I am facing prosecution for drink driving but am defending the charge and am hoping to be found not guilty. The trial is not until next January 2009
I understand that the minimum ban would be for 12 months if I am convicted. However, I am also facing a totting up situation with a stupid mobile phone offence taking me to 12 points. (I have now bought a hands free kit!) I am pleading guilty to this offence and am due to appear in court for this in November 2008 when I will be arguing that I shouldn’t be banned under the totting up rules. If the worst were to happen and I receive a ban in November, I think it would be for 6 months although some people have told me this is also a 12 month ban. Which is it?
If I get banned under the totting up rules and am then convicted of drink driving even though I know I am not guilty, would the two bans run side by side or after one another? I know I shouldn’t be pessimistic but would prefer to prepare for the worst and know whether it would be worth appealing the drink drive conviction, if I already have a ban for the totting up. Your guidance would be appreciated.
A Firstly, there are a lot of issues to be addressed here so I think it would be useful to break them down into different headings. Also, if you are not already represented, I would suggest you seriously consider seeking legal representation in matters such as these as your chances of acquittal and success would be much improved. Geoffrey Miller Solicitors offer a free initial consultation and I would be happy to discuss your case with you personally if you are interested in the possibility of engaging us to assist.
1. TOTTING UP MOBILE PHONE OFFENCE
The first issue to be considered is the length of your potential ban under the “totting up” rules and how you may go about saving your licence for the mobile phone matter. Section 35(2) of the Road Traffic Offenders Act 1988 deals with the “totting” provisions which are relevant to your mobile phone offence. If someone amasses 12 points or more within a 3 year period from date of offence to date of offence, then they should be disqualified for no less than the minimum of 6 months unless the court is satisfied that, in light of their circumstances, there are grounds for mitigation to impose a disqualification shorter than the 6 month period or no disqualification at all. The only instance where this disqualification would be more than 6 months is dealt with under s.35(2)(b). This outlines the provision for a 12 month ban to be applied if you have previous disqualifications in your driving history of 56 days or more (anything less than 56 days does not count) within 3 years of the latest offence. If there are two or more previous disqualifications then the ban would be for two years.
In order to avoid being disqualified as a “totter”, you can put forward an exceptional hardship argument. In this situation, you would need to demonstrate to the Court that imposing a disqualification will have a dramatic impact on you or innocent third parties i.e. your employer, family members who depend on you to drive etc. If such an argument is successful then the penalty points for the offence will still be endorsed on your licence, but you avoid a disqualification and can continue to drive.
It is important to remember however that if this were to happen, you will likely be driving around with 12 points or more on your licence. An exceptional hardship argument can only be used once in any 3 year period. Therefore, if you commit any further endorsable offences then you will more than likely be disqualified as a “totter” for at least 6 months. The only way exceptional hardship can be used twice within 3 years is if each argument focuses on something completely different than what is registered at Court on the first incident. If you are successful at exceptional hardship then the court will record the reasons why you were successful. For example if you argue that disqualifying you from driving will mean your employer suffers, then the court will mark this on the court register as the reason hardship was found. If you put forward another argument then it needs to be relating to something completely separate from your employer. The Magistrates impose very strict criteria with exceptional hardship arguments so it is vital for the evidence presented of the hardship experienced by you or others is clearly in the class of what would be accepted as exceptional.
In some circumstances, mainly relating to speeding offences, there may be the opportunity to request that the Magistrates impose a disqualification based on the offence itself, rather than on how many points are on the Defendant’s licence. Some speeding offences attract a disqualification of between 7-56 days OR penalty points. If imposing penalty points means the Defendant would then have 12 points or more, the Magistrates should first consider the shorter term ban (s.34(2))before “totting” as was decided in Jones v DPP in 2001.
In order to avoid being disqualified as a “totter”, you can put forward an exceptional hardship argument.
2. ALCOHOL RELATED:
You mention you are facing prosecution for an alcohol offence. If convicted, the length of disqualification is determined by your alcohol readings either in breath, blood or urine along with other factors that could be seen as aggravating or mitigating such as failure to co-operate with the police, or examples of bad driving. However there will always be at LEAST a 12 month disqualification imposed for any excess alcohol offence. If you have committed a previous alcohol related offence in the past 10 years then this minimum period is automatically increased to 3 years.
3. DRINK DRIVERS REHABILITATION COURSE (DDRC)
There is opportunity for such a disqualification to be reduced which is dealt with in s.34(a) of this Act. The Magistrates may offer you the opportunity to complete the Drink Drivers Rehabilitation Course (DDRC). If you accept an offer of a rehabilitation course and proceed to complete the course to a satisfactory standard by the date specified by the Court when your sentence was imposed, your period of disqualification will be reduced, usually by 25 per cent.
If the reduction to the ban is to take effect, the offender must accept the offer of the rehabilitation course whilst at court for sentencing and must agree to bear the cost of the course. Attendance at the course in a sober state is mandatory and it is only once the course has been completed to the satisfaction of the course provider that the court will be notified and in turn, DVLA will be informed and will reduce the period of the ban. If a course provider refuses to certify the course as being satisfactorily completed, it is possible to appeal this to the supervising court.
The idea behind the course is to make an offender consider their alcohol consumption when driving with more care. It is usually an informal course that involves various activities, videos, quizzes and discussion. The course is intended to educate offenders about various issues such as alcohol limits in men and women and the different rates of absorption.
4. HOW THE DISQUALIFICATIONS WOULD RUN
If you receive two or more disqualifications from driving that effectively overlap then they will not be added together so that you are banned for a total of 18 months. If banned from driving in November for 6 months and then banned again in January 2009 for 12 months you will likely be disqualified from driving until at least January 2010.
A period of disqualification runs from the moment that it is announced by the Court. Any outstanding disqualification ends as soon as a new one is imposed; they do not run concurrently.
Do you have a legal question concerning driving in the UK? E-mail us at firstname.lastname@example.org for an answer in this column by Jeanette Miller.
Jeanette Miller is a senior partner in Geoffrey Miller Solicitors, who specialise in Motoring Law and who can be found at www.motoroffence.co.uk