When Points Don't Mean Prizes
According to figures recently released by the Driver and Vehicle Licensing Agency (DVLA)
, more than one in four drivers who accumulated 12 penalty points on their driving licence last year avoided a driving disqualification.
Perhaps the most striking example was that of a man from Stockton-on-Tees near Middlesbrough, who managed to accumulate 54 points on his licence. His offending began three years ago when he was convicted of using a mobile phone while driving and scored three points on his licence. He was convicted of the same offence on a further six occasions over the next four months. He was also twice guilty of failing to tell police who was driving his vehicle when a suspected offence was committed. The unidentified driver was finally banned last month, after a newspaper submitted a freedom of information request to the DVLA. The DVLA says that 31,100 drivers who reached 12 points did lose their licences, but 11,226 kept theirs. How did these motorists manage it?
What does the law say?
Section 35 Road Traffic Offenders Act 1988 provides that a motorist who accumulates 12 or more penalty points in a 3 year period shall be disqualified for a period of 6 months unless the court finds that there are 'mitigating circumstances'. If the court is satisfied that there are 'mitigating circumstances' then the court has a discretion not to disqualify the motorist at all, or to disqualify them for a shorter period.
What is a mitigating circumstance?
Section 35 stipulates what cannot amount to a mitigating circumstance.
The court cannot consider anything that tends to make the offence less serious. A motorist could not go into court for example and argue that they should not be banned for six months because they were 'only' travelling at 37 mph in a 30 limit or that there were no other cars on the road at the time. Similarly the court cannot consider anything that has been argued in the last three years. Finally the court cannot consider hardship other than 'exceptional hardship'.
In practice any motorist who wishes to advance an argument of this nature will have to go into the witness box and give evidence about the affect a
driving disqualification would have on them and / their family / business etc. There is no legal test for exceptional hardship - although the motorist must persuade the court on a balance of probability that a disqualification would cause 'exceptional hardship'.
In our experience, courts adopt a robust approach when considering these arguments and professional advice is vital. Typically the loss of a job will not be sufficient, although it could be depending on the circumstances. The court will look at the affect a ban might have on a motorist's family as well as the individual. Blake Lapthorn's
Motoring Offences team has represented motorist's who would have lost their job in the event of a ban and and if they lost their job the family finances would be such that the family could not afford the mortgage and would have to move house and take the children out of school.
The team also has experience of representing those who need their licences to assist family members who need to go to hospital / other health related appointments. One client in the Thames Valley needed to take her mother to hospital each week and was the only relative in the area. The alterative was for an elderly lady to take public transport to the hospital (which also happened to be a long way from where she lived because of the specialist nature of the treatment.) The court took a sympathetic view in those circumstances.
What if I could not argue 'exceptional hardship'
That is not the end of the matter.
The important point to note about section 35 is that it prescribes what cannot be taken into account by the court rather than what can.
The Motoring Offences team has successfully argued in the Magistrates Courts and the Crown Court that the successful completion of a driver improvement course can amount to 'mitigating circumstances' because it is evidence of the rehabilitation of the motorist.
Many recent clients have voluntarily attended such courses that have been tailored to their own circumstances and designed to address any historic driving faults and problems. These courses include an audio presentation at the start of the day and practical, intensive on-the-road instruction. We have been impressed with the responses we have received from motorists who have attended these courses and the courts are now beginning to look favourably on motorists who successfully complete the courses - thereby demonstrating a willingness to improve their standard of driving.
So for any motorist about to reach 12 points, they should obtain legal advice as quickly as possible. It will not be easy to avoid a disqualification, however there will be an opportunity for the motorist to have their say and it is important that they say it as loudly and as effectively as possible.
by: Philip Somarakis
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