  • If anyone is injured or killed in the accident
  • If you have not given your details to each person as above
  • If you have not been given the details of the other driver
  • If a vehicle is towed or carried away by another vehicle
  • If a fair estimate of the cost of repairing damage to property (other than to your own vehicle or property) is $3000 or more [see Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 39]

A driver must also remove any debris from the road or take action to have them removed as soon as can be done safely after an accident [see Australian Road Rules reg 293].

Elements of the offence and penalty

Failure to comply with these duties is an offence and in relation to accidents where no-one is injured or killed the penalty is a fine of up to $2 500 [see Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 67].

Police can require the drivers to give details of the day, time and place of the crash, details of the vehicle/s involved, details of other drivers, passengers, pedestrians involved, witnesses, and details of any injuries and damage resulting from the crash. Police can ask about vehicle speeds and positions before and at the time of impact, but if you think this information may incriminate you, you do not have to answer. See CRIMINAL AND TRAFFIC OFFENCES, Driving Offences, Answering police questions about what questions you must answer and ARREST, YOUR RIGHTS AND BAIL, Arrest and Questioning for further information.

If someone is injured or killed then the driver of every vehicle involved in an accident must [Road Traffic Act 1961 (SA) s 43(1)]:

  • stop immediately at the scene of the accident
  • immediately give all possible assistance
  • within 90 minutes of the accident, present themselves to a police officer to give particulars of the accident and submit to any test for alcohol or drugs

Elements of the offence and penalty

Failure to comply with these duties is an offence and the penalty is imprisonment of up to five years and license disqualification for at least one year [see Road Traffic Act 1961 (SA) s 43(1)]

Defences

It is a defence to this charge if the driver was reasonably unaware that the accident had occurred [see s 43(3)(a)]. It is also a defence if the driver genuinely and reasonably believed that to comply would endanger them physically and they notified the police, ambulance or another authority at the earliest opportunity [see s 43(3)(b)].

In relation to failure to comply with the duty to present to a police officer, it is a defence if the driver has a reasonable excuse for failing to comply and they still presented themselves as soon as possible after the accident [ see s 43(3)(c)].

Failure to comply with duties where the accident involved injury or death

Elements of the offence

It is an offence to fail to comply with your duties as a driver involved in an accident [under the Road Traffic Act 1961 (SA) s 43 (see above)] where another person has been injured or killed as a result of driving without due care or attention [see Criminal Law Consolidation Act 1935 (SA) s 19AB]

Penalty - fatal accidents

Where the accident has resulted in death, the penalty for the first offence is imprisonment of up to 15 years and licence disqualification for at least 10 years. Subsequent offences carry a penalty of up to life imprisonment and licence disqualification of at least 10 years.

Penalty - non-fatal accidents

Where the accident has resulted in serious harm, the penalty for a first offence is imprisonment of up to 15 years and a licence disqualification of at least 10 years. For subsequent offences the penalty is imprisonment up to life and licence disqualification for at least 10 years.

Where the accident has resulted in physical harm but not serious harm, the penalty for a first offence is a term of imprisonment of up to 5 years and licence disqualification for at least one year. For subsequent offences the penalty is imprisonment up to seven years and licence disqualification for at least three years.

For a definition of "serious harm" see s 21 and for "subsequent offence" see s 19AB(4).

Reckless driving causing injury or death

Because the thoughtless commission of a serious driving offence can result in an otherwise responsible person being sent to prison, juries (and even judges) are sometimes inclined to sympathise with the offender and vote for complete acquittal. To provide an alternative to this unsatisfactory solution a jury may find an offender not guilty of the offence charged but guilty of a specified lesser offence. In the case of a person charged with murder or manslaughter resulting from irresponsible driving, the lesser offence may be causing death by reckless driving.

Elements of the offence

To be guilty of this offence the person must have driven the motor vehicle in a culpably negligent manner, recklessly or at a speed or in a manner that was dangerous to any person who may have been present. As with manslaughter, a very high degree of negligence is needed. A momentary lack of attention in the person's driving would rarely be sufficient.

Penalties - death or grievous injury

For a first offence of causing death or grievous injury by reckless driving the penalty is imprisonment for a maximum of ten years and licence disqualification for a minimum of five years. The penalty for a subsequent offence is imprisonment for up to fifteen years and licence disqualification for a minimum of ten years [Criminal Law Consolidation Act 1935 (SA) s 19A(1)]. As is the case with any minimum period of licence disqualification for an indictable offence under the Criminal Law Consolidation Act 1935 (SA) the court can increase the period of disqualification as it thinks fit.

Penalties - injury (not grievous)

Where injury (but not grievous injury) is caused, the penalty for a first offence is imprisonment for a maximum of four years and licence disqualification for a minimum of one year. For a subsequent offence the penalty is imprisonment for up to six years and disqualification for not less than three years [Criminal Law Consolidation Act 1935 (SA) s 19A(3)]. Where the offence causing an injury was committed by using a vehicle other than a motor vehicle, or an animal, the penalty is imprisonment for up to two years.

Lesser offence

A lesser offence to causing death or injury is driving in a reckless manner or at a speed or a manner which is dangerous to any person [Road Traffic Act 1961 (SA) s 46(1)], See Dangerous Driving.

Seatbelts and child restraints

Seatbelts

The driver of a vehicle fitted with an approved seatbelt must wear it properly adjusted and fastened [see Australian Road Rules r 264].

A passenger (over the age of 16 years) of a vehicle must wear an approved seatbelt properly adjusted and fastened [r 265(1)].

The driver of a vehicle must also ensure that each passenger wears an approved seatbelt properly adjusted and fastened or is restrained in a suitable, properly fastened and adjusted approved child restraint as set out below [rr 265(3) and 266(1)].

