Tag Archives: driving ban

News

Failing to provide a breath specimen – the law and defences

failing to provide a specimen of breathIf you are suspected of driving with excess alcohol in your body, you may be asked to provide a breath sample at the roadside. If that sample is positive, you are likely to be arrested and take to the police station.  Failing to provide a breath specimen may mean you commit a separate offence.

Why do I have to provide another specimen at the police station?

 Once at the police station you will be asked to provide an evidential sample of breath, the sample taken at the roadside is just a preliminary test to see if you are over the limit.

failing to provide a breath specimen

But I wasn’t over the limit or driving!

 It is crucial to note that the fact you were not driving does not mean that you can refuse to provide a sample of breath, nor does it matter if you weren’t over the limit.

If the police have reasonable grounds to suspect that you were driving and you refuse, so failing to provide a breath specimen without good reason, you may be guilty of the offence.

 What if I can’t provide a breath sample or the machine is broken?

 If it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine.

Failure to provide the requested sample without good reason is an offence. Which sample is requested (blood or urine) is at the officer’s discretion and is not for you to choose.

What if I wasn’t warned?

 You have to be warned that failing to provide a breath specimen or other sample is is an offence.  If the warning is not given this may be a bar to conviction.  As a result it is important that you seek early legal advice.

 What is a refusal?

 A straightforward refusal , or not trying hard enough constitutes a refusal and the offence of failing to provide a specimen of breath.

The taking of a sample cannot normally be delayed for you to be given legal advice although the police may allow that to happen.

Examples from cases where reasonable excuse has not been found include the following:

  • a desire to see a doctor
  • the illegality of detention
  • mistake
  • religious belief
  • the sight of blood
  • stress.

Is there a defence to failing to provide a breath specimen?

It is a defence to show that you had a reasonable excuse for failing to provide a breath specimen. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.

What is the sentence on conviction?

 failing to provide a specimen of breathA conviction will result in a mandatory driving disqualification of at least 12 months and is often in the region of 18 months or longer.

If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be three years.

As well as a driving ban you could be fined, given a community order or sentenced to up to 6 months in prison.

Will it different if you were not driving?

 If you were suspected of being in charge of a vehicle before failing to provide a sample rather than driving, the penalty is different.

You may still be disqualified, but if the court chose not to, they would impose ten penalty points. The maximum prison sentence for this offence is three months.

Instruct an expert motoring law solicitor

As you can see, a conviction for failing to provide a breath specimen can have serious consequences and the law relating to defences can be complex.

As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

An example of how we have defended a case recently can be found here.

We made representations to have a prosecution discontinued in this case.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

 

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News

Chesterfield motoring solicitor keeps taxi driver’s licence

Chesterfield Motoring Solicitor David Gittins was recently instructed in a case where his client was at real risk of a driving ban.  This would have meant the loss of his job as a taxi driver and a substantial impact on his 4 children.

David’s client had been caught driving at 76 mph in an 30 mph speed chesterfield motoring solicitorlimit close to Chesterfield Town Centre. David’s strong advocacy  and diligent preparation enabled the client to keep his driving licence.  Instead he left the court with a fine and penalty points.

This case, perhaps better than most, demonstrates the benefits of choosing a local Chesterfield motoring solicitor carefully.  Surprisingly, David’s client had tried to instruct another local solicitor’s firm.  They had declined to take the instruction as they didn’t believe he could save the Defendant’s driving license.

Benefits of a local Chesterfield motoring solicitor

David’s client told him that he had been caught speeding whilst driving out of Chesterfield town centre along Derby Road at excessive speeds.  With local knowledge, David was immediately able to recognise the seriousness of the situation.

chesterfield motoring solicitorDavid’s client had been running late and had made a terrible error in trying to make up time by grossly exceeding the speed limit.  His client did not dispute the speed.  He indicated to David his desire to plead guilty at the very first opportunity in order to gain maximum credit and demonstrate his remorse.  In retrospect he appreciated the potential danger he created with this piece of driving.

Our client required his driving licence to be able to work.  David had to make his client aware that due to the level of speed the Court would consider imposing an immediate driving disqualification  of up to 56 days.

As a Chesterfield motoring solicitor, David knew that the local Magistrates would also know the road in question.  Because of this he knew that the only way in which he could keep his client’s license was to prepare detailed mitigation to present to the Court.

chesterfield motoring solicitorDavid had two lengthy conferences with his client in advance of the Court hearing.  This was to take details of how a disqualification would impact upon him, his wife and their four children.  For example, he provided transport to a separate school for each child, as well as to a variety of after school activities. Bluntly put,  if the client lost his license it was almost impossible for the children to attend school on time due to their age and the travel involved.

