motoring and driving offences

Motoring & driving offences

Motoring and driving offences are very common, but keeping you driving licence requires expert knowledge of the law and all the defence loopholes. 

Get the advice you need to stay on the road.

Click a section below to go to an overview of each offence with details of sentencing and loophole defences to consider. 

Contact me today to discuss your case

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1. Dangerous Driving

The offence of dangerous driving under section 2 of the Road Traffic Act 1988 is committed when a person's driving falls far below the standard expected of a competent and careful driver and it would be obvious that driving in that way would be dangerous – section 2A of the RTA 1988.

Some typical examples from court cases of dangerous driving are:

  • racing, going too fast, or driving aggressively;

  • ignoring traffic lights, road signs or warnings from passengers;

  • overtaking dangerously;

  • driving under the influence of drink or drugs, including prescription drugs;

  • driving when unfit, including having an injury, being unable to see clearly, not taking prescribed drugs, or being sleepy;

  • knowing the vehicle has a dangerous fault or an unsafe load;

  • the driver being avoidably and dangerously distracted, for example by: 

  • using a hand-held phone or other equipment

  • reading, or looking at a map

  • talking to and looking at a passenger

  • lighting a cigarette, changing a CD or tape, tuning the radio. 

 

Sentencing for dangerous driving

If convicted sentencing ranges from a community order to 2 years in prison, depending on the nature of the driving and any aggravating or mitigating circumstances. If convicted you will be disqualified from driving for a minimum of 12 months and you will only get you licence back after passing an extended re-test.

 

Loophole defences for dangerous driving

  1. Can it be proven that you were the driver at the time?

  2. Do you have an alibi to prove you were elsewhere?

  3. Can it be proven that the standard of driving fell “far below” that expected?

  4. Can it be argued that it was careless driving rather than dangerous driving?

  5. Do you have witnesses or video footage to prove your standard of driving wasn’t dangerous?

  6. Was there an emergency or threatening situation that caused you to drive like you did?

  7. Can it be argued that the incident was a momentary error of judgement or single negligent manoeuvre?

 

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

2. Driving without due care and attention or careless driving

The offence of driving without due care and attention (careless driving) under section 3 of the Road Traffic Act 1988 is committed when a person's driving falls below the standard expected of a competent and careful driver - section 3ZA(2) of the RTA 1988.

Some examples of careless or inconsiderate driving are:

  • overtaking on the inside;

  • driving too close to another vehicle;

  • driving through a red light by mistake;

  • turning into the path of another vehicle;

  • the driver being avoidably distracted by tuning the radio, lighting a cigarette etc. 

  • flashing lights to force other drivers to give way;

  • misusing lanes to gain advantage over other drivers;

  • unnecessarily staying in an overtaking lane;

  • unnecessarily slow driving or braking;

  • dazzling other drivers with un-dipped headlights.

 

Sentencing for driving without due care and attention

If convicted sentencing is usually a fine and points on your licence. Depending on the nature of the driving and any aggravating or mitigating circumstances the points imposed will range from 3 to 9 points, however, in some circumstances you can be automatically disqualified.

 

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter, unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loophole defences for driving without due care and attention

  1. Can it be proven that you were the driver at the time?

  2. Can it be proven that the standard of driving fell “below” that expected?

  3. Do you have witnesses or video footage to prove your standard of driving wasn’t careless or without due care and attention?

  4. Was there an emergency or threatening situation that caused you to drive like you did?

  5. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

3. Drink driving or drunk in charge

It is illegal to drive if the amount of alcohol in your breath, blood or urine is over the prescribed alcohol limit. 

 

Section 5 RTA 1988 driving or being in charge with alcohol concentration above prescribed limit sets out this offence and provides a defence.

A person who drives or attempts to drive a motor vehicle on a road or other public place, or is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in their breath, blood or urine exceeds the prescribed limit is guilty of an offence.

In relation to being in charge of a motor vehicle, a person is not guilty if they prove that the circumstances were such that there was no likelihood of driving the vehicle whilst the proportion of alcohol in their breath, blood or urine exceeded the prescribed limit.

 

Sentencing for drink driving or drunk in charge

If convicted of drink driving, sentencing ranges from a fine to 6 months in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will be disqualified from driving for a minimum of 12 months.

If convicted of drunk in charge, sentencing ranges from a fine to 6 weeks in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will get 10 points or disqualified for up to 12 months.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loopholes defences for drink driving or drunk in charge 

  1. Can it be proven that you were the driver at the time?

  2. Do you have witnesses or video footage to prove you did not drive over the limit?

  3. Did you inadvertently consume the alcohol? Did someone spike your drink?

  4. Did you consume the alcohol that put you over the limit after you stopped driving and before you were tested by the police?