Child restraints

Children less than six months old must be restrained in a suitable and properly fastened and adjusted rearward-facing approved child restraint [r 266(2)].

Children aged six months to four years must be restrained in a suitable and properly fastened and adjusted approved rearward-facing or forward-facing (with in-built harness) child restraint [r 266(2A)].

Children aged four to seven years must be restrained in either a suitable and properly fastened and adjusted approved forward-facing (with in-built harness) child restraint; a properly positioned approved booster seat with seat belt properly adjusted and fastened; or if seated in a part of the vehicle primarily designed for the carraige of goods, by lap and sash seatbelt properly fastened and adjusted or lap seatbelt properly fastened and adjusted and approved safety harness properly fastened and adjusted [r 266 (2B)].

There is an exemption from the requirements in subrules 266(2), 266(2A) and 266(2B) if the driver is carrying a medical certificate stating that the child not be restrained in the ways required by the subrules because of a medical condition or disability. The child must then be properly restrained in a child restraint that has been designed for a passenger or person with the same medical condition or disability as the child. The exemption will only apply if the driver immediately produces the medical certificate when requested by a police officer or authorised person [r 266(2D)].

Children over seven years must be restrained in a suitable and properly fastened and adjusted approved child restraint or wear an approved seatbelt that is properly adjusted and fastened [r 266(4)].

For more information about choosing a suitable approved child restraint see the South Australian Government's website (click here).

Position of children in the vehicle

Children under four years must not sit in a front seat of a vehicle which has back seats [r 266(3)].

Children aged over four but under seven years must not sit in a front seat of a vehicle which has back seats, unless all of the back seats are already taken by children also under the age of seven [r 266(3A)].

An exemption applies if the driver is carrying a medical certificate that states that the child should travel in the front row of the vehicle due to a medical condition. However, the exemption will only apply if the driver is able to immediately produce the medical certificate to a police officer or authorised person when requested [r 266(3B),(3C)].

Children traveling in public minibus or taxi

The driver of a public mini bus or taxi is exempt from ensuring that children are restrained in approved child restraints as per Australian Road Rules rr 266(2), (2A) and (2B) if there is none available 266(5)(a) and the child sits in a back seat [r 266(5)(b)]. However, the driver must ensure children aged over one year but under seven years wear an approved seatbelt [r 266(5A)].

Exemptions

There are a number of exemptions to the rules in relation to the wearing of seatbelts and child restraints in rule 267 of the Australian Road Rules. For example, seatbelts do not have to be worn by people if their doctor has issued a certificate (valid for up to one year) stating that they should not wear a seatbelt due to their medical condition. The person must have the letter with her or him, or an approved seatbelt must be worn [Australian Road Rules rr 267(3A) and (4)].

There is also an exemption for people in South Australia if their doctor has issued a certificate stating that they are not required to wear a setbelt (for a set period or indefinitely) due to a physical disability or any other medical ground [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 37(2)]. An exemption also exists for historic vehicles registered under section 25 of the Motor Vehicles Act 1959 (SA) and being driven in accordance with the conditions of that registration [Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 37(1)].

Speeding

Default speed limits

A speed limit sign often indicates the speed limit [Australian Road Rules r 20] or if there are no signs, the default speed limit applies. In a built-up area the default speed limit is 50 kph or outside of built-up areas, 100 kph [Australian Road Rules r 25].

Speed limits applying to classes of vehicles

There are also some special speed limits applying to certain classes of vehicles, for example buses exceeding 5 tonne gross vehicle mass (GVM) and vehicles exceeding 12 tonne GVM must not exceed 100 kph.

Speed limit when passing an emergency service speed zone

From 1 September 2014 drivers must also slow down and drive at a safe speed, and in any case no greater than 25 km/h when passing an emergency service speed zone.

An emergency service speed zone is an area of road in the immediate vicinity of an emergency vehicle that has stopped and is displaying a flashing blue or red light, or between 2 sets of flashing blue or red lights on a length of road on which an emergency vehicle has stopped [Road Traffic Act 1961 (SA) s 83].

The speed restriction does not apply where a person is driving on a road that is divided by a median strip and the emergency service speed zone is on the other side of the road.

Drivers are required to be alert and responsive to such situations as the speed restriction applies in any case where a police patrol car’s red and blue lights have been activated. This includes, for instance, where a driver has been pulled over by police for speeding on a freeway and the patrol car’s red and blue lights are flashing, even though this is not technically an emergency.

Drivers of emergency vehicles such as police and emergency workers are exempt from these provisions. The definition of an "emergency worker" includes members of the armed forces, the Australian Federal Police and the Australian Border Force.

Penalty

The maximum penalty for any of the speeding offences described above is a fine of up to $2500 [Road Traffic Act 1961 (SA) s 164A].

Further offence of dangerous driving

Drivers who excessively speed may also be charged with an offence of dangerous driving [Road Traffic Act 1961(SA) s 46], see Dangerous driving.

Proof of speeding

Police will generally seek to prove a speeding offence through use of radar, laser devices, speed cameras or through the observation of a police officer. Speed cameras must be set up and photographs processed in accordance with the Road Traffic (Miscellaneous) Regulations 2014 (SA) [regs 32-36]. There are also provisions to allow better detection of speeding on rural highways through the use of average speed evidence [Road Traffic Act 1961 ss 79B, 175A]. Average speed evidence is calculated by measuring the speed of a vehicle between two separate speed camera locations rather than at a single point. Average speed camera locations can be situated from 14 to 50 km apart.

An expiation notice will be sent to the registered operator of the motor vehicle who must be given the opportunity to view the photograph and if she or he is not the driver, can complete a declaration nominating the actual driver. These photographs can be viewed online at: https://expiationphoto.police.sa.gov.au/ .

