KNOW YOUR RIGHTS
In this month’s edition we feature more road traffic issues relevant to the trade supplied by Patterson Law. These questions are based on real enquiries that we have received from professional drivers this month. If you need any advice on motoring matters please email
e.patterson@
pattersonlaw.co.uk or call 01626 359800 for free legal advice. For regular updates on road traffic law follow us on
facebook.com/PattersonLawMotoringSolicitors or
twitter.com/Patterson_law_
Q A
I am currently serving a three-year disqualification for drink driving, which was the minimum ban they could have given me as this was my second time in a few years. But I desperately need my licence back as
I cannot afford to be out of work any longer. I have done 18 months so far, so is there any way of getting my ban lifted?
You can only make an application to lift a disqualification early after: a. two years, if the disqualification is for less than four years;
b. one-half of the period of disqualification, if it is for less than ten years but not less than four years; c. five years in any other case.
So in the first instance you are six months away from being able to even make the application. But in six months time as you would have served two years of the ban, we can apply.
The application is made directly to a Magistrates’ Court which would list a hearing. When considering the applica- tion the Court will have regard to:
• The nature of the original disqualification; • The defendant’s conduct since the time of the alleged offence; and
• Any other circumstances of the case.
With this in mind, when preparing the application we will need to discuss your mitigation and personal circumstances regarding the above three points.
One sticking point could be the first; the nature of the original disqualification. You mentioned this was your second offence within a few years. You are correct in that any second offence within a ten-year period will carry a minimum three-year disqualification. Even though three years is the minimum it does not stop you from applying to get your licence back – but because the court imposed the minimum term they may be more reluctant to lift the ban early.
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We will also need to examine your conduct since the time, i.e. whether you have committed any further offences and any other work you may have been doing in the meantime.
And finally we will also examine your current personal circum- stances to try to persuade them why you cannot be out of work any longer and need your licence. It is important, how- ever, to note that it will not be enough simply to explain that you are in dire financial trouble - the court will ask why you cannot get a job that doesn’t require a driving licence and so we will need to show specifically why your driving licence is important and why it’s in the interests of justice to lift the ban.
If you call us now we can get to work early. We can make the application today and ask the Court to list the hearing in six month’s time on two years to the day since the ban was imposed – so at the very earliest possible opportunity. We then have a good six months to prepare your application in readiness for the hearing.
I currently have six penalty points on my licence and have recently received a fixed penalty for driving while being on my mobile phone. Is there anything you can do to help me; I am worried about the possibility of a disqualification and a further six points?
Q A
In the first instance you will not be able to accept the fixed penalty. You can only accept a fixed penalty if accepting it would leave you on less than 12 points, which in this case it wouldn’t. Therefore
the matter will automatically proceed to court.
At court, in the first instance I would like to see if we are able to defend you. I would like to see whether there is any evidence of you “using” a phone whilst driving. According to the current legislation, using a phone whilst driving only relates to using it for communication purposes, i.e. sending or receiving text messages, making or receiving telephone calls or accessing the internet.
The police must prove, beyond reasonable doubt, that you were using the phone for one of these purposes in order to secure a conviction. If they cannot, we may be able to defend you outright, or even agree a basis of plea with the prosecution outside of court to the lesser offence of driving whilst not in proper control of a vehicle, which carries three points rather than six and would leave you with a total of nine, rather than 12 points.
However, if that is not possible and there is clear evidence that you were not just using your phone but using it for interactive communication purposes, then the best course of action may be to enter a guilty plea and accept the six penalty points, but concentrate on presenting mitigation to try to avoid a disqualification.
JUNE 2021
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