Criminal Defence Specialists
Alcohol Related Offences
Drink drive and drunk in charge of a motor vehicle-s5(1) Road Traffic Act 1988
The offence relates to driving, attempting to drive or being in charge of a motor vehicle whilst being over the prescribed limit.
Drink drive limits
Breath: maximum of 35 micrograms of alcohol in 100ml of breath
Blood: maximum of 80 milligrams of alcohol in 100ml of blood
Urine: maximum of 107 milligrams of alcohol in 100ml of urine
As regards drink driving, it would be a defence to show you were not the driver, or you were not driving on a road/public place. Duress and automatism could amount to a defence as would the use by police of unreliable equipment or if you were to show that alcohol was consumed after driving the vehicle. (The hipflask defence).
Special reasons can be argued as to why, although guilty of drink drive, you should not be disqualified. The reasons must be specific to the offence and not the driver’s personal circumstances. Legal advice should be sought.
Sentence-max fine £5,000 and/or 6 months imprisonment. Mandatory 12 month minimum disqualification but this increases to 3 years if offence is your second alcohol related driving offence in the last 10 years.
Drunk in charge of a motor vehicle
The question here which will relate to the circumstances of each individual offence is whether the defendant is ‘in charge’ of the vehicle. There exists the statutory defence of where the defendant must prove that there was no likelihood of his driving whilst above the drink drive limit.
Sentence-max fine £2,500 and/or 3 months prison. May disqualify, if not impose 10 points
Fail to provide a specimen-s7(6)-(7) Road Traffic Act 1988
The question here is whether a defendant had a ‘reasonable excuse’ not to provide a specimen. This must relate to an inability due to physical or mental health issues. In order to rely on this defence, evidence from a medical expert will almost certainly be required.
Sentence-is as above dependent on whether ‘driving’ or ‘in charge’.
Driving whilst disqualified/Causing death whilst driving when disqualified
Driving whilst disqualified-s103 (1) Road Traffic Act 1988
A person is guilty of an offence if whilst disqualified from holding or obtaining a licence he obtains a licence or drives a motor vehicle on a road.
This is considered a very serious offence and can attract a custodial sentence. One aggravating feature is the disregard shown to a court order. It is not necessary for the prosecution to prove that the driver was aware that he was disqualified and the incorrect belief that he was not driving on a road is not a defence, although both would amount to good mitigation. The prosecution must prove that the defendant is disqualified from driving. Often a defendant will have admitted the same on being confronted by a police name check. Other methods of identification are fingerprint checks and evidence of a person present in court at the time of the conviction to identify the defendant. This is a serious offence and a solicitor should be instructed.
Sentence-6 months imprisonment and/or level 5 fine. May further disqualify or impose 6 points
*If the prosecution are relying purely on the matching of personal details of the defendant with the convicted person, this is a complex area of law and legal advice should be sought
Causing death whilst driving whilst disqualified-max sentence 2 years imprisonment. There is some fault required on the part of the driver
Driving without Due Care and Attention/Careless Driving/Dangerous Driving/Fail to Stop or Report an Incident
Driving without due care and attention or careless driving-s3 Road Traffic Act 1988
The offence is committed if the way a person drives falls below what would be expected of a competent and careful driver. Further, the offence is committed if a person drives without reasonable consideration for other persons but only if those persons are inconvenienced by that driving. As stated, the driving only has to ‘fall below’ what would be expected of a competent and careful driver. This is therefore a relatively easy offence for the prosecution to prove. However, the fact the offence attracts 3-9 penalty points or disqualification allows a court to endorse according to the degree of carelessness.
Sentence-Max £5,000 fine, 3-9 penalty points or may disqualify
*NB-The more recent offence of causing death by careless driving attracts a maximum 5 year prison sentence and if investigated or charged with this offence legal advice should be sought immediately.
Dangerous driving-s2 Road Traffic Act 1988
This offence is committed if the way a person drives falls FAR below what would be expected of a competent and careful driver and it would be obvious to such a driver that driving in that way would be dangerous. A driver can also be prosecuted for this offence if driving a vehicle in its current state would be dangerous. This is a serious offence often attracting a custodial sentence and legal advice should be sought immediately.