Other devices used to measure speed must be approved and also properly calibrated. A driver may be able to defend an offence if the police did not comply with any of these procedures, legal advice should be sought in these circumstances.

Road Works

Expiation notices may be issued for speeding where a driver exceeds the speed limit of a temporary traffic control sign, such as those used in areas of road works. Where reduced speed limit signs are placed on a road in relation to road works, the speed limit signs are of no effect during any period where workers are not engaged at the road works site, and the area of road affected by the road works does not involve a greater than normal level of hazard [Road Traffic Act 1961 (SA) s 20(11)(b)]. This means that, if the usual speed limit is 50 km/h but signs are placed near road works on that length of road indicating a speed limit of 40 km/h past the road works, then a person travelling at 60 km/h on that length of road will not be fined for exceeding the speed limit by 20 km/h, unless workers are engaged at the site or the site presents a greater than normal hazard. Workers will be taken to be engaged at the site if they are physically present in the area, or if they have been temporarily absent from the area for a period not exceeding two hours [Road Traffic Act 1961 (SA) s 20(15)]. Even if the driver is not fined for exceeding the speed limit by 20 km/h, they may still may still be guilty of exceeding the speeding limit by 10 km/h (as they drove 60 km/h and the usual limit is 50 km/h) and may be fined accordingly.

Street Racing

Participating in a street race, or in preparations for a proposed street race, is an offence [s 19AD Criminal Law Consolidation Act 1935 (SA)].

A street race includes any or all of the following when conducted on a road or a road-related area:

  • a race between 2 or more motor vehicles (whether the race is a drag race or otherwise, and whether the race is over a predetermined or indeterminate course)
  • a trial to determine how quickly a motor vehicle can cover the distance between 2 points
  • a competition between, or display involving, 2 or more motor vehicles consisting of or including the production of sustained wheel spin
  • a trial of a motor vehicle's speed or performance, or of a driver's skill.

Elements of the Offence

A person participates in a street race, or in preparations for a proposed street race, if the person:

  • drives a motor vehicle in the street race; or
  • promotes*, or assists in the promotion of, the street race or proposed street race in any way; or
  • engages in any other conduct that assists, or is intended to assist, in the street race or proposed street race taking place.

A person may be found guilty of an offence relating to a proposed street race whether or not the street race took place.

*Promoting a street race includes:

  • organising or conducting the street race; or
  • offering an inducement to another person to participate in the street race.

Penalties

For a first offence that is a basic offence:

Imprisonment for 3 years and disqualification from holding or obtaining a driver's licence for 1 year or such longer period as the court orders.

For a first offence that is an aggravated offence:

Imprisonment for 5 years and disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders.

An aggravated offence of street racing is where the offender:

  • knew they were driving the motor vehicle in circumstances of heightened risk
  • committed the offence knowing there were 1 or more passengers in or on the motor vehicle
  • knew, or ought reasonably to have known, they were driving a motor vehicle that had a major defect (that is, where use of the motor vehicle constitutes a serious risk to the safety of any person).

Circumstances of heightened risk, in relation to the driving of a motor vehicle, means:

  • driving between sunset on one day and sunrise on the next day
  • driving in circumstances where traction between the vehicle and the surface being driven on is adversely affected
  • driving in circumstances where visibility is adversely affected.

For any subsequent offence:

imprisonment for 5 years and disqualification from holding or obtaining a driver's licence for 3 years or such longer period as the court orders.

An offence will be considered to be a subsequent offence if there is a previous offence (for which the defendant has been convicted and that was committed within the period of 5 years immediately preceding the commission of the offence under consideration) against:

  • s 45A Road Traffic Act 1961 (SA) (excessive speed)
  • s 46 Road Traffic Act 1961 (SA) (reckless and dangerous driving)
  • s 47 Road Traffic Act 1961(SA) (driving under the influence of alcohol or drugs)
  • s 47B Road Traffic Act 1961 (SA) (prescribed concentration of alcohol – but a category 1 offence i.e. PCA less than 0.8 will NOT be taken into account).

An offence will also be considered to be a subsequent offence if there is a previous offence (whenever occurring) for which the defendant has been convicted against:

  • s 19AD (street racing)
  • s 19A (causing death or harm by use of vehicle or vessel)
  • s 19AB (leaving accident scene after causing death or harm by careless use of vehicle or vessel)
  • s 19AC (dangerous driving to escape police pursuit)
  • the previous subsection of s 44B Road Traffic Act 1961 (SA) that prohibited street racing.

Throwing objects at vehicles

Elements of the offence

It is an offence to throw or drop an object at or on a vehicle being driven on a road, busway, railway or tramway [Criminal Law Consolidation Act 1935 (SA) s 32A]. The offence will be made out regardless of whether the vehicle is moving or stationary at the time that the object is thrown or dropped.

Penalty

A penalty of up to 5 years imprisonment applies.

Definition of 'vehicle'

‘Vehicle’ includes all modes of transport such as bicycles, animal drawn carriages and even a person riding an animal.

The types of objects covered by the legislation are numerous and include:

  • rocks
  • bricks
  • lumps of concrete or clay
  • heavy pieces of metal or metal objects
  • pieces of wood
  • glass bottles
  • filled cans or plastic containers

Unregistered and uninsured vehicles

These offences (and the defences available to them) reinforce that it is the owner's responsibility to ensure vehicles are registered and insured.

Unregistered vehicles

It is an offence to do any of the following:

  • drive an unregistered vehicle;
  • allow an unregistered vehicle to stand on a road; or
  • own an unregistered vehicle which is driven or found standing on a road.

