We can advise on whether the prosecution evidence is strong enough to prove a case against you and represent you at trial on a not-guilty plea. If the evidence is strong enough to warrant a guilty plea we can represent you at sentence to present mitigation with a view to obtaining the minimum penalty and preserving your driving licence. We are conscious that any points on your licence will result in higher insurance premiums.
COMMON MOTORING OFFENCES
- What is the penalty if I am convicted
- Will I go to prison?
- Will I lose my driving licence?
Drink driving (driving with excess alcohol)
This is a strict liability offence – if you are found to be over the legal limit you are guilty of the offence. There is no defence.
The penalty can be a fine, community order or prison according to the level of alcohol recorded. The usual test is by way of a breathalyser procedure at the police station following a roadside preliminary breath test, although sometimes tests are carried out on urine or blood.
If you record a level of 120 in breath, 276 in blood or 367 in urine you would face a prison sentence as the custody threshold is passed. The maximum penalty is 6 months; this can be suspended according to the mitigation put forward.
There is a mandatory period of disqualification from driving of at least 12 months if convicted of driving with excess alcohol, which means the Magistrates have no choice but to impose a ban unless special reasons not to disqualify can be shown. Please refer to the section on special reasons for further information.
If you have a previous conviction for a similar drink drive offence within the past 10 years, the minimum period of disqualification will be 3 years
You can reduce the period of disqualification by agreeing to complete a Drink Awareness Course. It has to be completed at your own expense within a time frame directed by the court. If completed as directed you can reduce the ban by one quarter.
Drunk in Charge
This is where you are not actually driving but deemed to be in charge of a vehicle, i.e. had control over it, and are over the limit. It is for the prosecution to prove beyond reasonable doubt that you are in charge. If you are sitting in the driver’s seat with the keys in the ignition it is highly likely that the Court will find you to be in charge of the vehicle.
There is a statutory defence if it can be shown that there was no likelihood of you driving that vehicle whilst over the limit.
As with driving with excess alcohol, there is a range of sentencing according to the level of alcohol in the blood from a fine to imprisonment. If you are over 120 on breath the sentencing range is from a low level community order to 6 weeks imprisonment, the maximum being 3 months.
Disqualification from driving is not mandatory, unlike driving with excess alcohol, but there is a discretion to disqualify according to the level of alcohol. At the lowest level you will receive 10 points on the licence. Between 60 and 119 the Magistrates can either impose 10 points or disqualify you. If you are over 120 on breath there will be a period of disqualification between 6-12 months rather than penalty points.
Special Reasons not to Disqualify
The only way to avoid the mandatory period of disqualification if convicted of driving with excess alcohol is if ‘special reasons not to disqualify’ are found by the Magistrates. You would still be guilty of the offence and subject to the penalties outlined previously, but can avoid disqualification. A ‘special reason’ not to disqualify having driven over the limit must be:-
- A mitigating or extenuating circumstance
- Which does not in law amount to a defence
- Which is directly connected with the commission of the offence (rather than connected to the offender) and
- Is something that the Magistrates/Court ought properly to take into consideration when imposing sentence
Some examples of special reasons not to disqualify are:-
- Spiked drinks or where the driver was not knowingly aware of having consumed alcohol
- Driving out of absolute necessity/emergency where there was no alternative; eg to escape immediate unlawful violence such as armed robbery/car jacking where there was no other way of getting away quickly enough to avoid injury, driving to take someone with life-threatening injury/illness to hospital when there really was no other transport or person available to do so
- Driving a very short distance in circumstances where you were unlikely to be brought into contact with other road users, eg to move a vehicle left in a dangerous position that could cause an accident when there was nobody else around who could have moved it
Each situation will turn on its own facts. If special reasons are raised at the time of plea the matter will be set down for a ‘mini-trial’ at a later stage where you and any other witnesses will have to give evidence as to the reason for driving when over the limit.
Special reasons do not include mitigating factors connected to the offender. You cannot argue special reasons not to disqualify because you will lose your job if you lose your licence. That reason is connected with the offender, not the commission of the offence.
Failure to provide a specimen for analysis
If the police are investigating whether an offence of driving with excess alcohol or being drunk in charge has been committed there is a legal requirement for you to provide a specimen for analysis, even if you dispute being the driver. By failing to provide a specimen when requested to do so you commit an offence unless it can be shown that you had ‘reasonable excuse’. Once that defence is raised it is for the prosecution to disprove it.
Reasonable excuse can be a physical inability to produce a specimen, eg bronchitis or asthma if requested to produce a specimen of breath, haemophilia if blood is required. The inability should be communicated to the officer conducting the case, although not raising it does not preclude the defence at a later stage. If the matter goes to trial medical evidence will have to be provided of the inability. The breathalyser procedure is video-recorded and often the prosecution will maintain that the defendant is deliberately being obstructive or pretending they cannot produce a specimen rather than having actual difficulty due to illness. The degree of bronchitis or asthma has to be extremely bad not to be able to provide a specimen of breath. Religious belief against providing blood has been held not to be a reasonable excuse.
Like the offence of driving with excess alcohol, this offence carries a mandatory period of disqualification from driving of at least 12 months if you fail to provide a specimen and were driving the vehicle, whereas if you were in charge of a vehicle there is a discretion to impose points rather than disqualify, according to the circumstance of the offence. If there is a deliberate failure or refusal to provide a specimen when there is evidence of serious impairment whilst driving the starting point for sentence is a 12 week custodial sentence and 29-36 months disqualification from driving.
