Driving while Disqualified/Suspended and Section 94 Community-Based Sentence

By Sarah Hames
Barrister

To drive whilst disqualified or to not drive whilst disqualified?

A disqualified driver may think, in the moment, that the reason to drive outweighs the risk of being caught. But, when he or she is caught the predicament will usually become a lot more stressful.

This is when we come in to help.

Driving while Disqualified

Disqualification prohibits a person from holding or obtaining a driver’s licence for a certain period of time. It is imposed at the court’s sentencing stage after a driver is found guilty, or pleads guilty, for particular traffic offences. For example, when an ‘offender’ is charged with driving with excess breath/blood alcohol.

If a disqualified person is then caught driving while disqualified, he or she has committed another offence. The court is required to impose a further ‘mandatory’ minimum period of six months disqualification upon the offender.

The new disqualification period ordered by the court then generally commences upon the expiration of the previous disqualification period.[1]

On a first or second offence of driving while disqualified, further penalties can theoretically include three months imprisonment and/or a fine of up to $4,500. If it is the third and subsequent offence, penalties include up to two years imprisonment and/or a fine up to $6,000.

For these reasons, it is clearly not worth the risk of driving while disqualified.

Section 94 can however often be used to provide relief from the harshness of “mandatory” disqualification.

Section 94 Community-Based Sentence

If charged with driving while disqualified or driving while suspended, there is hope for avoiding further disqualification.

Under section 94 of the Land Transport Act 1998, the court can exercise its discretion to impose a community-based sentence instead of mandatory disqualification. This community-based substitute was integrated to “avoid the stultifying effects of large build ups of disqualification periods in particular cases”.[2]

The court can impose a section 94 sentence if the following three preconditions are met:[3]

• You have a previous disqualification(s);
• It would be inappropriate to order disqualification having regard to the four matters listed in s 94(1)(b) (explained below); and
• It would be appropriate to sentence you to a community-based sentence.

To satisfy para (a), there is no threshold on the number of previous disqualifications required. It can even be that a singular previous offence is enough. There is no requirement for you to be “on an endless cycle of disqualification”.[4] In Tai v R, the court noted:[5]

“The [section 94] discretion is not limited in its application to offenders who fail repeatedly to honour their obligations under disqualification orders and are therefore hopeless cases. It can be applied in less serious cases where persons are facing their second offence and are liable to disqualification.”

However, a community based sentence does not apply where section 65 of the Land Transport Act 1998 is applicable. Section 65 prescribes mandatory “indefinite” disqualification for defined categories of repeat offences (involving driving with alcohol or drugs) with a previous offence having been committed within five years of the date of commission of the current offence. This gets complicated and we will be happy to explain it further to you.

To satisfy para (b) in section 94, the court must consider whether it would be appropriate to make an order of disqualification having regard to:[6]

• The circumstances of the case and of the offender; and
• The effectiveness or otherwise a previous order of disqualification made in respect of the offender; and
• The likely effect on the offender of a further order of disqualification; and
• The interests of the public.

The court considers all the circumstances, for example, the nature of the defendant’s employment and whether it is dependent upon his or her ability to drive. If the likely effect of another disqualification would be a hardship upon the defendant, loss of his or her employment and therefore the ability to support family and/or employees, then it is a good case for s 94.[7]

If you have found yourself charged with something like a repeat drink drive or driving while disqualified or driving while suspended, we can help you assess your options. We offer a free telephone assessment. Feel free to contact us on (09) 575 5111.

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[1] Section 85(3) Land Transport Act 1998.

[2] Law of Transportation (Brookers) at para LT94.01.

[3] Beeston v New Zealand Police [2012] NZHC 1064 at [12].

[4] Ibid, at [14].

[5] Tai v R [2018] NZHC 2422 at [10].

[6] Section 94(1)(b) Land Transport Act 1998.

[7] Police v Body & Others [2013] NZHC 1586.

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Information provided here should not be considered legal advice. If you think that you may be eligible for a discharge without conviction, then we recommend that you seek legal advice.  If you wish to contact us you will find our contact details below or on the ‘contact us’ page of our website