  5. Did you only drive a very short distance?

  6. Is the reading reliable?

  7. Was the intoxyliser drink drive procedure carried out correctly?

  8. Can you demonstrate that there was no likelihood of you driving while you were over the prescribed limit?

  9. Was there an emergency or threatening situation that caused you to drive?  

  10. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

4. Drug driving or in charge

It is illegal to drive if you are unfit to do so through alcohol or drugs (legal or illegal) in your system.

 

Section 5A RTA 1988 driving or being in charge with concentration of specified controlled drug above specified limit is driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. It brings enforcement of drug driving into line with that of drink driving, by introducing a strict liability offence to avoid the need to prove impairment.

In relation to being in charge of a motor vehicle, a person is not guilty if they prove that the circumstances were such that there was no likelihood of driving the vehicle whilst the proportion of drug in their blood or urine exceeded the specified limit.

 

Sentencing for drug driving or in charge

If convicted of drug driving, sentencing ranges from a fine to 6 months in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will be disqualified from driving for a minimum of 12 months.

If convicted of in charge while over the drug limit, sentencing ranges from a fine to 3 months in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will get 10 points or disqualified for up to 12 months.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loopholes defences for drug driving or in charge

  1. Can it be proven that you were the driver at the time?

  2. Do you have witnesses or video footage to prove you did not drive over the limit?

  3. Did you consume the drugs that put you over the limit after you stopped driving and before you were tested by the police?

  4. Did you only drive a very short distance?

  5. Is the reading reliable?

  6. Was the drug drive procedure carried out correctly?

  7. Can you demonstrate that there was no likelihood of you driving while you were over the prescribed limit?

  8. Was there an emergency or threatening situation that caused you to drive? 

  9. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

5. Fail to provide a sample of breath, blood or urine

Failure to provide a specimen without reasonable excuse during a road side breath test or at a police station if you are suspected of driving under the influence of drink or drugs is an offence, which is treated as seriously as driving whilst under the influence of alcohol.

 

With Section 7 RTA 1988 the request to provide a sample at police stations in most cases is a sample of breath.

If the provision of a specimen other than a specimen of breath is required, the question whether it is to be a specimen of blood or a specimen of urine and, in the case of a specimen of blood, the question who is to be asked to take it, shall be decided by the constable making the requirement. However, there is no requirement to provide such a specimen if:

  • the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or

  • the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner.

A specimen of urine shall be provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine.

A constable must provide a warning on requiring a specimen that a failure to provide it may render him liable to prosecution and may arrest a person without warrant if the person fails to provide a specimen. Failure, without reasonable excuse, to provide a specimen when required is an offence – s. 7(6) RTA 1988.

If a "reasonable excuse" is raised as a defence based on medical evidence the defendant must provide expert evidence that demonstrates the medical evidence of physical or mental inability to provide the specimen, and the causative link between the physical or mental condition and the failure to provide the specimen. Once such a defence is raised, the onus switches to the prosecution to negate it.

 

Sentencing for fail to provide

If convicted of failing to provide a specimen after driving, the sentencing ranges from a fine to 6 months in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will be disqualified from driving for a minimum of 12 months.

If convicted of failing to provide a specimen after being drunk in charge, sentencing ranges from a fine to 6 weeks in prison, depending on the reading and any aggravating or mitigating circumstances. If convicted you will get 10 points or disqualified for up to 12 months.

 

Sentences for failing to provide are usually more severe than when a sample is provided, there is a presumption that by failing to provide a sample you are trying to avoid giving a high reading.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loopholes defences for fail to provide

  1. Was the procedure carried out correctly?

  2. Were you properly warned that you would be prosecuted if you didn’t provide a specimen?

  3. Did you understand the procedure? Should you have had an interpreter?

  4. Did you have a medical reason that stopped you providing a specimen?

  5. Can you evidence your medical reason?

  6. Did you raise your medical reason?

  7. Did you genuinely do the best you could to provide a specimen?

  8. Was the police officer too hasty in dismissing your medical reason?

  9. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

6. Speeding

It is an offence under the Road Traffic Regulation Act 1984 to exceed the speed limit for a vehicle of the class that is being driven.

