The offence of improper use of a motor vehicle is found in s 65A of the Road Safety Act 1986 (RSA). The improper use of a motor vehicle is driving a motor vehicle in a manner which causes it to undergo loss of traction by one or more of its wheels (s 65A(1)).
Penalty: Loss of traction
The penalty for driving a motor vehicle in a manner which causes one or more of the wheels to lose traction is 5 penalty units.
Licence suspension:
While licence suspension or disqualification is not mandatory for an offence against s 65A, the court has a general discretion to suspend or cancel a driver’s licence pursuant to s 28(2) of the RSA.
A charge under s 65A may also be accompanied by a charge under s 65 of the RSA for careless driving, and a charge under s 297 of the Road Rules for failing to have proper control of a motor vehicle. A careless driving charge also attracts a loss of 3 demerit points, which could mean a loss of licence if you have been charged and have only 3 points remaining on your licence.
Elements:
The behaviour police generally target when pursuing a charge under s 65A includes “burnouts”, “doughnuts”, “fishtailing” and “drifting”. However, police may charge you under s 65A even if you were not performing one of these actions. The threshold is merely that you as the driver had lost traction of at least one wheel, and that you had done so intentionally.
The police need not prove that the loss of traction you caused was intentional, only that you lost traction. Therefore, it can be difficult for you to show that loss of traction was unintentional (see Thompson v Kovacs). You should seek the assistance of a traffic lawyer if you believe you did not intentionally cause the loss of traction of your motor vehicle. They may be able to help you raise your defence in answer to the charge at court, but may also attempt to have the charge withdrawn by the prosecution without it ever having to go to court.
Defences:
Section 65A(2) creates a defence to a charge under s 65A(1) for loss of traction if the accused can prove that he or she did not intentionally cause the motor vehicle to lose traction. That is, the onus is on the defendant to show that it was not intentional. This defence is more readily proven in circumstances where the road conditions are wet or uneven. However, the road conditions alone will not determine that loss of traction was unintentional.
Under s 65A(2A), a loss of traction offence will not apply to someone who was driving a motor vehicle on land other than a highway in the course of:
- an event at an authorised motor sport venue;
- an event that is organised or sanctioned by a motoring organisation;
- a driver training program;
- vehicle testing; or
- police training.
It is important to note that “highway” means a road or road related area, so loss of traction on a road, even if on private property, could fall under the scope of the provision.
Example:
In 2010, prominent F1 driver Lewis Hamilton was pulled over by police after he had deliberately caused the loss of traction of his Mercedes sports car. Hamilton had performed a “burnout” after leaving a practice session in preparation for the Melbourne Grand Prix.
Hamilton was pulled over on Lakeside Drive, which in fact makes up part of the racetrack for the event. However, the incident did not take place “in the course of an event” that is permitted by one of the exceptions under s 65A(2A) of the RSA. While it was on the track, it was not in the course of the GP or practice.
Under the hoon offences laws, Hamilton’s Mercedes was also impounded by police. It was towed away after the incident and held in a police yard for 48 hours.
Hamilton was also summonsed to appear in court for the offence.
What this means:
The incident shows that even professional drivers are not exempt from the law if the action takes place outside one of the exceptions under s 65A. If the improper use does not occur in the course of an authorised event, they too may be charged with the offence, as well as other traffic related offences as a result of the incident. They too face a fine, and licence suspension if they hold an Australian licence.
If you have been charged with an improper use of motor vehicle offence under s 65A and/or any other traffic related offence, you should speak with an experienced traffic lawyer as soon as you can. You may lose your licence and be disqualified from driving for a significant period, and you will also be liable to a fine. Getting advice from a traffic law specialist will help you achieve the best result in court, and give you the best opportunity to stay on the road.
