Busted speeding artical

[Silver-Arrowz]

Eyes caught a glimmer of the heading and thought it was an interesting read. Based on VIC and NSW laws.

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CAUGHT SPEEDING? KNOW YOUR RIGHTS -- Been pinged for speeding? Too bad. The way the law operates you'll need a damn fine case to get the damn fine reduced or overturned. But you shouldn't be deterred, just well prepared and cashed up, says Alexander Corne.

You have the right to remain silent. It is one of the few rights motorists have.

In Victoria and other states motorists do not have the right to view the speed detection device a police officer may be operating, with which he may be booking you for exceeding the posted limit.

And while you have the right to contest a speeding infringement in court, few people go to the expense of challenging it, because the costs of a defence lawyer far outweigh the cost of the fine, and the chances of successfully defending a speeding charge are often quite remote.

Of the approximately one percent of infringements that do go to court, in about 90 percent of cases motorists either plead guilty or are found guilty. If found guilty, the court often imposes the same penalty as on the infringement, but it can also increase or decrease the penalty as it wishes.

Victoria Legal Aid is one of the largest legal entities representing drivers issued with speed infringement notices. It holds Traffic Offence workshops to help you represent yourself and has a booklet entitled "The Road to Court" which details how to prepare for court, how to defend yourself, what penalties are likely, and how the demerit point system works.

But the VLA concedes, "It is very difficult to argue with a machine, but sometimes it may make a mistake". So unless you have a very strong case with witnesses or plenty of documentary evidence, the easiest option may be to pay an infringement notice and move on.

That's the advice garnered from a small sample of legal professionals who routinely advise drivers pinged for speeding. However, with enough money and perseverance, it is also possible to make a reasonable defence to practically any charge.

If you get pulled up by a speed detection device-wielding police officer, he does not have to show you the instrument, and you have no way of ascertaining that the speed displayed - if it is shown to you - was that of your vehicle or the previous one or the one next to you.

Speed detection devices are calibrated either annually or every six months to be as accurate as scientifically possible. In some states the legislated degree of accuracy of the cameras is +/- 2km/h. That explains why the infringement notice may say the detected speed was 106km/h and the alleged speed was 104km/h.

According to Melbourne Barrister Sean Hardy: "There is no obligation for the police to show the reading to the motorist. If a motorist asks, the police can refuse. Although I would expect them to show the reading if asked.

"The Magistrate is likely to accept the word of an experienced Traffic Operations Group officer over a motorist," Hardy says.

"It is difficult, but not impossible, to challenge experienced police. They don't even need speed detection equipment. If the policeman says he estimates you were traveling at 160km/h, the Magistrate is likely to believe him. It is then up to the driver to prove he wasn't."

According to Tony Danos, a Melbourne-based specialist in Criminal Law, 99 percent of people pay the speeding fines straight off, and of the one percent who do go to court, 90 percent fail to convince the Magistrate they have been unfairly penalised.

He says there may be occasions when the machinery is not operating properly, or when the wrong car has been pulled over, but these are rare and hard to prove.

The public can check the records of the device's certification upon subpoena.

Hardy also says that if a police car with a calibrated speedo follows you at an even distance for some time, that is enough to get you booked without printed or photographic evidence.

"If you can not afford to fight it, the best you can hope for is to get the ticket down to 24km/h over the limit to avoid automatic license loss.

"It is also possible to get off in an emergency, like a passenger who is sick or suffering a life-threatening trauma, but even then you'll need to call evidence from doctors, etc.," Hardy says.

Having your day in court is all very well and possibly soothing for the soul, but if you lose, you could have a conviction against your name.

"For most traffic offences, no conviction is recorded against you if you pay the infringement. But if you take the matter to court, a conviction can be recorded" says Sean Hardy.

"If you think you have a good defence, then it is worthwhile seeing if a lawyer agrees you have a good defence, and then take the lawyer with you to court.

"The lawyer will have far more experience in these matters as well as court procedure and you will stand a better chance of proving your case in front of a Magistrate.

"If it is worth doing, it is worth doing well," Hardy says. "It is also likely that a lawyer will find arguments that you could never have discovered."

If you are keen to fight a fine due to its elevated cost, just compare it with the costs of going to court. If you lose, you may be ordered to pay minor court costs as well having to pay your lawyer. It is often not economical.

Hardy says that there are only two occasions when it is worthwhile fighting an infringement notice. "First, if you are sure you are going to win. If you win, your costs are usually paid by the police. Second, if you know you will lose your licence if you don't challenge the fine."

Sydney lawyer Mark Stenberg says the cost of fighting a fine is such that it is cheaper to pay up.

"Fighting because of the fine is the worst reason to fight it," he says.

Some people do fight a fine on principal, and he concedes the police do make mistakes, sometimes simple ones, or there are equipment errors.

Sean Hardy suggests it can cost $500 to $1000 for a barrister to attend a hearing; so fighting a $300 fine through court with a lawyer does not make financial sense.

Tony Danos agrees. "Your chances of success are minimal, and in addition to the fine, and court costs, you'll lose a day off work. Unless the consequences are really high, don't bother, save your dough."

