South Australian Current Acts South Australian Current Acts47IAA—Power of police to impose immediate licence disqualification or
suspension
(1) This section
applies to the following offences:
(a) a
category 2 offence;
(b) a
category 3 offence;
(ba) an
offence against section 46;
(bb) an
offence against section 47BA(1) or (1a);
(c) an
offence against section 47E(3) or (3a);
(ca) an
offence against section 47EAA(9) or (9a);
(cb) an
offence against section 47I(7);
(d) an
offence against section 47I(14) committed by a person who was the driver
of a motor vehicle involved in the accident.
(2) Subject to this
section, a police officer may give a person a notice of immediate licence
disqualification or suspension that includes the prescribed particulars
if—
(a) the
police officer reasonably suspects that the person has committed an offence
against section 47BA(1) or (1a); or
(b) the
police officer reasonably believes that the person has committed an offence
(other than an offence against section 47BA(1) or (1a)) to which
this section applies.
(3) The notice must
specify the offence to which the notice relates.
(4) If a person is
given a notice of immediate licence disqualification or suspension under
subsection (2)—
(a) in
the case of a person who does not hold a driver's licence—the person is
disqualified from holding or obtaining a driver's licence for the
relevant period; or
(b) in
the case of a person who holds a driver's licence—the person's driver's
licence is suspended for the relevant period.
(5) The Commissioner
of Police must ensure that prescribed particulars of a notice of immediate
licence disqualification or suspension given to a person under this section
are forwarded to the Registrar of Motor Vehicles.
(6) The Registrar of
Motor Vehicles must, on receiving particulars of a notice of immediate licence
disqualification or suspension from the Commissioner of Police, send, by post,
a notice to the person of the name and address specified by the Commissioner
containing the prescribed particulars of the notice of immediate licence
disqualification or suspension.
(7) The operation of a
notice of immediate licence disqualification or suspension is not affected by
any failure to comply with subsection (6).
(7a) If a person is
given a notice of immediate licence disqualification or suspension under this
section, the Commissioner of Police must ensure—
(a) that
a determination is made, within a reasonable time, as to whether to charge the
person with an offence to which this section applies; and
(b) if a
determination is made that the person should not be charged with any offence
to which this section applies, that the person is given, or sent by post,
written notice of that determination.
(7b) The laying of
charges against a person is not prevented by a failure to comply with
subsection (7a) in relation to the person or by the making of a
determination referred to in that subsection or the notification of such a
determination.
(7c) Subject to the
making of an order under section 47IAB(2)(a)(ii), the operation of a
notice of immediate licence disqualification or suspension is not affected by
any failure to comply with subsection (7a).
(8) If the person is
not charged with the offence specified in the notice as the offence to which
the notice relates but is charged with another offence to which this section
applies arising out of the same course of conduct, that offence will then be
taken to be the offence to which the notice relates.
(a) a
period of licence disqualification or suspension has applied to a person as a
result of the person having been given a notice of immediate licence
disqualification or suspension under this section; and
(b) a
court convicts the person of the offence to which the notice relates or
another offence arising out of the same course of conduct; and
(c) a
mandatory minimum period of disqualification would (apart from this
subsection) be required to be imposed for the offence,
then—
(d) the
court must order that the person be disqualified from holding or obtaining a
driver's licence for a period determined by the court (and if the person is
the holder of a driver's licence, the disqualification operates to cancel the
licence from the commencement of that period); and
(e)
despite any other provision of this or any other Act, the court must, in
determining the period, take into account the period of licence
disqualification or suspension that has applied to the person as a result of
the notice and may for that purpose—
(i)
if the relevant period of licence disqualification or
suspension under the notice has not ended, order that the period imposed be
taken to have commenced on the day on which the relevant period commenced
(provided that the period imposed is not less than the mandatory minimum
period of disqualification); or
(ii)
if the relevant period of licence disqualification or
suspension under the notice has ended, impose a period that is less than the
mandatory period of disqualification (provided that the period imposed is not
less than the difference between the mandatory minimum period of
disqualification and the period that has applied as a result of the notice),
and if the person is the holder of a driver's licence, the licence will be
taken to have been cancelled—
(iii)
where subparagraph (i) applies—from the day on
which the order of the court is made; or
(iv)
where subparagraph (ii) applies—from the
commencement of the period of disqualification ordered by the court.
(10) Subject to
subsection (11), no compensation is payable by the Crown or a police
officer in respect of the exercise, or purported exercise, of powers under
this section.
