Auckland Traffic Lawyer

Avoid a Conviction

The Sentencing Act 2002 gives the Court the power to discharge an offender without convicting them, so that person avoids a criminal record.

It has the same effect as an acquittal. 

A discharge without conviction is part of the sentencing process and can only be made if you are found guilty or plead guilty. 

If you plead not guilty, and after the trial are found guilty, you still have the opportunity to avoid a criminal conviction.

This is because the process followed is separate and distinct from the trial process and the dismissal provisions of the Criminal Procedure Act 2011. 

However, a Judge is less likely to discharge an offender without convicting him or her when the charge has not been admitted ie you denied the charge and pleaded not guilty.

The court has a discretion to discharge without conviction and statutory test is has to be satisfied first.

Once the test is satisfied, each case will depend on its own facts. 

 Call An Expert Criminal Lawyer (09) 213 9983 Today.

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Drink Driving Lawyer

Unless the court is required to impose a minimum sentence, anyone who has pleaded guilty or has been found guilty can apply including people who have entered a guilty plea to a drink driving charge, careless driving, dangerous driving and other criminal charges.

The Land Transport Act dictates that driving a motor vehicle over the limit carries a mandatory disqualification or loss of drivers license.

Case law is tending currently leaning towards deciding that disqualification from driving is not a minimum sentence.

Where a minimum sentence must be imposed, then the court must impose it and you cannot apply for a discharge without a conviction.

The Land Transport Act states that people that drive over the alcohol limit must be disqualified from driving ie that Act imposes a minimum period of loss of drivers license.

The good news for drink drivers or those that have pleaded guilty to a drink driving offense is that despite the above statement in the Land Transport Act, a mandatory disqualification is no longer considered to be a minimum sentence. This was due to a new law or rather the old law being amended (changed).

Under the prior law and section 19 of the Criminal Justice Act 1985 , which has since been repealed, a discharge was not available to drink driving charges due to the requirement to impose a minimum “penalty”.

Motor vehicle confiscation and licence disqualification were judicially perceived as a “minimum penalty” under that old law.

The change of law has now paved way for drink driving offenders to apply for a discharge without a conviction.

Therefore, your lawyer will not need to establish “special reasons” not to impose mandatory minimum disqualification under s 81 of the Land Transport Act 1998 before an application for discharge without conviction can be applied for. 

The same applies to orders under ss 65 of the Land Transport Act which requires indefinite disqualification, and 65B which requires a zero alcohol licence to be imposed. 

As a side, a zero alcohol licence must be held for 3 years and means you cannot drink any alcohol while driving.At the end of the three year period, the zero alcohol licence will expire and you will become unlicensed. You will have to reinstate to a standard driving licence if you wish to continue driving.

To do this you have to apply at a driver licensing agent, pay the reinstatement fee of $66.40, and complete the administration requirements and have a new standard drivers licence issued before you can start driving again.

There are also provisions requiring mandatory orders and notices with regards to motor vehicle confiscation under subsections 129 and 129B of  the Sentencing Act.

However these mandatory orders such as confiscating the motor vehicle being driven by the drunk driver do not automatically prevent a drink driving offender from obtaining a s 106 discharge without  a conviction.

Discharge less likely where offender has not pleaded guilty.

In the High Court case of Amarasekera v Police it was considered that it would be “extraordinary” for “a judicial concession to human fallibility to be accorded in a case where fault has not been accepted by the offender”. 

Basically what that means is that only in exceptional cases will the Court discharge you without a conviction if you plead guilty.

Road Rage 

Although ss 106 and 107 prima facie apply to every offence (except where there is a minimum sentence) the courts have held that a s 106 discharge is not appropriate for some types of offending including road rage.

The Court of Appeal in the 2002  R v Leat case held that there can be no justification for discharging an offender without conviction where there was deliberate violence, even for a single blow for road rage incidents.

Call An Expert Drink Driving Lawyer Ph  (09) 213 9984 Today.

Drink Drive Lawyer

Drink-Drive-Lawyer

Do you lose your licence for drink driving ?

The short answer is yes you will lose your license to drive usually.

