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.
If you need advice on motoring matters please email
e.patterson@
pattersonlaw.co.uk or call us on 01626 359800 for free legal advice.
Q
I have currently got 12 points on my licence for sp30 reasons. I still have my licence because I won my court case on a hardship plea, so I was able to keep driving. I have recently been
caught on my phone by what I believe is a cyclist who came up to my car with a headcam and sent it to the police. I don’t think he got my face, but I don’t think that matters, but if I take this do I get an awareness course as I have never been caught on my phone. If not, I will then get 18 points and lose my only income as I work for a courier company. I was wondering if there’s anything that can be done.
A
Unfortunately, there’s no course available for using a phone whilst driving. It’s possible you may receive a conditional offer through the post. But there’s no way of knowing other
than to sit and wait I’m afraid. Driving whilst using a mobile telephone does not necessarily require you to be stopped and cautioned, it is entirely possible for somebody to see you committing the offence and simply post something later down the line.
If you are to receive anything, it’ll be a ‘Conditional Offer of a Fixed Penalty’ and will offer you the opportunity to take six points and a £200 fine instead of going to court. It should come through within the next four or five weeks, although the strict time limit is within six months.
If you do get anything, you will be unable to accept the fixed penalty offer. You can only accept a fixed penalty if doing so would leave you on less than 12 points. If accepting it would put you on 12 or more, that puts you at risk of a six-month disqualification which the police cannot impose, and so automatically, even if you tried to accept it, this case will proceed to court.
At court, the only way of avoiding a ban would be to present a second exceptional hardship argument. But, the law only allows one hardship argument to be presented every three years on the same grounds,
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so we would have to find different grounds upon which to present this one. It is never easy.
Q
I was breathalysed on a private camp site and was found to be three times over the limit. The camp site has three access roads all of which are manned by security men and have electric
gates. There is no public access and only members can gain access by using a key fob to get in or a passcode for the gates, which are closed 24 hours per day and the site is patrolled 24 hours per day.
My argument is that I wasn’t driving at the time of arrest. I was sitting in my car playing music and that as it is private land, I could be as drunk as I want. What do you think?
A
On the face of it, it sounds like private land. An offence of drink driving can only be committed ‘on a road or other public place’. A public place is a place to which the public
have access. If the roads are gated and manned, we can argue that they public do not have access.
Whether land is public or not is always an interesting topic. Ultimately, it depends on the facts of each specific case. There is no hard and fast rule as to what constitutes public or private land. Ownership is one factor but not the defining one.
The first point to look out is the offence wording itself. Some offences, for example driving whilst using a mobile telephone or speeding, can only be committed on a road. Other offences such as driving without insurance or drink driving can be committed on a road or other public place. A public place is deemed as a place to which the public have access.
I will give you an example. A McDonald’s drive through: clearly a drive through is a public place (as the general public have access), but it is not a road. So, an offence of driving whilst using a mobile telephone cannot be committed at McDonald’s, yet an offence of drink driving can.
Taking it one step further, you must examine exactly what a public place is. As above it is defined as a place to which the general public have access. So, there are lots of criteria to consider; for example whether there are any barriers to entry, whether there are signs indicating that parking is prohibited or restricted, the ownership of the land, whether the general public utilise access even if they’re not supposed to.
OCTOBER 2022 PHTM
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