Driving disqualifications, Driving bans and 12 points totting up

Our motoring lawyer guide to driving bans. Our expert motoring law barristers provide specialist legal advice, preparation and representation in court and can help you keep your driving license.

What is ‘totting up’?

Accumulating 12 points or more on your license over a three-year period, also referred to as “totting up” means a six month driving ban or longer.

A common scenario of when a ban is imposed is when a series of low-level offences, such as speeding result in several convictions within three years.

The result: an unexpected driving disqualification.  This can come as a shock, especially as the threshold in many cases can be low with some drivers finding that after two convictions for speeding, a high number of points may lead to a mandatory disqualification. Other driving disqualifications result automatically because of the nature of the motoring conviction, for example; serious offences such as drink driving, driving whilst disqualified or dangerous driving, which carry  mandatory driving disqualifications.

What is exceptional hardship?

However, a motorist facing mandatory disqualification can, in certain circumstances, argue “exceptional hardship”. This means that even if 12 or more points are imposed the court can exercise its discretion not to disqualify if an exceptional hardship argument is accepted.

The law has deliberately not defined “exceptional hardship” as individual circumstances can vary from case to case.  It is not enough to say that a person would simple lose their licence. A Motorist has to demonstrate to the magistrates that it is exceptional hardship and not just hardship alone (the point being any motorist who is disqualified will inevitably suffer from hardship). It needs to be demonstrated through arguments and submissions that the criteria is exceptional for preventing a driving disqualification.  The facts and circumstances will be individual in each case, we have represented professionals, professional drivers and business men and women who have successfully demonstrated that their driving licence is an integral part of their work.

What is involved in an exceptional hardship hearing?

The driver will give evidence to the magistrates’ court.  If  they are not represented by a barrister or solicitor then the hearing takes place with the prosecutor asking the person a series of questions. However, if a person is represented by the lawyer, then an opening statement is made to the court by the lawyer, the person is then asked questions. Instructing an expert motoring barrister is crucial to the successful outcome before the magistrate’s court. The preparation of your case is equally important as the presentation in the court.

Exceptional hardship arguments can be made on the following grounds, often are several ground, taken together, that a court will consider;

  • The nature of the employment is entirely dependent on the ability to drive and the consequences of a driving ban.
  • The disqualification would disproportionately affect the person livelihood and income
  • Medical and health related issues, which are dependent on a person ability to drive.
  •  The effect on third parties including family members and those who are dependent on a driver’s ability to drive.
  • Person is residing in an area which is isolated and there are no means of travelling to and from his place of employment because of which he may even lose his/her job.

We always advise that getting legal advice as early as possible is crucial The first question many anxious drivers ask is whether they have a realistic prospect of arguing against a driving disqualification in court.

 We provide sound legal and practical advice and strong representation in court. If you livelihood and life depend on your ability to drive, a court needs to be persuaded. Through preparation of your case and arguments as well as effective and persuasive advocacy are key.  We have represented many drivers facing a mandatory driving disqualification, See our Case Studies below.

Appeal a Driving Ban: Our Successes and Case studies.

If you have had a driving ban imposed in Magistrates Court you have an automatic right to appeal to the Crown Court.

Our expert Motoring Law Barristers, have successfully argued exceptional hardship and on appeal Crown Courts have accepted on appeal as reasons for overturning or substantially reducing a driving disqualification.

Suspending the driving ban until the appeal is heard.

There is a right to immediately have a driving disqualification suspended. A procedure needs to be followed notifying the magistrate’s court of your intention to appeal. Sadly many solicitors, including so-called specialist driving solicitors, fail to advise clients on the right to making an application to suspend the disqualification until an appeal is heard (we have dealt with a number of appeal were a client has not been advised of this by his current motoring solicitor)

Once instructed, we will immediately advise the Crown Court of your appeal and make the necessary application to have your driving disqualification suspended.

Preparation, preparation, preparation!

We thoroughly analyse your papers. In over 90% of our Crown Court appeals concerning driving disqualifications, we have advised clients and on obtaining new or further evidence which has significantly improved the prospects of appeal.

We do not solely rely on the documents prepared and submitted by solicitors in the magistrate’s court.