 

Sentencing for speeding

The sentence is a fine plus penalty points or a disqualification. Points can range from 3 to 6 points. If disqualified it will be between 7 to 56 days. Much will depend on the amount of excessive speed over the speed limit and on any aggravating or mitigating circumstances.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loophole defences for speeding

  1. Do you have evidence, witnesses or video footage to prove you did not drive over the speed limit?

  2. Is the speed reading reliable?

  3. Was there an emergency or threatening situation that caused you to drive over the speed limit? 

  4. Were you charged with the offence within the 6 month statutory time limit?

 

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

7. Using a mobile

It’s illegal to hold a phone or sat nav while driving or riding a motorcycle. You must have hands-free access, such as:

  • a bluetooth headset

  • voice command

  • a dashboard holder or mat

  • a windscreen mount

  • a built-in sat nav

The law still applies to you if you are:

  • stopped at traffic lights

  • queuing in traffic

  • supervising a learner driver

 

Using a mobile phone or handheld device is a specific offence but also can be considered as dangerous or careless driving.  

Sentencing for using a mobile

A fine and 6 penalty points. A new driver could lose their licence if they have passed their test in the last two years. 

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter, unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loophole defences for using a mobile

  1. Can it be proven that you were the driver at the time?

  2. Can it be proven that you were using a handheld device at the time?

  3. Do you have evidence, witnesses or video footage to prove your defence?

  4. Were you safely parked?

  5. Did you need to make an emergency call to 999 or 112?

  6. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

8. Special Reasons not to disqualify from driving

Section 34(1) RTOA 1988 reads:

Where a person is convicted of an offence involving obligatory disqualification the court must order them to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order them to be disqualified for a shorter period, or not to order them to be disqualified.

A special reason is one which is special to the facts of a particular offence. It is a mitigating or extenuating circumstance which is directly connected with the commission of the offence and which can properly be taken into consideration by the sentencing court.

 

A 'special reason' is not a defence to the charge.

Where special reasons are put forward in cases of drink and drug driving, the court must consider the following factors:

  • the reason for driving;

  • the distance driven;

  • the manner of driving;

  • the condition of the vehicle driven;

  • whether or not it was the driver's intention to drive any further;

  • the road and traffic conditions at the relevant time; and,

  • the possibility of danger to other road users (the most important factor).

The key question the magistrates should ask themselves when assessing if such special reasons existed on which they might decide not to disqualify is this: what would a sober, reasonable and responsible friend of the defendant, present at the time, but himself a non-driver and thus unable to help, have advised in the circumstances, to drive or not to drive?

The onus of establishing special reasons lies on the defence, and the standard is that of the balance of probabilities.

 

Sentencing in relation to special reasons

The key is to prove that you have a special reason, so the court can consider reducing your disqualification period or consider not disqualifying at all.

 

Loophole defences for special reasons

Special reason circumstances can be virtually anything that can be seen as a mitigating or extenuating circumstance which is directly connected with the commission of the offence, and which can properly be taken into consideration by the sentencing court. This gives plenty of scope to consider the circumstances of your case and advance an argument to the court in order to prove your special reason.  

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

9. ‘Totting up’ disqualification and exceptional hardship

Incurring 12 or more penalty points within a three-year period means a minimum period of disqualification must be imposed (commonly known as a ‘totting up disqualification’) – s.35 Road Traffic Offenders Act (RTOA) 1988.

The minimum period is:

  • six months if no previous disqualification is to be taken into account

  • one year if one previous disqualification is to be taken into account

  • two years if more than one previous disqualification is to be taken into account.

 

A previous disqualification is to be taken into account if it is:

  • not less than 56 days; and

  • imposed within the three years immediately preceding the date on which the current offence (or most recent of the current offences) was committed.

 

Totting up disqualifications, unlike other disqualifications, erase all penalty points.

 

The court should first consider the circumstances of the offence, and determine whether the offence should attract a discretionary period of disqualification. But the court must note the statutory obligation to disqualify those repeat offenders who would, were penalty points imposed, be liable to the mandatory “totting” disqualification, and should ordinarily prioritise the “totting” disqualification ahead of a discretionary disqualification.

If the offender has 12 or more penalty points the court must order the offender to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified – s.35(1) RTOA 1988.

In deciding whether there are grounds to reduce or avoid a totting up disqualification the court must not take into account:

(a) any circumstances that are alleged to make the offence (or any of the offences whose penalty points are to be taken into account) not serious,

(b) hardship, other than exceptional hardship, or

(c) any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

Exceptional Hardship

s.35(4) RTOA 1988 When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

  • It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.

  • Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;

  • Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

  • If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.

  • Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;

  • Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.

 

Where it finds that there are grounds for mitigating the ‘normal consequences of the conviction’, the court may consider whether this can be achieved by ordering a period of disqualification which is shorter than the statutory minimum or by ordering that the offender should not be disqualified at all.

Where the court does not find grounds for mitigating the normal consequences of the conviction then a period of disqualification of at least the statutory minimum must be imposed.