Sentence-Max 6 months in the Magistrates’ Court, 2 years in the Crown Court and/or £5,000. Minimum 12 month disqualification and the court must order and extended re-test.
**NB-Causing death by dangerous driving. This is an extremely serious offence carrying a maximum sentence of 14 years imprisonment and legal advice should be sought immediately.
Fail to stop/fail to report an accident-s170 Road Traffic Act 1988
Following an accident which results in personal injury to another or damage to another vehicle or property on the road the driver must stop and provide his name and address and that of the vehicle owner and the vehicle identification marks. If not the driver must report the accident. If injury results the driver must produce his insurance certificate.
An accident must be reported or an insurance certificate produced at a police station as soon as reasonably practicable and within 24 hours. A defence could be that the driver was not aware of an accident, he was not the driver or it was not a public place.
Sentence-Max fine £5,000, 6 months imprisonment and 5-10 penalty points
Using a mobile phone-s41D Road Traffic Act 1988
The offence relates to using a mobile phone whilst driving on a road and this would include sitting at traffic lights or a traffic jam. ‘Using’ means performing an interactive communication function so texting, faxing and internet use, as well of course as speaking on your phone would make you liable. The offence is likely to be dealt with by way of fixed penalty of £60 plus 3 points but the matter could go to court.
A mobile phone can be used in a genuine emergency whilst driving if it is not practicable to stop. If you are accused by the police of using a mobile phone whilst driving but you deny this, you have the right to take the case to court and a trial will be held. Call us now for advice.
Sentence-Max fine £1,000, 3 penalty points or discretionary disqualification
We can attend courts and police stations in London, Essex, Kent, Surrey, Sussex, Hertfordshire
Speeding-s89 Road Traffic Regulations Act 1984
Speeding is the most common driving offence and usually dealt with by way of a fixed penalty. The speed limit is often denoted by the use of signs. However, these must accord with the Traffic Signs Regulations and General Directions 2002. A failure to comply precisely could be viewed as a defence. Further, a Notice of Intended Prosecution must have been served in time. Necessity can also be a defence. Other defences include the defendant not being the driver as well as unreliable speed detection. Speed detection equipment, for example the GASTO camera, hand-held laser guns or a VASCAR device must be in accordance with Home Office approval. If such equipment can be shown to be in anyway unreliable the prosecution would have difficulty meeting the required standard of proof.
Sentence for speeding-Max Level 3 fine (level 4 if a motorway), discretionary disqualification or 3-6 penalty points.
Totting up/Application for return of licence-s35 Road Traffic Act Offenders Act 1988
A ‘totter’ is someone who has amassed 12 points or more in a 3 year period. This period runs from the date of the present offence to the date of the earliest conviction within that 3 year period. The minimum disqualification is for 6 months or 1 year if there has been previous disqualifications of 56 days or more in the preceding 3 years. Disqualification is mandatory unless exceptional hardship can be demonstrated. Thi s must amount to more than just losing your job. It is very important that you seek advice from a solicitor if you seek to avoid a disqualification as a totter.
Application for return of driving licence-s42 Road Traffic Offenders Act 1988
An application can be made to the Magistrates’ Court
-after 2 years if the disqualification is for less than 4 years.
-after one half of the period of disqualification, if it is for less than 10 years but not less than 4 years
-after 5 years if more than 10 years
It is very difficult to persuade a court to return a driving licence early. The court will look at the original offence as well as the applicant’s character since the disqualification. Legal advice should be sought.
New Drivers-Road Traffic (New Drivers) Act 1995
There is a probationary period for the first 2 years after a driver has passed his first full driving test. If 6 points or more are accumulated during this period the driving licence will be revoked and it will be necessary for a full re-test to be completed. Points carried over from a provisional licence will also count. If you have 6 points you can obtain a full licence but any further points will result in revocation.
On reaching 6 points the DVLA will automatically revoke the licence. It is then necessary to apply for a provisional licence and take the tests again. To avoid revocation, the only real options are to defend the allegation or to argue special reasons not to endorse with penalty points. In some circumstances it may be appropriate to persuade the Magistrates to impose a short ban instead. Call us now for further advice.
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