We carefully consider whether all of the legal arguments which should have been advanced were argued before the magistrate’s court.

Which driving ban lawyer: Road traffic Barrister  or  Road Traffic Solicitor?

Criminal BarristerThe role of a motoring lawyer has changed considerably in recent years. Previously, a person charged with motoring offence would need to instruct a motoring solicitor who would then in turn instruct a motoring barrister to appear in court. Not only did this represent a higher fee for the client   would also mean a replication of labour.

Traditionally, if you needed advice from a lawyer specialising in  road traffic law you would approach a solicitor who specialised in this area, and pay him for his advice. Is this necessary if you could instruct a barrister for both his advice and representation in court directly?

The Bar Council of England and Wales, in their wisdom,did away with an archaic and illogical rule which prevented the public from instructing a barrister directly unless through a solicitor. The rule was abolished and ‘direct access’ or ‘public access’ was born.

What does direct access mean for person charged with road traffic offences?

Our services provide a direct access to an expert motoring barrister which means in all motor matters including driving bans and driving disqualifications, you can instruct a barrister without the need for a solicitor.

In certain circumstances a case may be inappropriate for a barrister to take instructions directly from a member from public. However, it is notable that in all the cases concerning driving disqualifications and driving disqualifications appeals,all our cases have been dealt with by a direct access barrister. This means direct access has been suitable in 100% of the cases where we have been instructed in matters concerning driving disqualifications.

What are the benefits of instructing a motoring barrister directly?

Barristers are specialist advocates and have many years of specialist advocacy training unlike solicitors. Barristers also provide expert advice on the law to solicitors, other professional bodies and members of the public. Even specialist motoring solicitors would seek the expert opinion of a barrister on the factual and legal issues of a case.

The important question that you should ask yourself are:

  1. Can my Case be handled by a barrister without the assistance from a motoring solicitor?
  2. Am I able to follow my barrister’s instructions without a solicitor?
  3. If my barrister drafts the documents on my behalf, can I post these?
  4. If I receive correspondence, Can I send this to my barrister?

The above demonstrates how easy the process of instructing a barrister has become for the full rules on direct access, please click here

The Restaurateur:

Case study: The significance of drafting the appeal notice correctly:

In a very recent case, demonstrated why it’s so important to properly and expertly draft an appeal notice. Our client was appealing her driving disqualification on the basis that she had now accumulated 12 points.

There was compelling mitigation in relation to her work, which had not being fully advanced on her behalf the magistrates call.

The Crown Court judge commended our barrister, for succinctly, comprehensively and persuasively drafting the appeal notice, which reduces the need for elaborate oral submissions as to why this driver should keep a license

The Crown Court judge and two magistrates hearing the appeal, took less than two minutes and reducing the driving disqualification with the effect that the license was reinstated immediately. (Read more here)

Case studies:

The Senior Surveyor

  • A 46 years old, senior surveyor and project manager for a leading high end basement conversions. It was successfully argued that as the client’s job was multifaceted and driving was an integral part of his to attend clients and projects all over the UK; as far afield as Devon, Dorset, Essex, Cambridge, Nottingham, Glasgow, Cannock and Yorkshire.
  • Our client was speeding in an unfamiliar stretch of the road where the speed limit according to the summons was 30 mph and was travelling at a speed of 38 mph. He had previous points on his licence and was given the minimum points on each occasion. Nonetheless he had accumulated 12 points on his licence.

The Court accepted the strain of travel for his partner (from Kent to Soueth West England), by car on a weekly basis, for the care of her mother coupled with the disproportionate impact  the effect of losing his license and his employment, resulted in no driving ban being imposed.

His partner’s mother was  terminally ill and was being cared for in a hospice. The Court accepted the strain of travel for his partner (from Kent to Soueth West England), by car on a weekly basis, for the care of her mother coupled with the disproportionate impact  the effect of losing his license and his employment, resulted in no driving ban being imposed.

If your driving license is your life line, contact us now for free initial advice from a barrister experienced in driving disqualification and driving bans. Whilst we can’t guarantee results, we can say that being represented in court by an expert Motoring Barrister will significantly improve your chances of retaining your driving license and minimising any punishment.