Due to the broad definition of a "road", which includes any place the public has access to, many people unknowingly commit an offence. For example, riding an unregistered off-road motor cycle on a reserve may be an offence.

Penalty

A fine of up to $7500 [Motor Vehicles Act 1959 (SA) ss 9(1), 9(3)].

Defences for drivers

It is a defence if you drove the vehicle or allowed it to stand in prescribed circumstances and you did not know that it was unregistered [see s 9(1a)]. It is also a defence if you were the driver, but not the owner of the vehicle, and you did not know, and could not have reasonably be expected to have known, that the vehicle was unregistered [see s 9(1c)].

Defences for owners

It is a defence if you did not drive or leave the vehicle standing on the road and you took reasonable steps to ensure that any person lawfully entitled to use the vehicle would have been aware that it was unregistered [see s 9(4a)]. It is also a defence if your vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 9(5)], or you were the last registered owner but were nolonger the owner at the time of the alleged offence [see s 9(6)].

Power-assisted bicycles

There are two categories of power-assisted bicycles – one of which falls within the definition of a bicycle and can be legally ridden on South Australian roads; the other being illegal to drive on a public road in South Australia.

Generally, a power assisted bicycle will meet the definition of a bicycle if the main means of propulsion is by pedal power and the motor produces no more than 200 watts; Pedalec bikes also meet the definition of a bicycle but have a motor capacity of 250 watts. Electric power assisted bikes look like an ordinary bike, have an adjustable seat and an electric assistance motor. In addition they must have a clear label certifying them as complying with the nationally accepted standards for electric bicycles (see Cyclists).

Petrol powered bikes (also referred to as petrol assisted) cannot be lawfully driven on roads in South Australia. Any vehicle that does not meet the definition of a bicycle must be registered as a motor vehicle and insured.

Petrol powered/assisted bikes cannot be registered (or insured). This means that driving such a vehicle on the roads can result in a charges of driving an unregistered and uninsured vehicle.

Exemptions

A motor vehicle may be driven without registration under section 12B of the Motor Vehicles Act 1959 (SA) if being driven for the purpose of extinguishing or controlling a fire that is a risk to persons, animals or property - but only if public liability insurance is held indemnifying the owner and any authorised driver for death or injury caused by the use of the vehicle on roads. The amount of public liability insurance must be in an amount of at least $5 million.

Uninsured vehicles

It is an offence to do any of the following:

  • drive an uninsured vehicle;
  • allow an uninsured vehicle to stand on a road (i.e. any place with public access); or
  • own an uninsured vehicle which is driven or found standing on a road.

An uninsured vehicle is defined as a vehicle that is not covered by compulsory third party insurance. This insurance automatically applies with the registration of a vehicle and continues until thirty days after the registration expires.

Penalty

A fine of up to $10000 [Motor Vehicles Act 1959 (SA) ss 102(1), 102(2)].

Power assisted bicycles

As discussed above, only those bicycles that meet the definition of a bicycle (including an electric power assisted bicycle up to 200 watts or a Pedalec with capacity up to 250 watts) are exempt from having to be registered and insured. Bicycles running on petrol powered motors are not included in the exemption for registration and insurance. Riding such a bike can therefore result in a charge of driving uninsured (and driving unregistered).

Defences for drivers

It is a defence if you drove the vehicle or allowed it to stand in prescribed circumstances and you did not know that the vehicle was uninsured [see s 102(1a)]. It is also a defence if you were the driver but not the owner of the vehicle and you did not know, and could not reasonably be expected to have known that the vehicle was uninsured [see s 102(9c)].

Defences for owners

It is a defence if you did not drive or leave the vehicle standing on the road and you took reasonable steps to ensure that any person lawfullly entitled to use the vehicle would have been aware that he vehicle was uninsured [see s 102(3aa)]. It is also a defence if your vehicle was driven or left standing on the road because of an unlawful act, such as theft [s 102(3a)], or you were the last registered owner but were no longer the owner at the time of the alleged offence [see s 102(3b)].

Detection by speed and traffic cameras

Speed and red light cameras can be used to detect unregistered and uninsured vehicles.

Where an expiation notice is issued as a result of detection by a speed or red light camera, any subsequent offences committed within seven days of the commission of the offence are subsumed by the first offence (i.e. not counted as separate offences) [see Motor Vehicle Act 1959 (SA) sch 1 s 2(1)]. This is in recognition of the fact that there will be a lapse of time between the commission of the offence and the driver being notified of it. However, where a driver is charged with an offence of drive unregistered or drive uninsured by expiation notice, any subsequent offences committed after this are counted as separate offences (not subsumed) [see sch 1 s 2(2)].

Exemptions

A motor vehicle may be driven without insurance under section 12B of the Motor Vehicles Act 1959 (SA) if being driven for the purpose of extinguishing or controlling a fire that is a risk to persons, animals or property - but only if public liability insurance is held indemnifying the owner and any authorised driver for death or injury caused by the use of the vehicle on roads. The amount of public liability insurance must be in an amount of at least $5 million.

Using a vehicle to commit a crime

If a motor vehicle is used to assist in the commission of an offence, the court sentencing the offender has the power to disqualify the person from holding or obtaining a driver's licence, either for a specified period or until further order [Road Traffic Act 1961 (SA) s 170]. When a person uses a car, for example, in an armed robbery or to take a rape victim to the scene of the crime, it would not be unusual for the person to be disqualified from holding or obtaining a driver's licence for some period in addition to receiving the penalty laid down for the primary offence.

Truck drivers

There are many offences concerning the driving of heavy vehicles due to increasing regulation to improve safety standards.

The relevant legislation for South Australia is the Heavy Vehicle National Law (South Australia) 2013 and the Heavy Vehicle National Law regulations:

A useful website containing information for truck drivers about the law governing them and their work is the National Heavy Vehicle Regulator at https://www.nhvr.gov.au/.