David preparing a map to show the court the acute difficulties that his client’s children would face.  He also secured references on behalf of his client.  For example, his client was involved in the local community tackling drug addiction.

Penalty Points rather than a driving ban

As a result of this detailed preparation and strong advocacy, David was able to present his client’s mitigation in an extremely effective way.  Because of this, the Magistrates’ were persuaded to take a lenient approach.  David’s client received a fine and penalty points but no driving ban.  This meant that he was able to keep his employment and was understandably delighted with the outcome.

Contact a Chesterfield Motoring Solicitor

chesterfield crime solicitor David Gittins
Partner and Chesterfield motoring law solicitor David Gittins

If you require the advice and representation of an expert motoring solicitor then please contact David at our Chesterfield office on 01246 283000 or use the contact form below.  Details of our Chesterfield office can be found here.

David  can provide you with detailed and affordable advice as to whether you are able to challenge the prosecution evidence relating to your road traffic offence, or how you are likely to be sentenced following a guilty plea.

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News

Banned from driving? Can you get your licence back early?

Driving Disqualification? We can help you get your licence back

In some instances, it is possible to apply to a court and ask that a driving ban is ended earlier than it would normally be.  How will you be able to argue to get your licence back early?

If your circumstances have changed since being disqualified, it is worth discussing with one of our criminal law specialists whether or not you can take advantage of this legal provision.

get your licence back early

Is legal aid available?

Legal aid may be available subject to a means test. Alternatively we will be able to provide you representation on a private basis.  This is likely to be by way of an affordable fixed fee.

What are the rules?

You can ask the court to reduce the period of your disqualification  after you’ve been banned from driving after the following periods have expired:

  • 2 years when your disqualification was for more than 2 years but less than 4 years
  • Half the length of the disqualification period where the driving ban was for between 4 and 10 years
  • 5 years in cases where your disqualification was for 10 years or more

What about a ban following a second drink driving offence?

get your licence back earlyWe are often asked by clients who have been disqualified for a second drink drive offence whether they are also able to apply to get their licence back early.

The answer to that question is ‘yes’.  The application will however be complicated as the High Court has expressed the following view:

“I would only add that justices … may if they think fit regard a mandatory disqualification as one which they are somewhat less ready to remove than a discretionary disqualification.”

But it will depend, as always, on the individual circumstances of your case.  The decision in Boliston v Gibbons (1995), for example, showed the High Court to be very sympathetic to the plight of the applicant.

What are the criteria?

The law states that:

“On any such application the court may, as it thinks proper having regard to—

(a) the character of the person disqualified and his conduct subsequent to the order,

(b) the nature of the offence, and

(c) any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”

As a result, what any applicant needs to establish is that there is some compelling reason why the ban should be brought to an end early.  such examples include employment opportunities, reliance on a vehicle for caring responsibilities, personal immobility etc.

get your licence back early

Will the application be opposed?

It is very rare for an application not to be opposed.  Because of this we will work incredibly hard to ensure that an impressive argument is put before the court.

Unfortunately simply turning up and throwing yourself on the mercy of a court is unlikely to result in a return of your driving licence early.

If the application is refused, can I make a further application?

A further application is possible but you must wait for three months from the date of the refusal to make your next application

How we can help you get your licence back early

We will assist in preparing and presenting your application to the court. This will include taking your instructions and gathering any supporting evidence that you may need to strengthen your case.

Our experienced team have significant advocacy expertise before both the Magistrates’ and Crown Courts.  As a result we are best placed to secure the return of your driving licence.

Contact your nearest office to speak to one of our lawyers to see how we can help you get your licence back early.  Alternatively use the contact form below.

get your licence back early east midlands solicitor

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News

Lengthy driving disqualification avoided for Chesterfield road traffic client

In recent months the penalties for speeding in a motor vehicle have increased dramatically since April 2017.  This includes a reduction in the threshold at which a defendant faces a driving disqualification.  You can read more about this here.

driving disqualification chesterfieldAs a result the risk of being disqualified following a speeding conviction is much higher than previously.  Chesterfield motoring law solicitor David Gittins was recently instructed by a client who faced disqualification for speeding.

In this case, although there was no mitigation to be put forward to prevent a driving disqualification, David was able to advance powerful mitigation to secure a very short disqualification,  The ban would have little impact on our client’s ability to continue with his employment.

The Allegation

David’s client, who was only nineteen years old, had been seen by police driving his car at twice the legal limit.  Unfortunately he was driving at more than twice the legal limit.

On being pulled over by the police he gave his details and then had to await the inevitable speeding summons and court date.