If you accrue 12 points on your driving licence within a 3 year period you stand to be disqualified from driving for a period of at least 6 months unless there are mitigating circumstances not to disqualify or to disqualify for a shorter period. The most usual and often the only one the courts will consider is that of ‘exceptional hardship’. This is over and above ‘ordinary’ hardship. The loss of employment because of loss of your driving licence of course causes hardship, but one is more likely to be successful in arguing exceptional hardship if it can be shown that other innocent parties will suffer as a consequence of losing your licence. Examples would include where you are the sole breadwinner for the family and with loss of income through loss of licence the mortgage could not be paid and the home would be lost, causing hardship for the rest of the family who are innocent parties. Special reasons might be found if you were the sole carer and transport provider for an invalid and absolutely no other person could provide that care and transport.
The show special reasons not to be disqualified, you would have to give oral evidence of the exceptional hardship at a court hearing and present any supporting evidence of the hardship.
If exceptional hardship is found by the Magistrates and you are not disqualified from driving having accrued 12 points, you would not be able to argue the same circumstances of exceptional hardship to avoid disqualification by totting in the subsequent 3 years.
If you are disqualified from driving as a totter all points are wiped from your licence, so when you receive a new licence after the period of disqualification you start again with a clean slate. For some people this is preferable to having points on the licence which remain there for 3 years for the purposes of totting.
This is not an imprisonable offence; the penalty is a fine and either points or a period of disqualification. However, if your speed is so high as to be considered dangerous you could well be charged with dangerous driving, which is an imprisonable offence.
The penalty for speeding is decided according to the speed you were doing within the zone. At certain levels the Magistrates have a discretion either to impose points or disqualify for a period of between 7 and 56 days. Some people prefer to have a short period of disqualification so they do not have points on their licence which remain there for the purposes of totting for 3 years.
Driving without due care and attention
The test for this offence if whether the driving fell below the level of that expected for a careful and competent driver. It is not an imprisonable offence.
The penalty is a fine and endorsement of penalty points upon the licence. However, there is a discretionary power for the Magistrates to disqualify if the driving was such that it was bordering on the dangerous. A momentary lapse of concentration or misjudgement at low speed would attract a Band A fine (based on 50% of net weekly income) and 3-4 penalty points. Loss of control due to speed or carelessly turning right across oncoming traffic – Band B fine (100% of net weekly income) and 5-6 points on the licence. If the driving is such that it borders on the dangerous or there is an overtaking manoeuvre at high speed causing a collision the penalty is a Band C fine (150% of net weekly income) and the Magistrates can disqualify you from driving. If they are persuaded not to disqualify you then they must impose 7-9 points on the licence.
The test for dangerous driving is whether the driving fell well below the level expected for a competent and careful driver (rather than below the level, which is the test for driving without due care and attention). The offence is often charged when there has been excessive speed or deliberate disregard for the safety of other road users, particularly in built up areas and busy roads.
It can be dealt with either in the Magistrates Court or the Crown Court according to seriousness. It is an imprisonable offence, carrying a maximum penalty of 6 months custody in the Magistrates Court and 2 years in the Crown Court.
There are no penalty points for this offence; the Court must disqualify for at least 12 months and must order an extended re-test. When your period of disqualification is over you will not be able to drive until you have passed the re-test.
You will be disqualified for at least 2 years if you have 2 or more disqualifications for periods of 56 days or more in the preceding 3 years.
Defences to dangerous driving are difficult to run. There might be a defence of duress or necessity, i.e. having to escape from a dangerous situation where immediate death or really serious injury was imminent, where driving was the only way of escape. However, there is a duty to stop driving as soon as the danger has passed.
Failure to give information of a driver’s identify as required
This relates to you as the registered keeper of a vehicle being sent a notice by police requiring you to identify a driver of that vehicle at the time when a motoring offence was committed. Two notices will be sent. This is usually after the vehicle has been caught speeding by a traffic camera which records the number-plate, but other times it can be by public reporting of the number-plate of a vehicle that leaves the scene of an incident.
There is a legal requirement to respond to the notice and identify the driver. If the prosecution can show a certificate of service by posting of the notice to the last known address (which will be the address on the registered keeper’s log book) it is deemed served upon you until the contrary is proved. It is rare for the notices to be sent by registered or recorded delivery but if they are then there is an irrebuttable presumption of them being delivered.
People usually go to trial to contest that they never received the notice and therefore could not return it, or that they received it and returned it with the required information identifying the driver. You will have to give oral evidence at court. There is also a defence to the charge that you did not know or could not ascertain with reasonable diligence who was driving at the time of the offence.
This is a non-imprisonable offence but it does carry a fine and 6 points on the licence.
Failure to stop and report after an accident
This offence is imprisonable if there is evidence of serious damage/injury and/or evidenced of bad driving leading to the accident.
There is a duty to stop and exchange details after a road traffic accident if there is damage or injury to a third party (i.e. not your own vehicle or yourself). If for any reason details are not exchanged at the scene where the other party has suffered injury or damage then there is a legal requirement to report the accident to police within 24 hours. If there is no injury or damage to a third party there is no requirement to report.
There is a defence if you were not aware that an accident had happened. This sometimes occurs with large vehicles/lorries where they have collided with a third party but the driver has not realised.
If there is minor damage/injury or you stopped at the scene but failed to exchange details or report the accident the penalty is a fine and 5-6 points. If there is moderate damage/injury and you failed to stop or report the penalty is also a fine and 7-8 points on the licence or disqualification from driving. Where there is serious damage/injury and/or evidence of bad driving you could face a prison sentence and either disqualification from driving for 6-12 points or 9-10 points on the licence.