The website contains relevant forms, information on access permits, and industry updates as well as up-to-date details on penalties and infringements including an indication, where relevant, of the range of penalties imposed by the courts.

Parking Offences

Relevant legislation

Most common traffic offences involve parking (eg, exceeding parking time limits, parking too close to intersections, parking in a Clearway) which are dealt with under the Road Traffic Act 1961 (SA) and specifically in Part 12 of the Australian Road Rules. All references in this part are to the Road Traffic Act 1961 (SA) unless otherwise stated.

Elements of the offence

Parking is when you stop for any reason other than obeying a traffic light, sign or a police officer or to avoid an accident. Under s 174A the owner of a motor vehicle is responsible for any parking offences committed with that vehicle. If the owner was not the driver at the time of the offence, she or he must provide a statutory declaration setting out the name and address of the driver to avoid being prosecuted. Where a vehicle is stolen the owner should provide full details, including the crime report number, to the council and ask that that the matter be withdrawn. If the council refuses to withdraw it, full details, including the attempt to settle the matter, should be given to the court. Both the owner and the driver cannot be prosecuted for the same offence and a conviction of either exonerates the other.

If matter proceeds to court further costs may be involved

Usually an expiation notice in given which allows the owner of the vehicle to pay a 'fine' to avoid prosecution. If the matter proceeds to court and the person pleads, or is found, guilty, a fine will be imposed plus court costs and the council's legal costs, so if the driver admits the offence, it usually advisable to pay the 'fine' promptly. Any person wishing to defend the matter must provide evidence that raises doubts about the accuracy of the allegations.

Improper issue of parking notices

Sometimes it may be claimed that parking notices are issued improperly, such as the relevant parking restriction signs were not clearly visible. If so, photographs should be taken that show the difficulty is seeing in the sign. Due to the risk of 'court costs' if the person loses, great care should be taken before deciding to plead not guilty to a parking offence.

Who can issue parking fines?

Fines in relation to parking offences can only be issued by local councils. Private parking companies have no authority in their own right to issue parking fines. However, under the Private Parking Areas Act 1986 (SA) they can reach an agreement with a local council for them to issue and collect parking fines on their behalf. In the absence of such an agreement the private company cannot collect fines for parking on their land.

Clamping

Whilst it is an offence under the Private Parking Areas Regulations 2001 (SA) (see reg 14) for an owner of a private parking area to immobilise a vehicle, some companies have been known to engage in this practice. Although a driver whose car has been clamped could seek a court order for the removal of the clamp, the reality of such a situation is that they will more than likely want to retrieve their car as soon as possible. In this situation they will be obliged to pay the necessary fee to have the clamp removed. As proof of ownership will be required for this the private parking company will then be provided with details of their name and address, enabling them to pursue an action in damages or breach of contract against the owner of the vehicle.

Pedestrian Offences

‘Jaywalking’

There is no specific offence of jaywalking but under the Road Traffic Act 1971 and the Australian Road Rules a number of offences exist in relation to walking without regard to other road users or without regard to safety.

Pedestrian offences

  • Under s 87 of the Road Traffic Act 1961 (SA) it is an offence to walk without reasonable regard for other road users.
  • Under the rules 230 and 234 of the Australian Road Rules it is an offence for a pedestrian to cross a road diagonally, unless at an intersection where this is allowed.
  • It is an offence under regulation 23A of the Road Traffic (Road Rules -- Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) (and rule 234 of the Australian Road Rules) to cross to or from an area of road within 20 metres of a tram stop other than at a pedestrian crossing.
  • It is an offence to cross a road within 20 metres of a pedestrian crossing at a place other than the pedestrian crossing (rule 234 of the Australian Road Rules).
  • Rule 230 states that a pedestrian must cross a road by the shortest safest route and under rule 232 they can only cross when the pedestrian lights are green.

Penalties

The maximum penalty for these offences is $2500 - for the expiation fee see the penalty summary .

Public transport passenger offences

Offences pertaining to passengers on public transport are contained in the Passenger Transport Regulations 2009 (SA).

Some of the more common offences are listed below.

  • Failing to pay the appropriate fare [reg 100(1)]

    Maximum penalty: $1250

    Expiation fee: $160

  • Failure to validate ticket [reg 101(1)]

    Maximum penalty: $1250

    Expiation fee: $160

  • Refusal to show ticket/concession or identity card for inspection [reg 102(1)]

    Maximum penalty: $1250

    Expiation fee: $160

  • Causing nuisance or annoyance [reg 106]

    Maximum penalty: $1250

    Expiation fee: $160

  • Graffiti, bill posting [reg 128]

    Maximum penalty: $2500

    Expiation fee: $210

Boating Offences

The Harbors and Navigation Act 1993 (SA) outlines a number of offences that may apply when operating or acting as a member of a crew on a boat or water vessel.

It is an offence to operate a vessel and be so much under the influence of drugs or alcohol as to be incapable of exercising effective control of the vessel [Harbors and Navigation Act 1993 (SA) s 70(1)]. It is also an offence to be a member of a crew and be so much under the influence of drugs or alcohol as to be incapable of effectively performing the required duties [Harbors and Navigation Act 1993 (SA) s 70(1)].

A maximum penalty of a fine of not less than $1100 and not more than $1600, or a term of imprisonment for not more than 3 months, applies. Higher penalties apply for subsequent offences [Harbors and Navigation Act 1993 (SA) s 70(1)].

Any person who operates a vessel, or a crew member who is engaged in duties affecting the safe navigation of the vessel, must not have a blood alcohol level of 0.05 or above, or any drugs in their system [Harbors and Navigation Act 1993 (SA) s 70(2)]. Different fines apply for these offences depending on the blood alcohol content level and whether it is a first or subsequent offence - see section 70(2) for penalties.