Client appearance at Chesterfield Magistrates’ Court

David had been instructed to represent our client prior to the court date.  Although entering a guilty plea will be easy for an unrepresented defendant facing a speeding charge, choosing what extra information will favourably influence the outcome of their case.

driving disqualification reduced Chesterfield road traffic solicitorThis may conclude telling the Magistrates’ what happened and why.  A defendant’s demeanour or lack of appreciation of the gravity of his case might mean that they approach the case in a manner guaranteed to aggravate the situation.

The starting point for Magistrates will always be that speeding can have very serious consequences and they will be looking to see an appropriate level of regret and remorse.  More can be read about that here.

With this in mind David took instructions to see what personal mitigation would be available to his client.  As he worked in the motor trade he needed a driving licence.  His job would remain open to him if there could be a successful argument for a short disqualification.  He lived in a rural area with an almost non-existent public transport system.

Successful mitigation of driving disqualification

David had already considered the sentencing guidelines so directed his mitigation at the relevant aspects of the guideline.  By focussing on the positive elements of his client’s character, including his employment, David was able to secure a favourable sentencing outcome.

Chesterfield magistrates court driving disqualification legal representationOur client was eventually fined and disqualified from driving.  The disqualification was only for 21 days however. This was at the very lower end of the sentencing range.  David’s client was particularly happy as he was due to go on a foreign holiday for fourteen days of the disqualification when he wouldn’t be driving in any event.  This meant that he would only have to miss one week of work.

His job was secured and our client was extremely satisfied with the result.  He appreciated that had be represented himself it was likely that his approach was likely to be less focussed and it may well have been that he didn’t secure the same outcome.

Since this case, David has already referred a further referral from his client who has instructed him in a similar matter.

Affordable fixed fees

Legal aid is not normally available for cases of this nature.  As a result our client instructed us on a private basis.  For most motoring offences fixed fees can be agreed and this was the case here.

Instruct a Chesterfield Road Traffic solicitor

Chesterfield road traffic and crime solicitor David Gittins

If you wish to instruct David for any road traffic or criminal matter please contact him at our Chesterfield office on 01246 283000 or alternatively use the contact form below.  While we can make no promises about the outcome of any case, we are best placed to argue against a driving disqualification or to reduce the length of a driving ban.

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No disqualification means client not driving whilst disqualified!

Nottingham crime solicitor Stacey Mighty ensured that her client’s concerns about his prosecution were followed up.  The result was that the charge of driving whilst disqualified was withdrawn.

Driving whilst disqualified

Stacey’s client faced an allegation of driving whilst disqualified.  This was said to have been during the currency of a driving disqualification until an extended re-test was passed.  He denied ever having been the subject of such a disqualification.

The disclosure received from the prosecution did not give a date for when the disqualification had been imposed.  The more detailed print out from the DVLA failed to shed any more light on the situation.

No driving ban

The only conviction that could have led to such an order being made was in 2015 where it appeared that our client had received a simple 6 month fixed term disqualification.

Stacey recognised that her client’s time was precious to him.  She could have asked for the case to be adjourned to another day.  Instead Stacey ensured that the original court file for that date was brought into court.  This confirmed that there had been a driving disqualification without an requirement for an extended re-test.

As a result, the prosecution withdrew the allegation of driving whilst disqualified at this first hearing.

Contact a criminal law specialist

not guilty of driving whilst disqualified
Derby duty solicitor Stacey Mighty

Police, court and prosecution records might be wrong.  The prosecution might not be able to prove an essential element of an offence.  As a result, you will wish to take early advice from a criminal law specialist such as Stacey in order to ensure that your case is properly prepared and presented.

Please call Derby criminal solicitor Stacey Mighty on 01332 546818 to discuss your case.  Alternatively use the enquiry form below.

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Shortness of distance driven avoids drink driving ban

shortness of distance driven special reasons
Newark crime solicitor Ian Carter

Newark criminal solicitor Ian Carter recently represented a client at a special reasons hearing.  The hearing was successful.  His client avoided the usual driving disqualification owing to the shortness of distance driven.

There are very limited circumstances in which a driving disqualification can be avoided for an offence of drink driving.  You might be able to do so if you can show that ‘special reasons’ exist that allow the Magistrates’ to use their discretion not to impose a driving ban.

Factors for a successful Special Reasons argument

In deciding on such an argument, the court will look at the following factors that relate to the offence:

  • How the vehicle was driven
  • The manner I which it was driven
  • The state of the vehicle
  • Whether the driver intended to drive any further
  • The prevailing road and traffic conditions at the time
  • Whether there is any possibility of danger by coming into contact with other road users
  • The reason for the vehicle being driven in the first place

You will see that these factors do not relate to the personal circumstances of the offender.

Shortness of Distance Driven

In this case, Ian argued on behalf of his client that a special reason existed owing to the shortness of distance driven.  His client had been seen moving a van that had been parked on The Wharf in Newark from a roadside parking bay across to a car park.