Usually but not always because a good lawyer will have knowledge and experience with the following additional legal ways to avoid losing your driving license even after you have pleaded guilty to a traffic offense under the Land Transport Act.

SECTION 81  SPECIAL REASONS

The first exception is covered in section 81 of the Land Transport Act. If a Judge finds special reasons to exist they can refrain from disqualifying you from driving a motor vehicle or reduce the length of your disqualification.

This applies even if you are facing a drink driving charge which carries a mandatory disqualification.

For section 81 to be triggered, your lawyer must persuade the Judge that special reasons exist relating to the offence. Special circumstances relating to you, the offender are not considered under this section of the Land Transport Act only those relating to the offence.

For example if you travelled out of Auckland to a remote area with no cell phone and an emergency happened and you had to drive someone to the nearest hospital. Those are reasons relating to the actual offense itself.

The fact that you just went through a divorce, just lost your job ad were growing your sorrows are circumstances relating to you and are not taken into account by the Judge under section 81.

COMMUNITY WORK IN LIEU

The second exception is section 94 of the Land Transport Act which allows the court to order you to perform community work instead of disqualifying you from driving a motor vehicle.

To be eligible under this provision you must have been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence. It doesn’t mater how long ago it was as long as you have at least once been disqualified from holding or obtaining a driver licence.

Unfortunately section 94 subsection (4) of the Land Transport Act prevents a Judge from substituting community work instead of disqualifying you from driving if an interlock device sentence has been ordered, or you are prohibited from applying for a limited driving licence.

Click Here to Find out more about Alcohol Interlock Devices

We recommend you  check with a traffic lawyer to see whether or not you are eligible to apply for a limited work licence.

Additionally, your lawyer will also need to be able to persuade the Judge that:
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) you the driving offender attends a suitable programme.

When deciding whether or not to substitute community work instead of disqualifying you from driving, the court must take into account the gravity of the offence.

In other words the Judge will take into account how serious the offence was, so for example if you drove drunk, had a car accident and put a few people in Middlemore hospital as a result of your drunk driving, then that would be far more serious than a simple drink driving offence where you were stopped at a police check point.

The Judge will also need to be sure that you, the driving offender would otherwise have been liable to disqualification from holding or obtaining a driver licence. So if you if you have been convicted for drink driving then all drink driving charges make you liable for loss of your driver’s licence.

Your lawyer will then have to put forward arguments that it would be inappropriate to order that the driving offender be disqualified from holding or obtaining a driver licence.

Your lawyer will or should make submissions to the Court regarding the circumstances of the case, and point out all the factors in your favour.
For example there was nothing untoward in your driving that attracted the attention of the police.

Your lawyer should also draw to the Court’s attention personal circumstance of the driving offender, for example you live out in Whitford where there’s no bus route and you need to be able to drive to pick the children up from school as you are the only one in the household with a full driving license.

Call An Expert Drink Driving Lawyer Ph  (09) 213 9984 Today.

There are a number of other matters that the Court will also take into which your lawyer needs to be aware of to successfully persuade the Judge and for that reason we highly recommend you call a specialist Traffic Lawyer.

Limited Work Licence Lawyer 

There are a number of lawyers and those that are not a qualified lawyer offering work licenses also know as a limited licence.

The quality of work is likely to be reflected by the costs charged for the application for your limited (work) licence application.

If the application is unsuccessful you will have to wait three months before you can  reapply and try again.

Drink Driving Defense Tips

This information could help you win a drunk driving investigation.

The police are legally allowed to pull you over for any traffic law breach so if you speed, or don’t come to a complete stop at red light or stop sign, if you run a red light, if you commit any violation of the traffic regulations, police officers can stop you.

They can stop you, and that in turn could lead into a DUI Driving Under The Influence investigation.

Even if you think the reason you were stopped is pitiful, this is not the time to start arguing with the officer because this could result in you being poorly treated, and getting charged with as many other charges the officer can find.

If the police indicate for you to pull over, such as red and blue flashing lights but you don’t feel its immediately safe to do so and are looking for somewhere to park, we recommend you turn your emergency lights on if you keep driving until you find somewhere safe to stop.
This is at least shows the police that you’re not trying to escape.