Good and thorough preparation is the key and much of our work is based on referrals from existing and happy clients.

Call: 0208 123 9999       Email: info@criminal-barrister.co.uk    or use our Contact Form

Our Guide to Driving Disqualifications.

The two tables below indicate which motoring offences attract a mandatory driving disqualification and which are discretionary.

Discretionary disqualification offences:

General Nature of Offence/ Provision

Punishment/ Penalty Points

Disqualification

Contravention of temporary prohibition or restriction.

RTRA Section 16 (1)

Level 3 on the Standard Scale

Penalty Points

3-6 or 3 (fixed penalty)

Discretionary if committed in respect of a speed restriction

Use of special road contrary to scheme or regulations. RTRA Section 17 (4)

Level 4 on the Standard Scale

Penalty Points

3-6 or 3(fixed penalty) if committed in respect of a speed restriction, 3 in any other case.

Discretionary if committed in respect of a motor vehicle otherwise than by unlawfully stopping or allowing the vehicle to remain at rest on a part of a special road on which vehicles are certain circumstances permitted to remain at rest.

Contravention of pedestrian crossing regulations.

RTRA Section 25 (5)

Level 3 on the Standard Scale

Penalty Points

3

Discretionary if committed in respect of a motor vehicle.

Not Stopping at School-Crossing RTRA Section 28 (3)

Level 3 on the Standard Scale

Penalty Points

3

Discretionary if committed in respect of a motor vehicle.

Contravention of order relating to street playground

RTRA Section 29 (3)

Level 3 on the Standard Scale

Penalty Points

2

Discretionary if committed in respect of a motor vehicle.

Exceeding Speed Limit

RTRA Section 89 (1)

Level 3 on the Standard Scale

Penalty Points

3-9

Discretionary

Careless and inconsiderate, driving.

RTA Section 3

Level 5 on the Standard Scale

Penalty Points

3-6 (fixed penalty)

Discretionary

Being in charge of mechanically propelled vehicle when unfit to drive through drink or drugs RTA Section 4 (2)

3 months or level 4 on the Standard Scale or both.

Penalty Points

10

Discretionary

Being in charge of a motor vehicle with excess alcohol in breath, blood or urine

RTA Section 5 (1) (b)

3 months or level 4 on the Standard Scale or both.

Penalty Points

10

Discretionary

Failing to co-operate with a preliminary test RTA Section 6

Level 3 on the Standard Scale

Penalty Points

4

Discretionary

Failing to provide specimen for analysis or laboratory test RTA Section 7

In any other case, 3 months or level 4 on the standard scale or both

Penalty Points

10 in any other case

Discretionary in any other case

Failing to allow specimen to be subjected to laboratory test. RTA Section 7A

In any other case, 3 months or level 4 on the standard scale or both.

Penalty Points

10 in any other case

Discretionary in any other case

Leaving Vehicle in dangerous positions

RTA Section 22

Level 3 on the Standard Scale

Penalty Points

3

Discretionary if committed in respect of a motor vehicle.

Carrying  passenger on motor-cycle contrary to section 23

RTA Section 23

Level 3 on the Standard Scale

Penalty Points

3

Discretionary

Failing to comply with traffic directions.

RTA Section 35

Level 3 on the Standard Scale

Penalty Points

3

Discretionary, if committed in respect of a motor vehicle by failure to comply with a direction of a constable, traffic officer or traffic warden.

Failing to comply with traffic signals

RTA Section 36

Level 3 on the Standard Scale

Penalty Points

3

Discretionary, if committed in respect of a motor vehicle by failure to comply with an indication given by a sign specified for the purposes of this paragraph in regulations under section 36.

Using vehicle in dangerous conditions, etc. RTA Section 40A

Level 4 on the Standard Scale in any other case

Penalty Points

3

Discretionary in any other case

Breach of requirement as to brakes, steering-gear or tyres.

RTA Section 41A

Level 4 on the Standard Scale in any other case

Penalty Points

3

Discretionary

Breach of requirements as to control of vehicle, mobile telephone etc. RTA Section 41D

Level 3 on the Standard Scale in any other case

Penalty Points

3

Discretionary

Driving otherwise than in accordance with a licence.