(11)
Subsection (10) does not protect a police officer from liability in
respect of the exercise, or purported exercise, of powers otherwise than in
good faith.
(12) For the purposes
of this section—
(a) the
"relevant period commences—
(i)
in the case of a notice of immediate licence
disqualification or suspension for an offence against section 47BA(1)
or (1a)—at the time at which the person is given the notice of
immediate licence disqualification or suspension or, if a police officer
referred to in subsection (2) is satisfied that, in the circumstances, it
would be appropriate to postpone the commencement of the relevant period and
the notice indicates that the commencement is to be postponed, 28 days
after the time at which the person is given the notice; or
(ii)
in any other case—at the time at which the person
is given the notice of immediate licence disqualification or suspension or, if
the police officer giving the notice is satisfied that, in the circumstances,
it would be appropriate to postpone the commencement of the relevant period
and indicates in the notice that the commencement is to be postponed,
48 hours after the time at which the person is given the notice; and
(b) the
"relevant period" ends—
(i)
if the Magistrates Court, on application under
section 47IAB, makes an order that the person given the notice is not
disqualified, or that the driver's licence held by the person is not
suspended, by the notice; or
(ii)
if the Magistrates Court reduces the period of
disqualification or suspension on application under section 47IAB, when
that period ends; or
(iia) if
the person given the notice is notified in writing by or on behalf of the
Commissioner of Police (whether that notification is given personally or by
post) that the person is not to be charged with any offence to which this
section applies arising out of the course of conduct to which the notice of
immediate licence disqualification or suspension relates; or
(iii)
if proceedings for the offence to which the notice
relates are determined by a court or are withdrawn or otherwise discontinued;
or
(iv)
in any event—
(A) if the offence to which the notice
relates is a category 2 offence or an offence against section 47EAA(9) or
(9a)—at the end of 6 months from the commencement of the
relevant period; or
(AB) if the offence to
which the notice relates is an offence against section 47BA(1)
or (1a)—at the end of 3 months from the commencement of the
relevant period; or
(B) in any other case—at the end of
12 months from the commencement of the relevant period.
(14) The Commissioner
of Police must establish procedures to be followed by police officers giving
notices of immediate licence disqualification or suspension under this section
for the purpose of determining whether the commencement of the relevant period
should be postponed under subsection (12)(a)(i) or (ii).
(15) A regulation made
before the commencement of this subsection prescribing the form of a notice of
immediate licence disqualification or suspension under this section or varying
such a form is declared to be, and to have always been, valid.
(16) A notice given to
a person by a police officer before the commencement of this subsection that
purported to be a notice of immediate licence disqualification or suspension
under this section is declared to be, and to have always been, valid if the
notice was completed in the prescribed form and was given in the circumstances
specified in subsection (2).
(17) The following
provisions apply in relation to a prescribed notice:
(a) if
the notice specified that the person was alleged to have had a blood alcohol
concentration of 0.08 - 0.149, the notice will be taken to have
specified that the person was alleged to have committed a
category 2 offence;
(b) if
the notice specified that the person was alleged to have had a blood alcohol
concentration of or above 0.15, the notice will be taken to have specified
that the person was alleged to have committed a category 3 offence;
(c) the
relevant period under such a notice will be taken to have ended on
26 June 2006 (unless the period ended before that date in accordance
with subsection (12)).
(18) For the purposes
of subsection (17)—
"prescribed notice" means a notice that purported to be a notice of immediate
licence disqualification or suspension under this section and that was given
to a person before 27 June 2006, other than a notice that specified,
as the offence to which the notice relates, an offence described in
subsection (1)(c) or (d).
(19) If the
Commissioner of Police is satisfied that a notice of immediate licence
disqualification or suspension under this section should not have been given
because—
(a) the
notice has been given to a particular person in error; or
(b) the
notice is defective; or
(c)
there is other proper cause for which the notice should not have been given,
the Commissioner may authorise the withdrawal of the notice.
(20) A withdrawal
referred to in subsection (19) is effected by giving notice of the
withdrawal, in a manner and form determined by the Commissioner, to the person
to whom the notice of immediate licence disqualification or suspension was
given.
(21) The notice of
withdrawal must specify the reason for withdrawal.
(22) If a notice of
immediate licence disqualification or suspension under this section is
withdrawn, the Commissioner of Police may, if satisfied that there are proper
grounds to give a fresh notice of immediate licence disqualification or
suspension to any person, give such a notice.