Marine Safety Officers and Police Officers can conduct breath tests [Harbors and Navigation Act 1993 (SA) s 71]. A drug screening test can also be administered by a police officer if a person has submitted to alcotest or breath analysis [Harbors and Navigation Act 1993 (SA) s 72].

It is an offence to refuse to comply with a direction to undertake an alcotest, breath analysis test, or drug screening test [see ss 71(8); 72(10)].

In the event of a boating accident and where a person aged over 10 years is taken to hospital, the treating medical practitioner has a duty to take a sample of the patient's blood to test it for the presence of drugs or alcohol [Harbors and Navigation Act 1993 (SA) s 74].

Specific speed restrictions may also apply in certain circumstances, and an expiation notice or fine may be issued if these limits are not adhered to - see Harbors and Navigation Regulations 2009 (SA) reg 168. Some SA waters may also have specific, local speed restrictions, which are often sign posted near boat ramps and which must also be adhered to.

For more information on boat safety requirements, including in relation to life jackets, speed limits, and boat loading, see the Service SA brochure Safety on the Water.

Possible Outcomes of Traffic Offences

Minor traffic offences (that is, offences for which the penalty does not include possible imprisonment) can either be dealt with by court proceedings or, if the offender has been issued with an expiation notice, by payment of a fee.

Expiation

There are many traffic offences for which a police officer can issue an expiation notice (or on-the-spot fine) rather than a summons to attend court proceedings for prosecution.

An on the spot fine is not recorded as a conviction, but a driver will incur demerit points for the offence [see Motor Vehicles Act 1959 (SA) s 98B] and upon expiation, be subject to the forfeiture of their vehicle [see Expiation of Offences Act 1996 (SA) s 15(5)].

For more information about the expiation notice system and the options available upon receiving an expiation notice, see the chapter Expiation Fees and Fines.

Prosecution

A person will automatically be found guilty of the offence where an expiation notice is issued and remains unpaid after a reminder notice has been sent. As a result, prosecutions for traffic offences are mainly for offences where an expiation notice is not issued, or if a notice was issued, the person has completed an election form, asking to be prosecuted for the offence.

Most prosecutions for minor offences are commenced by the issuing of a summons on a Form 4A. On this form of summons a person can plead guilty and not attend court. A guilty plea can be entered by writing on the back of the form details required to be taken into account by the court when it fixes the penalty. The form must be signed in front of a lawyer, a justice of the peace or a police officer and returned to the court at least three clear days before the date set for the hearing. After the hearing the offender is notified of the penalty imposed. However, if the penalty for the offence includes possible licence disqualification, the offender will be notified of the necessity to attend the hearing, as the court cannot disqualify a person from driving unless the person is given an opportunity to say why it should not do so.

People wishing to plead not guilty simply attend court, either personally or through a lawyer, on the day shown on the summons. Drivers who commit more serious offences are prosecuted on Form 4 summonses and must attend court even if pleading guilty. Legal advice should be sought in this situation.

Court for drink driving offences

The majority of drink driving offences are dealt with by the Magistrates Court. Below is a guide to preparing to appear in the Magistrates Court on these matters.

Before going to court

Legal advice

Make sure you get legal advice first. It may be that you are not guilty of the charges but are guilty of a lesser offence (see Trifling offences). If you are in any doubt you should not plead guilty without having sought legal advice first. If you go to court without having had legal advice you may feel pressured to plead guilty just to get things over and done with. You should not make a decision to plead guilty until you have had legal advice. You can ask the magistrate for an adjournment (i.e. request that the matter be rescheduled) in this situation, explaining that you need to get legal advice. If an adjournment is granted, the magistrate will allow you to return at a later date.

The Legal Services Commission operates a duty solicitor service at all metropolitan courts and at Mount Barker, Port Augusta and Whyalla. If available, the duty solicitor may be able to provide advice on applying for an adjournment, see Duty solicitors.

Will I get legal aid?

Legal aid is not usually granted for traffic offences. The exception to this is if there is a real risk you could face imprisonment. This is unlikely for drink driving offences but other offences such as driving disqualified or serious offences such as dangerous driving can have a term of imprisonment. If facing such charges you may be eligible for a grant of legal aid for a lawyer to represent you. Seek advice from our Legal Helpline on 1300 366 424 if you are in any doubt about this.

Deciding whether to plead guilty or not guilty

You will need to seek legal advice before making the decision about how to plead. As a consequence of the advice you receive there may be other things you need to think about before deciding on how to plead (see Sentencing).

If pleading guilty there are some advantages. For example, the court is likely to give you a less severe penalty.

If pleading not guilty you must have a case that has a reasonable chance of succeeding. This is extremely difficult with drink driving offences (see Challenging breath test results). Again you will need to seek legal advice about this. You also need to be aware of what will happen if you lose. If you choose to plead not guilty the matter will go to trial and you will need to pay for a lawyer to represent you or represent yourself. If you lose your case you will have to pay court costs, in addition for the costs of paying for legal representation.

Preparing for the hearing

Think about what you will say to the Magistrate before going to court. You may also need to provide supporting documents to the court. Take several copies of any documents you wish to provide as you will need to provide a copy for the magistrate and the prosecution.

Be prepared to tell the court of anything you wish them to take into account in mitigation of penalty (i.e. factors that mean you should face lower penalties as a result). These can be things like:

  • your previous unblemished driving record if you have not had any other offences
  • the fact that you rely on your licence for your livelihood
  • whether you have dependants and how they will be affected by a longer than normal licence disqualification period
  • your financial situation – this impacts on your ability to pay any fines and you will need to provide evidence of your income and financial obligations so this can be taken into account when the court applies a fine

Will I lose my licence?