 

Sentencing in relation to totting up and exceptional hardship

The key is to prove that someone other than you will suffer exceptional hardship if you are disqualified from driving, to either reduce the period of disqualification period or not be disqualified at all.

 

Loophole defences for totting up and exceptional hardship

Exceptional hardship circumstances can be virtually anything that evidences that a person other than you will suffer exceptional hardship if you are disqualified from driving. This gives plenty of scope to consider the circumstances of your case and advance an argument to the court in order to prove your exceptional hardship.

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

10. Failing to Stop/Report an Accident

Section 170(2) RTA 1988 provides that the driver of the motor vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give their name and address, the name and address of the owner of the vehicle and the identification marks of the vehicle. The duty to stop means to stop sufficiently long enough to exchange the particulars above.

Section 170(3) places an obligation on the driver, if they do not give his name and address under subsection (2) above, to report the accident to a police constable or police station as soon as reasonably practicable and in any case within 24 hours. The duty to report means 'as soon as reasonably practicable', it does not mean the driver has 24 hours within which to report the collision.

You can be prosecuted with both offences in the same incident. The failure to stop is usually viewed as the more serious of the two.

 

Sentencing for Failing to Stop/Report an Accident

If convicted, sentencing ranges from a fine to 26 weeks in prison, depending on the circumstances of the offence and any aggravating or mitigating circumstances. If convicted you will get 5-10 points or disqualified for up to 12 months.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loophole defences for Failing to Stop/Report an Accident

  1. Can it be proven that you were the driver at the time?

  2. Do you have an alibi to prove you were elsewhere?

  3. Did you know you had an accident? Was it so minor that you were unaware?

  4. Do you stop but there was nobody to exchange details with?

  5. Did you stop but it was unsafe to remain at the scene?

  6. Did you have a valid reason for any delay in reporting the accident to the police? 

  7. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

 

11. Driving/Obtaining a Driving Licence Whilst Disqualified

A person is guilty of an offence if, while disqualified for holding or obtaining a licence, he obtains a licence, or drives a motor vehicle on a road – s.103 RTA 1988.

There is a duty on a person who chooses to drive to ensure that he or she is entitled to do so. It is no defence for that person to say that he or she thought the disqualification had expired. It is not an automatic defence for a person disqualified in their absence to claim that they did not know that they had been disqualified. To avoid this argument the courts are reluctant to disqualify offenders in their absence.

A person disqualified under s.36 RTOA 1988 until a driving test is passed commits an offence under s.103 RTA 1988 if he or she drives whilst disqualified otherwise than in accordance with any provisional licence issued.

Proof of disqualification is essential.

 

Sentencing for driving/obtaining a driving licence whilst disqualified

Driving a motor vehicle on a road whilst disqualified is a serious matter as the court interprets the action as deliberately flouting their original court order.

If convicted, sentencing ranges from a fine to 26 weeks in prison, depending on the circumstances of the offence and any aggravating or mitigating circumstances. If convicted you will get 6 penalty points or disqualified for 3 to 18 months beyond the expiry of the current ban.

 

Loopholes defences for driving/obtaining a driving licence whilst disqualified

  1. Can it be proven that you were the driver at the time?

  2. Can it be proven that you knew of the disqualification?

  3. Was there an emergency or threatening situation that caused you to drive?

  4. Were you charged with the offence within the 6 month statutory time limit?

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

12. Fail to give details of the driver

Under Section 172 of the Road Traffic Act 1988, where the driver of a vehicle is alleged to have committed an offence, the keeper commits an offence if they fail to provide information about the identification of the driver at the time of the offence - section 172 (2)(a)); and 

Any other person commits an offence if they fail to provide information which it is in their power to give, which may lead to the identification of the driver  - section 172 (2)(b)).

 

Sentencing for fail to give details of the driver

The original offence becomes irrelevant. The punishment for the new offence of failing to provide information about the identification of the driver is a fine and 6 penalty points.

If the points imposed means you now have 12 points or more you will be disqualified for 6 months as a totter, unless you can argue exceptional hardship, this can allow you to keep driving with the points on your licence.

 

Loopholes defences for fail to give details of the driver

  1. Did you receive the original notice of intended prosecution?

  2. Can you provide evidence to persuade the court that you did not receive the notice of intended prosecution? If so, the court may allow you plead guilty or not guilty to the original offence.

  3. Can you provide evidence to persuade the court that you made all reasonable steps and enquiries to provide the details of the driver said to have committed the offence? 

 

Motoring and driving offences are never straightforward. Good legal advice is essential at an early stage, contact me or email me richard@defencesolicitor.net.

 
 
 
 
 
 
 
 
 
 
 
 

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email: richard@defencesolicitor.net

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​​​​© Richard Bayliss Freelance Solicitor 2021