The opportunities for collecting demerit points are forever increasing. In December last year the number of demerit points deducted for Victorian drivers for most speeding offences increased, while at the same time the speed at which mandatory licence loss is imposed was reduced from 30km/h over the limit down to 25km/h over the limit.

[Silver-Arrowz]

The rub is that you can lose your licence for one month for doing 25km/h over the limit, then possibly face a further 3 months suspension because of the demerit points you accrued for that offence.

"If you are about to lose your licence for demerit points, then it may be worthwhile seeing if you can fight the infringement" says Hardy.

In Victoria, if you exceed the speed limit by more than 25km/h, or travel at more than 130km/h, then you will lose your licence for at least one month. The faster you go, the longer the suspension.

For licence loss infringements (drink driving and excessive speeding) you have 28 days from the date of the issue of the ticket to elect to go to court.

You must also write to the agency or person specified in the notice and state:

That you refuse to pay the infringement penalty

That you want the matter dealt with in open court, and

Whether you intend to defend any charge related to the facts set out in the infringement notice.

If you object within time, the infringement notice will be cancelled. If the police want to pursue you for the offence, they will have to file a charge in open court.

However, don't think that the court will hear your sorry tale and let you keep driving. Mandatory sentencing is alive and well pretty much everywhere when it comes to drink driving and excessive speed, so you might find the court has no discretion.

If you are a probationary driver you may find that for many offences the police will not issue a fine but will charge you and you will have to go to court.

Victoria Legal Aid has another handy booklet entitled "On The Spot Fines", which would be worth reading (also available online - see Fast Facts).

Michael Wighton, a divisional manager at Victoria Legal Aid - says there has been a significant increase in the numbers of drivers losing their licences due to excess demerit points.

He says a majority of drivers who are regular speeders elect to take the double or nothing good behaviour bond for 12-months to avoid the automatic three months licence suspension but invariably get caught again and are off the road for six months.

VicRoads sends out 12-demerit point warnings by post to your registered address. If you move, you have to tell VicRoads within seven days, failing to do so is also an offence and saying you did not receive the warning letter because you have moved is thus no defence.

Michael Wighton says the awareness of the fixed cameras in the Domain and Burnley Tunnels in Melbourne has cut the numbers of motorists getting caught after an initial spike when the cameras were commissioned.

He also says that the discretion afforded Magistrates regarding licence suspensions has evaporated with new laws regarding excessive speeding. Previously, he says you would need to be caught driving dangerously and doing more than simply going fast to lose your licence, but now the Magistrate has no option other than to suspend a licence for speeding 25km/h or more over the limit.

In New South Wales travelling at 31km/h or more over the limit results in a licence loss of three months and a $540 fine.

Also, the use of cameras and other speed detection devices to record speed accurately means the Magistrate will take the alleged speed at face value unless the motorist can prove the machinery was broken or has suffered a technical problem.

Wighton says that mandatory penalties mean there is no room for Magistrates to move.

In New South Wales, if you don't pay the fine and fail to return the notice electing to go to court, the infringement notice is referred to the Roads and Traffic Authority that will then issue a letter of intended cancellation of your licence. If you do not pay the fine within the period specified in the letter, the RTA will cancel your licence or vehicle registration.

In Victoria, when you trigger a speed detection device such as a speed camera, the police forward a penalty notice to the penalty payments office which then posts the infringement notice to the registered owner of the vehicle.

If payment is not received by the due date, a courtesy letter is dispatched, offering the driver a further chance to pay up or else suffer an enforcement order. The enforcement order can be enforced by the sheriff seizing property or arresting the debtor.

While many non-hoon drivers may scoff at the likelihood of them being detected at 31km/h over the limit accidentally, the presence of speed cameras at road works or bridges when speed restrictions can be varied via electronic signboards means that drivers cannot take speed limits for granted just because that familiar section of road has always been posted at 80km/h or 90km/h.

This is especially true of locations such as the tunnels under central Melbourne, posted at 80km/h but routinely switched to 60km/h during maintenance work or the like. And in Melbourne, travelling at only 85km/h through a 60km/h roadwork zone will result in mandatory licence loss. No excuses.

Many drivers have sworn blind to lawyers such as Sean Hardy that they were not doing 80km/h in a 60km/h zone as charged by an infringement notice. The operators of the City Link toll way maintain there is a delay between the electronic speed limit signs turning to 60km/h and the fixed speed cameras reducing their triggering threshold. The tunnel's cameras snap about 100 drivers a day.

Should you be apprehended driving during a period of licence suspension you are likely to get a further fine and licence suspension extension, but if you are apprehended a second time, the Magistrate has the no option but to impose a one month's jail sentence (though this is usually suspended).

Given the wholehearted support for the Speed Kills campaign by so many State governments (and the revenues raised thereof - see accompanying FAST FACTS), motorists may consider using their power as voters to try to make the point that the zero tolerance policy is hurting regular folk.

On the other hand, speeding by definition is law breaking, and you wouldn't want a band of housebreakers or muggers influencing politicians, would you?

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[Guest INASNT]

alot of good info there!

my speeding courtcase will be coming up in about 6 months or so!