How can I avoid a driving ban?
Maybe you’ve found this post because it’s late at night, you can’t sleep and you want something incredibly dull to send you to sleep… but, more likely you’re facing a driving ban, you don’t want to end up waiting for a train in the rain, and you want to know if there’s any way of escaping it. Either way, I’ve got you covered!
The most obvious way of avoiding a driving ban is to plead not guilty and win your trial. But, you already know that, don’t you? So let’s talk about some other options. In future posts we’ll talk in more detail about specific options. For now though we’re going to explain a couple of general points.
The approach you take is going to depend on what you are accused of doing. Some offences carry an obligatory driving ban, i.e. the court has no choice but to disqualify you from driving. While others carry a discretionary ban, which means the court can ban you or impose penalty points.
Where the court has a choice whether to ban your or not, you can put forward mitigation to persuade them that a ban would be the wrong decision in your case. Mitigation might be about how the offence wasn’t that serious, about how a ban will impact your family or employment etc.
The skill with mitigation is to find the points that are going to be the most persuasive and deploy them effectively. Maybe you’re hoping I’ll tell you how to do that, but I can’t! It’s not a trade secret, it’s just that what works for you won’t necessarily be the right thing for somebody else, and vice versa.
Also, what works with Judge Smith might go down badly with Judge Jones. Assessing what are good arguments for you and what is likely to work with a particular judge is a skill that solicitors develop over many years of practice.
Exceptional hardship is a particular type of mitigation that aims to avoid a totting up disqualification, i.e. when you accumulate 12 or more penalty points. You can use all the arguments you’d deploy in an exceptional hardship plea in normal mitigation.
I’m not going to go into detail here about exceptional hardship as it’s a surprisingly complex topic that deserves its own dedicated post. Until one is written, you can call us on 020 8242 4440 if you want to find out how we can help you avoid a totting up ban.
Broadly speaking though, exceptional hardship must be something that is out of the ordinary that causes an unusual level of hardship, i.e. it must be exceptional not run of the mill or entirely predictable. Thus, a delivery driver will not succeed if his only point is that he will lose his job – that was an entirely predictable consequence of accumulating a lot of penalty points.
Exceptional hardship arguments that focus on somebody other than you are always the most likely to succeed. For example, if a driver will lose his licence and that will cause his family to lose their home that might be sufficient because of the hardship to the family; however, the loss of a job and consequent inability to pay the rent/mortgage is predictable so it’s an argument best approached with caution.
As with mitigation, every exceptional hardship argument will be unique to the person making it so I cannot give specific advice without speaking to you. Call me, 020 8242 4440 is the number night or day… although I won’t actually be there at night, but you can still call and leave a message so I can call you back in the morning.
Okay, so I’m going to undermine my entire heading structure here: these arguments apply just as much to discretionary bans as to obligatory bans. The reason I’ve labelled the headings how I have is because the following arguments are most often deployed to prevent obligatory bans.
Strictly speaking, none of the following can prevent a discretionary ban; however, you can deploy them, for example, to prevent the points being imposed that would lead to a totting up ban. I’ll be talking about driving bans going forward, but remember all of these can also prevent points being added to your driving licence as well!
Special reasons exist to avoid injustice. Most motoring offences are offences of strict, or absolute liability. That means that there is no mental element required to prove them. Think of theft. To commit a theft I have to physically take an item belonging to somebody else and, at the same time, I have to intend to permanently deprive the owner of his property. If I take something believing I am entitled to take it then I am not guilty. That isn’t the case with most motoring offences. If you drive over the limit, you are guilty of drink driving regardless of why you did it. Equally, if you drive over the speed limit you are guilty of speeding whatever your reason for doing so. That means, if your drink was spiked with alcohol and you drive, you are still guilty even if you had no idea. If you speed because your partner is giving birth in the seat next to you, you are still guilty.
There are a number of special reasons that can be deployed. Obviously, some are specific to particular offences, e.g. laced drinks is specific to drink driving (and possibly drug driving, although I’ve yet to find a factual scenario where could work). The most common special reasons are: laced drinks, shortness of distance driven, and emergency. But, you could also be misled about certain facts that cause you to commit an offence, such as driving without insurance.
Let’s take a look at some of the most common special reasons.
Sometimes called spiked drinks, laced drinks is essentially you saying that you did not consume enough alcohol to put you over the limit and you are only over the limit because somebody else added alcohol to your drink without your knowledge.
To be successful, you will need to prove a) how much alcohol you knowingly drank, b) that your drink was spiked, c) that you would not have been over the limit but for the additional alcohol. That final point will nearly always require medical evidence from a toxicologist.
It is important that you neither know nor suspect that your drink has been tampered with. Courts will expect drivers to do everything reasonably possible to ensure they do not drive while drunk. That means, if you have a pint of beer and it tastes funny you should be asking yourself what is wrong with it. If you feel like you are being affected by alcohol but have only drank one pint then you need to be asking yourself why that is. The onus really is on you to show the court that you have taken reasonable steps to protect yourself from committing an offence.
