03 Nov EXPIATION NOTICES: SHOULD YOU PAY THE FINE OR ELECT TO BE PROSECUTED?

I make very few guarantees when I represent clients. However, one of the guarantees I do make is that if you pay the Expiation Notice fee, you will incur the penalties applicable to the offence. This is usually the fine and demerit points. Occasionally there is an automatic disqualification period for some drink/drug driving offences and for exceeding the speed limit by more than 45kph. Of course, if you incur too many demerit points you will also receive a demerit point disqualification.

The benefit of paying the Expiation Notice fee is that there won’t be a conviction on your criminal record. The downside of paying the fine is that you can’t avoid the penalties. The only way to reduce demerit points is to elect to be prosecuted and apply to the Magistrate for a reduction of demerit points. The Magistrate can reduce a mandatory disqualification period if there is evidence that the offence was “trifling”. The Registrar of Motor Vehicles does not have any power to reduce demerit points; it’s pointless asking.

However, recent changes to the Road Traffic Act and the Motor Vehicles Act mean that for some offences, if you elect to be prosecuted and are found guilty, there is a greater penalty than if you pay the expiation. For example, if you pay the expiation for a first time drug driving offence, there is an automatic three month licence disqualification. But if you elect to be prosecuted and are found guilty in Court, there is a minimum six month disqualification period. The Court cannot reduce this because you mistakenly believed that penalty would be the same. When the laws changed in April 2018, Peter Malinauskas, who was the Minister for Road Safety at the time, openly stated that the increased penalty was “ to deter those who would take chances in court if the penalties were the same”. Hmmm. The Constitutionality of a law designed to deter people from exercising their right to defend themselves is a topic for another day.

Disturbingly, there are now some offences that carry a greater disqualification period if you pay the fine, than if you elect to be prosecuted.

So, it’s no longer as simple as electing to be prosecuted if you want to challenge the fine. You need legal advice from a competent traffic lawyer before you decide whether to pay the fine or elect to be prosecuted. There are lots of factors to take into account; the impact of your decision on your licence, the financial cost, the chances of successfully defending the charge. Once you have paid the fine, it is almost impossible to have this reversed so you can go to court.

Get advice BEFORE you pay the fine. I spend half my day listening to people telling me about their unfair Expiation Notices from twelve months ago. There is nothing I can do once the fine has been paid. Call me BEFORE you pay the fine, my friends; BEFORE.

Filed Under: News, Traffic Law