With the exception of 1st offences between 0.05 and 0.079, all drink driving offences carry with them a compulsory period of licence disqualification. This means that you will lose your licence for at least the minimum period specified by the legislation. However, the courts also have the power to grant an even longer licence disqualification. In making submissions to the court about penalty you will need to provide evidence of your reliance on your licence and how this effects you and your family, and any other factors to show why the minimum disqualification period should not be extended.

How much will it cost?

If you plead guilty, in addition to the fine imposed by the court, you will have the following expenses to pay:

  • Victims of Crime levy – $160 for each offence [$100 for a youth]
  • Prosecution Administration fee - $16
  • Court costs of $141

If you plead not guilty and are unsuccessful you may also have to pay additional prosecution costs such as witness fees.

Disqualification

A court can disqualify a driver if he or she has been found guilty of a traffic offence that carries a penalty of disqualification. However, a court also has the power to disqualify a driver under section 168 of the Road Traffic Act 1961 (SA), which allows for disqualification for any offence using a motor vehicle. The court can impose a disqualification for a fixed period or until further order.

Where a court has disqualified a driver, it may postpone the commencement of disqualification where special reasons exist, for example, to enable a defendant to drive home or complete work commitments.

A driver who has served a court ordered disqualification period will need to renew their licence once the disqualification has been served. Failure to do so will mean that they are not be eligible for the good behaviour option if demerit points apply for the original offence.

The Young Offenders Act 1993 gives the Youth Court the power to order that a child who is found guilty of an offence may not hold or obtain a driver’s licence if it is of the opinion that the child is not a fit and proper person to hold a driver’s licence. Generally, children are treated more leniently than adults.

Insurance claims

A person claiming on an insurance policy for damage as a result of an accident must inform the insurer of court proceedings for an offence arising out of the incident, as it may affect the insurer's ability to defend the claim. A person who pleads guilty without first getting the insurer's approval may find that the insurer will refuse to meet the claim.

Mistakes

A mistake in either an expiation notice or a summons is usually not a good enough reason to have the matter dismissed. Either the notice will be re-issued or the summons will be amended in court.

Clamping, impounding, seizure and forfeiture of vehicles

To apply for early release of a clamped or impounded vehicle visit the SA Police website and access the online Early Release Application form

When can a car be clamped, seized or impounded?

Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) police can clamp, impound, seize and order the forfeiture of motor vehicles used by persons who have committed the following (prescribed) offences:

  • Causing death or harm by dangerous use of a motor vehicle [Criminal Law Consolidation Act 1935 (SA) s 19A]
  • Leaving accident scene after causing death or harm by careless use of motor vehicle [Criminal Law Consolidation Act 1935 (SA) s 19AB]
  • Dangerous driving to escape a police pursuit [Criminal Law Consolidation Act 1935 (SA) s 19AC]
  • Misuse of a motor vehicle [Road Traffic Act 1961(SA) s 44B]
  • Aggravated offence of drive without due care [Road Traffic Act 1961(SA) s 45]
  • Excessive speed [Road Traffic Act 1961 (SA) s 45A]
  • Reckless and dangerous driving [Road Traffic Act 1961 s 46]
  • Driving under the influence [Road Traffic Act 1961(SA) s 47]
  • Driving while having a prescribed concentration of alcohol in blood [Road Traffic Act 1961 (SA) s 47B]
  • Driving while having a prescribed drug in oral fluid or blood [Road Traffic Act 1961(SA) s 47BA]
  • Emitting excessive noise from a motor vehicle [ Summary Offences Act 1953 (SA) s 54]
  • Marking graffiti [Graffiti Control Act 2001 s 9]
  • Arson and other property damage – if the offence involves marking graffiti [Criminal Law Consolidation Act 1935 (SA) s 85]
  • Driving unlicensed never having held a licence[ Motor Vehicles Act 1959 (SA) s 74(2)]
  • Driving whilst suspended [Motor Vehicles Act 1959 (SA) s 91(5)]
  • Driving unregistered [Motor Vehicles Act 1959 (SA) s 9] *
  • Driving uninsured [Motor Vehicles Act 1959 (SA) s 102] *

* does not include a first offence

Police can only exercise the power to clamp, seize and impound vehicles if the person driving or operating the vehicle at the time of the offence:

  • is to be, or has been, reported for the offence and has been advised of that fact; or
  • has been charged with, or arrested in relation to, the offence.

The above does not apply where an expiation notice has been issued, unless the notice is withdrawn or the person elects to be prosecuted (see Expiation).

How can a car be seized?

A vehicle can be seized from:

  • a public place (this includes carparks, roads, footpaths and alleys); or
  • a place occupied by a person who has committed, or is alleged to have committed, an impounding offence; or
  • any other place:
  • with the consent of the owner or occupier of the place, or
  • if it can be seen that the motor vehicle is at the place, or
  • under the authority of a warrant issued by a magistrate.

The impounding authority (police officer or court sheriff) is empowered to do anything reasonably necessary for the purpose of seizing and moving the vehicle.

Under the legislation they can do any of the following to seize a motor vehicle:

  • Require a vehicle to stop
  • Enter or search premises occupied by an offender or any other place where the car is located and, using reasonable force, break into or open a garage or other structure where a vehicle may be stored
  • Remove, dismantle or neutralise a locking device (or other feature of vehicle)
  • Start the car by other means where a driver refuses to hand over the keys to the vehicle
  • Temporarily affix clamps or other locking devices to a motor vehicle to secure it until it can be seized and moved

[Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 16]

How long will my vehicle remain impounded?