As soon as you have stopped try to have your driver’s license handy because if you are seen fumbling around the officer might think that you are trying to hide something like drugs.

More likely than not the officer will ask you if you have been drinking.
A clever cop will ask you how much you’ve had to drink to make it sound like they miraculously already know that you’ve been drinking and you just need to tell him/her how much.

Now if you say one or two beers, or something like that, you have just unwittingly made an admission that you have been driving after consuming alcohol.

Now the police officer can run you through a series of tests to see if you can be arrested and charged for driving a motor vehicle with excess breath alcohol.

Now you do have to tell the police your name, date of birth, occupation and address if you’re driving and are asked, because it is a licensed activity, but other than that, keep your answers short and sweet.
If you are asked “Do you know why I pulled you over” just say no instead of answering the question.

A lot of people unknowingly admit to violating the traffic laws by answering police questions and giving them answers like yeah I ran a red light, or yeah I was speeding.

We hope you have found these tips useful.

If you have been charged and summons to Court and need an Expert Drink Driving Lawyer Phone  (09) 213 9984 Today

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Drink Driving Avoid Loss of License

The following covers more legal ways to avoid being disqualified from driving even after you have pleaded guilty to a traffic offense under the Land Transport Act.

SECTION 81  SPECIAL REASONS

The first exception is covered in section 81 of the Land Transport Act. If a Judge finds special reasons to exist they can refrain from disqualifying you from driving a motor vehicle or reduce the length of your disqualification.

This applies even if you are facing a drink driving charge which carries a mandatory disqualification.

For section 81 to be triggered, your lawyer must persuade the Judge that special reasons exist relating to the offence. Special circumstances relating to you, the offender are not considered under this section of the Land Transport Act only those relating to the offence.

For example if you travelled out of Auckland to a remote area with no cell phone and an emergency happened and you had to drive someone to the nearest hospital. Those are reasons relating to the actual offense itself.

The fact that you just went through a divorce, just lost your job ad were growing your sorrows are circumstances relating to you and are not taken into account by the Judge under section 81.

COMMUNITY WORK IN LIEU

The second exception is section 94 of the Land Transport Act which allows the court to order you to perform community work instead of disqualifying you from driving a motor vehicle.

To be eligible under this provision you must have been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence. It doesn’t mater how long ago it was as long as you have at least once been disqualified from holding or obtaining a driver licence.

Unfortunately section 94 subsection (4) of the Land Transport Act prevents a Judge from substituting community work instead of disqualifying you from driving if an interlock device sentence has been ordered, or you are prohibited from applying for a limited driving licence.

Click Here to Find out more about Alcohol Interlock Devices

We recommend you  check with a traffic lawyer to see whether or not you are eligible to apply for a limited work licence.

Additionally, your lawyer will also need to be able to persuade the Judge that:
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) you the driving offender attends a suitable programme.

When deciding whether or not to substitute community work instead of disqualifying you from driving, the court must take into account the gravity of the offence.

In other words the Judge will take into account how serious the offence was, so for example if you drove drunk, had a car accident and put a few people in Middlemore hospital as a result of your drunk driving, then that would be far more serious than a simple drink driving offence where you were stopped at a police check point.

The Judge will also need to be sure that you, the driving offender would otherwise have been liable to disqualification from holding or obtaining a driver licence. So if you if you have been convicted for drink driving then all drink driving charges make you liable for loss of your driver’s licence.

Your lawyer will then have to put forward arguments that it would be inappropriate to order that the driving offender be disqualified from holding or obtaining a driver licence.

Your lawyer will or should make submissions to the Court regarding the circumstances of the case, and point out all the factors in your favour.
For example there was nothing untoward in your driving that attracted the attention of the police.

Your lawyer should also draw to the Court’s attention personal circumstance of the driving offender, for example you live out in Whitford where there’s no bus route and you need to be able to drive to pick the children up from school as you are the only one in the household with a full driving license.

Call An Expert Drink Driving Lawyer Ph  (09) 213 9984 Today.

There are a number of other matters that the Court will also take into which your lawyer needs to be aware of to successfully persuade the Judge and for that reason we highly recommend you call a specialist Traffic Lawyer.

Drink-Drive-Lawyer

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