RTA Section 87 (1)

Level 3 on the Standard Scale

Penalty Points

3-6

Discretionary in a case where the offenders driving would not have been in accordance with any licence that could have been granted to him.

Driving after making false declaration as to physical fitness. RTA Section 92 (10)

Level 4 on the Standard Scale

Penalty Points

3-6

Discretionary

Driving after such a failure

RTA Section 94 (3) and that subsection as applied by RTA section 99D or 109C

Level 3 on the Standard Scale

Penalty Points

3-6

Discretionary

Driving after refusal of a licence under section 92(3), revocation under section 93 or service of a notice under section 99C or 109B.

RTA section 94A

6 months or Level 5 on the Standard Scale or both

Penalty Points

3-6

Discretionary

Driving with uncorrected defective eyesight, or refusing to submit to test of eyesight

RTA Section 96

Level 3 on the Standard Scale

Penalty Points

3

Discretionary

Driving while disqualified.

RTA Section 103 (1) (b)

(a)    6 months or level 5 on the standard scale or both.

(b)   6 months or statutory maximum or both

(c)    12 months or a fine or both.

Penalty Points

6

Discretion

Discretionary

Using motor vehicle while uninsured or unsecured against third party risks.

RTA Section 143

Level 5 on the Standard Scale

Penalty Points

6-8

Discretionary

Failing to stop after accident and give particulars or report accident. RTA Section 170 (4)

6 months or level 5 on the Standard Scale or both

Penalty Points

5-10

Discretionary

Failure of person keeping vehicle and others to give police information as to identity of driver, etc., in the case of certain offences

RTA Section 172

Level 3 on the Standard Scale

Penalty Points

6

Discretionary if committed otherwise than virtue of subsection (5) or (11)

Driving Disqualifications which are Mandatory:

General Nature of Offence/ Provision Related Punishment/ Penalty Points Disqualification
Causing Death by dangerous drivingRTA Section 1 14 yearsPenalty Points3-11 Obligatory
Dangerous DrivingRTA Section 2 (a)    6 months or the statutory maximum or both.(b)   2 years or a fine or both.Penalty Points3-11 Obligatory
Causing death by careless or inconsiderate, driving.RTA Section 2B (a)    12 months (in England and Wales) or 6 months (in Scotland) or the statutory maximum or both.(b)   5 years or a fine or both.Penalty Points3-11 Obligatory
Causing death by driving; unlicensed, disqualified or uninsured drivers.RTA Section 3ZB (a)    12 months (in England and Wales) or 6 months (in Scotland) or the statutory maximum or both.(b)   2 years or a fine or both.Penalty Points3-11 Obligatory
Causing death by careless driving when under influence of drink or drugs.RTA Section 3A 14 years or a fine or both.Penalty Points3-11 Obligatory
Driving or attempting to drive when unfit to drive through drinks or drugs. RTA Section 4 (1) 6 months or level 5 on the standard scale or both.Penalty Points3-11 Obligatory
Driving or attempting to drive with excess alcohol in breath, urine or blood. RTA Section 5 (1) (a) 6 months or level 5 on the standard scale or bothPenalty Points3-11 Obligatory
Failing to provide specimen for analysis or  laboratory test RTA Section 7 Where the specimen was required to ascertain ability to drive or proportion of alcohol at the time offender was driving or attempting to drive, 6 months or level 5 on the standard scale or both.Penalty Points3-11 in case mentioned in column 4(a) Obligatory in case mentioned in column 4(a)
Failing to allow specimen to be subjected  to laboratory test RTA Section 7A Where the test would be for ascertaining ability to drive or proportion of alcohol at the time offender was driving or attempting to drive, 6 months or level 5 on the standard scale or both.Penalty Points3-11 in case mentioned in column 4(a) Obligatory in case mentioned in column 4(a)
Motor racing and speed trials on public ways.RTA Section 12 Level 4 on Standard Scale.Penalty Points3-11 Obligatory
Using Vehicle in Dangerous condition etc. RTA Section 40A Level 5 on the standard scale if committed in respect of a good vehicle or a vehicle adapted to carry more than eight passengers.Penalty Points3 Obligatory if committed within 3 years of a previous conviction  of the offender under section 40A

 

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