In very extreme circumstances, an emergency could amount to a defence; however, it will be necessary to show that the emergency was such that there was an imminent threat to life. This is a defence called duress. It is very difficult to prove. Lesser emergencies may not amount to a defence but could be a special reason for avoiding the driving ban.
A few years ago, we represented a lady who had been threatened and attacked by a relative over a number of years. On the night of her arrest, our client had been at a restaurant with her friend. Upon leaving the restaurant, she saw the abusive relative who immediately became aggressive. Our client decided to drive away and was stopped by police a few streets away. At trial, the judge decided that the threat was insufficient to amount to a defence of duress, but it was sufficient for our client to avoid the driving ban as a special reason.
To be successful, the court will expect you to show that there was a genuine threat which necessitated you driving when you otherwise should not have driven. The judge will also expect you to stop driving as soon as the threat has passed, and you can safely pull over to make an escape on foot or call the police for help. The court will also ask itself what a sober and sensible friend, present at the scene but himself unable to drive, would have advised the defendant to do in the circumstances. It is important that evidence in emergency cases is carefully presented to achieve victory. Call us on 020 8242 4440 if you’d like to talk through your case.
Short distance driven
This is a special reason that can apply to pretty much any driving offence you can think of that doesn’t result in a crash or other “accident”.
“Short distance” sounds simple but, with its seven-point test, it is one of the more complicated special reasons to prove.
The court will look first at how far you actually drove, then at the manor of your driving. Next it will enquire as to the condition of the vehicle. The fourth question is whether you intended to drive further had the police not intervened. Next, what were the weather and road conditions at the time you drove. Number six is the most important of all: was there any possibility of danger being caused to other road users by your presence of the road. Finally, the court will ask what the reason for you deciding to drive in the first place was.
I dealt with a nice little case recently that shows how short distance can work. Two lads had been out for the night. They walked into town, they walked back to one of their houses. Not wanting to smoke in front of the parents they decided to sit in Lad A’s car. Lad A sat in the passenger seat while Lad B sat in the driving seat. He turned the ignition on to play the radio and turn the hearing on. Lad B then decided to drive the car forwards, much to Lad A’s annoyance. Lad A shouted at him to stop, which Lad B did, leaving the car pulled across the road. Lad A got into the driving seat and put the car back in its original parking place. A bystander had been out watching all this go on and called the police, who arrived just in time to see the car being reparked. At court, Lad B was disqualified from driving because although he had driven a short distance with nobody put at any risk from his driving, he did not have a good reason for driving in the first place. Lad A avoided a driving ban because the court accepted he only drove to undo the actions of his friend.
The thinking of courts over the years is that the distance actually driven and intended to be driven should be measured in “yards not miles”. The shorter the distance and the quieter the road the more likely you are to be successful.
The misled driver
The final category of special reason I’m going to talk about here is the misled driver. We’ve already talked about an example of a driver being misled: laced drinks. But, there are plenty of other situations where it could happen.
One of my very first cases involved an East European man who had grown up on the other side of the Iron Curtain where – as he told it – insurance was not required. When he came to the UK, he knew that insurance was required and bought it from somebody at a market. The seller gave him a certificate that turned out to be fraudulent. At court, my client successfully argued that he should not suffer the consequences of driving without insurance because he had been misled. In another case, my client bought a car and was told that the dealer would provide three-days complimentary insurance so he could drive the car away. The dealer had subsequently failed to add the driver to the insurance policy. Again, my client was permitted to avoid the consequences of driving with no insurance because the seller had misled him. To the dealer’s credit, he not only came to court but also paid for his customer’s legal representation!
In Burgess v West, which is not one of my cases (it was decided when I was three years old), Mr West drove at 40mph in a 30mph speed limit. He argued that he had been misled by the lack of signage indicating the change in speed limit and was successful in avoiding penalty points.
However, it is important to emphasise that we are talking about drivers who are misled not drivers who are mistaken! In Jones v Nicks (again nothing to do with me as I hadn’t even been born yet), the driver argued that drivers generally believed a road to be a 40mph limit rather than the 30mph limit it was. Effectively, the argument was that this was a common mistake made by lots of people. The court rejected it because a mistake is insufficient, you must be actively misled in some way. That said, I did recently deal with a totting up case where I successfully used a widespread mistaken among drivers as to speed limits to persuade a magistrates’ bench not to disqualify my client who had totted up with multiple speeding offences in the same location.
Often, it is about how you deploy an argument as much as what the argument is! You can call me on 020 8242 4440 to talk about your case if you need help.
So, there you have it our short run through of the less obvious ways of avoiding a driving disqualification.
Over the next few weeks, we’ll release more posts going into detail on each of the arguments we’ve breezed through in this post. If you have any questions or need help with your case you can reach me on 020 8242 4440 or send an email via our contact page.