A vehicle can be clamped or impounded for a period of 28 days, however, applications can be made by the Police Commissioner to the Magistrates Court for an extension [ss 6, 7]. If an extension is granted it can be for no more than 90 days.

What if my car was stolen and has been impounded as a result of someone else’s actions?

If the Commissioner of Police is satisfied that the motor vehicle was, at the time of the offence, stolen or not lawfullly possessed then it must be released [s 8(2)].

What if my car was used by a friend or family member to commit an offence without my knowledge?

The Police Commissioner has the authority to release a clamped or impounded vehicle if satisfied that the offence was committed without the owner’s knowledge or consent [s 8(2a)].

Are there provisions to allow for a vehice to be released if its impounding will cause financial hardship?

Under section 8(2a) the Police Commissioner can order the release of a motor vehicle if it can be established that severe financial or physical hardship will be suffered by someone other than the offender if the vehicle remains impounded. Such an application must be made by the affected person and not by the offender.

If the car is registered in someone else’s name, will they be contacted?

When a vehicle is impounded or clamped the Commissioner of Police must make reasonable attempts to contact all current registered owners (or, if there are no current registered owners, the last registered owners of the vehicle) to advise them of the action taken and to provide any necessary information in relation to securing the vehicle’s release [s 5(6)].

What happens after the impounding period has ended?

At the end of the clamping/impounding period the owner must apply for the vehicle to be released and the vehicle must be released as soon as is reasonably practicable after the application has been made. Under s 8 the police or relevant authority are not obliged to release a vehicle outside of ordinary business hours.

The vehicle can be released either to the registered owner or to a person authorised by the registered owner.

[Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 8(1)]

Will I have to pay an impounding fee?

These are payable only after a person has been convicted by a court for a prescribed offence [s 9]. For details of fees payable see penalty summary.

Under what circumstances can a court make an order for a vehicle to be impounded for a longer period?

Where the person charged has been found guilty of or expiated one other prescribed offence within 10 years of the date of the impounding offence, and there is no forfeiture order against the vehicle, the court can make an order to impound for a period not greater than 6 months [s 12].

When can a court make an order for a vehicle to be forfeited?

A court can make an order for forfeiture under the following circumstances:

  • Where a forfeiture offence has been committed, or
  • Where the person charged has been found guilty of or expiated at least one other prescribed offence in the 12 months before the date of the current offence, or
  • Where the person charged has been found guilty of or expiated at least two other prescribed offences within 10 years of the date of the current offence

Any application for forfeiture must be made before the finalisation of the related proceedings (i.e. the offence in respect of which an application for forfeiture has been made).

Will I have the opportunity to explain how the order will affect me?

Where an application is made to the Court for an order to impound or forfeit a vehicle notice of the application must be give to each registered owner of the vehicle and, if the prosecution is aware that any other person has a claim to ownership of the vehicle or is likely to suffer financial or physical hardship as a result of the order, to them also.

In addition the court must hear representations from persons affected by the order and has the power to make any orders it considers necessary to deal with this, including deciding not to make an order where it can be shown to cause severe financial or physical hardship or where it would significantly affect the rights of a credit provider.

Are there any circumstances where a court can refuse to make an order?

A court can decline to make an order if it is satisfied that:

  • it would cause severe financial or physical hardship; or
  • the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
  • the making of the order would affect the rights of a credit provider; or
  • the vehicle has since been sold to a genuine purchaser who did not have reason to know or suspect the motor vehicle was subject to an order for forfeiture

If the court declines to make the order on the basis of hardship it may order the person to perform up to 240 hours of community service in the alternative.

[Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 ss 12(1), 13]

Can I be prevented from selling my car once it has been released from impoundment?

In some circumstances a notice may be issued by the Police Commissioner prohibiting the sale or disposal of the motor vehicle until proceedings relating to the impounding offence have been finalised [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 14]. This type of notice may be issued to someone who has committed at least one relevant traffic offence in the last ten years.

Where a notice is served under this section, the owner must not sell or otherwise dispose of the motor vehicle. It is a criminal offence punishable by a maximum penalty of $2500 or imprisonment of 6 months.

The Court may also require a person who sells or disposes of a vehicle in breach of the notice to pay an amount equivalent to a reasonable estimate of the value of the vehicle to the Victims of Crime Fund [see s 14(4)].

When can a car be sold or otherwise disposed of by the police?

A motor vehicle can be disposed of (by sale or other means):

  • if it has been impounded and has not been collected within two months of its release
  • if it is the subject of a forfeiture order

Where a motor vehicle is sold it will be by public auction or public tender [s 20(4)].

If there are reasonable grounds to believe that the vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of the sale, the vehicle can be otherwise disposed of. This also applies if the vehicle has been offered for sale and was not sold.

In addition, under s 20(5), the Police Commissioner can direct that a motor vehicle be destroyed or disposed of in some other manner, however it is not clear under what circumstances this would occur.

[see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 20]

Is compensation payable for loss suffered as a result of the seizure, impounding or forfeiture of a motor vehicle?

No compensation is payable by the Crown unless the impounding authority did not act in good faith, or acted outside its powers [see Summary Offences Act 1953 (SA) s 66H].

Offences

It is an offence to hinder or obstruct a police officer from exercising their powers under this Act.

Maximum penalty: $2,500 fine or imprisonment of 6 months

It is also an offence to interfere with wheel clamps.

Maximum penalty: $2,500 fine or imprisonment of 6 months

It is a further offence to interfere with an impounded motor vehicle whilst in the custody of a relevant authority.

Maximum penalty: $2,500 fine or imprisonment of 6 months

Fees

For details of fees payable in relation to impounding, clamping and forfeiture see penalty summary.

    Traffic Offences  :  Last Revised: Wed Nov 1st 2017
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