Try a trifling application
We are asked practically every day questions regarding licences and what people can do to keep their licence when charged with a drink driving offence.
First there is no such thing as a working licence or a special licence, after disqualification that permits you to drive for work only. You cannot get an exemption to drive just for work. When you are disqualified, you cannot drive.
There are mandatory licence disqualifications associated with drink driving offences. This means the court's hands are tied and they must impose a minimum mandatory licence disqualification.
It is important to know there is also a difference between exceeding the prescribed concentration of alcohol (PAC) and driving under the influence (DUI). Although both are commonly known in the community as drink driving, DUI is far more serious as police allege that you are so much under the influence of intoxicating liquor or a drug that you are incapable of exercising effective control of the vehicle. The maximum penalty for a DUI first offence is a fine, or imprisonment for not more than three months. For a subsequent DUI offence the maximum fine goes up as well as the maximum term of imprisonment to not more than six months.
There are not terms of imprisonment associated with PCA offences; just fines and periods of disqualification.
In relation to PCA offences there is an exception to the mandatory minimum disqualification. The law states the minimum mandatory disqualification periods cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless "in the case of a first offence, the court is satisfied, by evidence given on oath, the offence is trifling". Then the Magistrate can reduce the prescribed minimum period to not less than one month. This is referred to as a trifling application.
As you would imagine this is a highly litigated area of the law. Licences are important to people and they are often willing to pay a lot of money to ensure they keep it.
There are therefore several cases where the courts discuss what is and isn't trifling. Most importantly the courts have not set any hard and fast rules about what may be trifling. Generally the driving will need to be atypical for the courts to find it to be trifling.
Examples of what has been found to be trifling are:
- a defendant who moved his car from one side of the car park to a better lit space while waiting for a taxi; or
- a defendant who only traveled a distance of a few metres to re-park a car that was parked incorrectly that may have caused an accident.
It is always important to seek legal advice from a solicitor experienced in criminal law and traffic offences. We recently had a client attend our office with a drink driving offence. He had sought free legal advice from another business and was told by them that there was nothing that could be done and that he would need to serve the full disqualification period.
After speaking to this client it became apparent that he had only reversed his car out of the driveway to allow someone to park in front of him. He never had any intentions of driving any further than that. We made a trifling application and the Magistrate found the driving to be trifling and reduced his 12 month disqualification to just one month.