The distance involved was no more than 30 yards.

As Ian is based in Newark he was able to visit the scene without difficulty.  He was also able to speak with a local traffic warden and discuss how the parking in that area was policed.  This was information that was used at the final hearing.

Ian’s client gave evidence to the court that she had moved the vehicle in the early hours to avoid receiving a parking ticket.  Her intention was to collect the vehicle the next day.  Our client’s partner also gave evidence in support of this account.  The agreed police evidence showed the shortness of distance driven and that the journey was concluded.

Ian was able to use court room technology to show the Magistrates’ the area using Google Maps and Street View.  This allowed the court to properly understand that the risks involved in moving the van were low.

Special Reasons found, driving ban avoided

The Magistrates found that there were special reasons not to disqualify.  The evidence given was credible and established the shortness of distance driven.  There was no  bad driving.  Due to the time there were no pedestrians or other vehicles.  This meant there was little risk to others.  The Magistrates were sure that there was no intention to drive further until the following day.  Ian’s client would have been under the legal limit to drive when she collected the vehicle.

As a result, although she was fined, Ian’s client did not receive a driving ban.  If you are due before the court for an offence that could lead to a disqualification then it will help to instruct a solicitor.  You may be entitled to free legal aid for your representation or be able to take advantage of an affordable fixed fee.

Contact a Newark Criminal Solicitor for Newark cases

If you are being investigated by the police or face court proceedings then please contact Newark criminal defence lawyer Ian Carter on  or email him here.

If you face police investigation or criminal proceedings elsewhere then you can find your local office here.

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Driving ban avoided at Chesterfield Magistrates’ Court

driving ban chesterfield criminal lawyer kevin tomlinson
Chesterfield Motoring Solicitor Kevin Tomlinson

Chesterfield Motoring Solicitor Kevin Tomlinson was recently instructed in a case where the Defendant was at real risk of a driving ban.

Kevin’s client was caught driving at 80 mph in an 50 mph speed limit. Kevin’s advocacy skills and ability to use modern technology, enabled the client to keep his driving licence, leaving court with a fine and penalty points.

This case, perhaps better than most, demonstrates the benefits of instructing a local motoring solicitor.  Kevin has worked as a criminal defence solicitor in Chesterfield for many years and knows the roads around Chesterfield, including into High Peak, very well.

Benefits of a local Chesterfield Motoring Lawyer

Kevin’s client told him that he had been caught speeding whilst driving on the Snake Pass between Chesterfield and Manchester.  Kevin was immediately able to recognise the seriousness of the situation.

Snake Pass winds its way through the High Peak with very limited opportunities to overtake other road users.  Drivers are regularly driving at less than the stated 50 mph.  The road is regularly used by farm vehicles and haulage companies. This leads to drivers becoming increasingly frustrated during their journeys.   There are often accidents which leads the police to monitor the road closely.

 

Kevin’s client was running late and took an opportunity to overtake another vehicle.  In doing so he accelerated to 80 mph and was caught by a Police mobile camera. The client did not dispute the reading and indicated to Kevin his desire to plead guilty at the very first opportunity in order to gain maximum credit and demonstrate his remorse.  In retrospect he appreciated the potential danger he created with this manouever.

Our client required his vehicle for work.  Kevin had to make his client aware that due to the level of speed the Court would consider imposing a driving ban of up to 56 days.

Use of Click Share Technology to Present Mitigation

driving ban avoided chesterfield motoring solicitor
Chesterfield Magistrates Court

As a Chesterfield motoring solicitor, Kevin knew that the local Magistrates would also know the road in question.  They would be concerned by the driving.  The road is extremely long, however, and where the offence took place was potentially important to the sentencing decision.

As a result Kevin located the area of the incident on his laptop.  He was show this to the sentencing Magistrates via the Click Share system.  He demonstrated that whilst the speed was excessive, it was along one of the straighter parts of the road rather than during the more twisty stretches of the road.

Penalty Points and no driving ban

As a result of his knowledge, Kevin was able to present his client’s case in an extremely effective way.  This, in combination with his expert presentation of personal mitigation, led to the Magistrates’ taking a lenient approach.  Kevin’s client received a fine and penalty points but no driving ban.  This meant that he was able to keep his employment and was understandably delighted with the outcome.

Contact a Chesterfield Motoring Solicitor

If you require the advice and representation of an expert motoring solicitor then please contact Kevin at our Chesterfield office on 01246 283000 or email him here.  Details of our Chesterfield Office can be found here.

Kevin can provide you with detailed and affordable advice as to whether you are able to challenge the prosecution evidence relating to your road traffic offence, or how you are likely to be sentenced following a guilty plea.