Is A Drink Driving Conviction For Life, Not Just for Christmas?

Guest Blog By Stephen Oldham, Solicitor Advocate at Geoffrey Miller Solicitors

As a specialist motoring solicitor I often find myself involved in court cases against the police.

This Christmas I have been pleased to see some good advice offered by Thames Valley Police via their drink driving twitter campaign.

On Tuesday December 20th they tweeted “A criminal record is for life, not just for Christmas.” The tweet was alongside their very interesting “Badvent” Calendar which caught my attention too!

I am often asked if a court conviction for drink driving counts as a criminal conviction. The answer is yes. It is also true that the conviction stays on your police record for ever. Some job applications (e.g. solicitor, police officer, teacher, many jobs in the health service) require you to declare the conviction forever. In other cases the Rehabilitation of Offenders Act 1974 applies. A person convicted of drink driving is considered to have been rehabilitated after 5 years if they were given a fine or a community sentence and after 7 years if they were sent to prison. The conviction stays on your driving licence for 11 years and counts for 10 years. There is a minimum disqualification from driving of 3 years for a second drink-driving offence in that 10 year period. Plus a repeat offender is classed as a High Risk Offender and would have to undergo a medical before they were allowed their licence back.

So a drink driving conviction has far reaching consequences....it may not be officially with you for life but it will certainly have lasting repercussions well after the festive period is over...

Can DVLA force drink drivers to take a medical?

Recent stories in the press have suggested as many as 8000 drink drivers received their licences back erroneously as they should have been forced to undergo a medical.

The problem has arisen because the courts have not been telling DVLA what the alcohol reading of a convicted motorist was for the last 20 years. This was spotted in August 2011 and thousands of people in the relevant category have been given their driving licence back without doing a medical.

The relevant legislation is ss.94(4) and (5) Road Traffic Act 1988. The section says that the Secretary of State may require the holder of a licence to subject himself to a medical examination if the prescribed circumstances apply.

Powers of the Secretary of State are exercised by the DVLA.

The prescribed circumstances are defined in reg 74 of the Motor Vehicle (Driving Licences) Regulations 1999. A High Risk Offenders is a motorist who was convicted of being 2 ½ times the drink drive limit, failing to provide a specimen or two drink drive offences in 10 years. Specific provisions apply to drivers in this category, yet in as many as 8000 cases, it would appear that the DVLA has failed to apply them.

However, what may seem unfair to the high risk offender is that even if someone was given their licence back they can still be required to do the medical retrospectively. They have to be given a "reasonable time" to do the medical and this is open to interpretation. If they do not comply then their licence may be revoked.

The medical costs £94 and involves the taking of a blood sample.

The alternatives are as follows:

1. Doing the medical.

2. Not doing the medical. Having licence revoked by DVLA and appealing the decision to revoke to the magistrates’ court (procedure under s.100 RTA 1988).

3. Judicial review of DVLA decision to require a medical . (Very expensive and only realistic if it has been a very long time since the licence was given back. Could not say what prospects of success would be.)

4. Because all powers are discretionary it is possible to challenge the DVLA and ask them to reconsider any decision. Once again it is difficult to imagine why they would waive the requirement to undertake a medical but it may be possible.

Set out below are ss94(4)-(5) RTA 1988

(4)If the prescribed circumstances obtain in relation to a person who is an applicant for, or the holder of, a licence of if the Secretary of State has reasonable grounds for believing that a person who is an applicant for, or the holder of, a licence may be suffering from a relevant or prospective disability, subsection (5) below applies for the purpose of enabling the Secretary of State to satisfy himself whether or not that person may be suffering from that or any other relevant or prospective disability.

(5)The Secretary of State may by notice in writing served on the applicant or holder—

(a)require him to provide the Secretary of State, within such reasonable time as may be specified in the notice, with such an authorisation as is mentioned in subsection (6) below, or

(b)require him, as soon as practicable, to arrange to submit himself for examination—

(i)by such registered medical practitioner or practitioners as may be nominated by the Secretary of State, or

(ii)with respect to a disability of a prescribed description, by such officer of the Secretary of State as may be so nominated,

for the purpose of determining whether or not he suffers or has at any time suffered from a relevant or prospective disability, or

(c)except where the application is for, or the licence held is, a provisional licence, require him to submit himself for such a test of competence to drive as the Secretary of State directs in the notice.

Reg 74 Motor Vehicle (Driving Licences) Regulations 1999

74.—(1) Subject to paragraph (2), the circumstances prescribed for the purposes of subsection (5) of section 94 of the Traffic Act, under subsection (4) of that section, are that the person who is an applicant for, or holder of, a licence—

(a)has been disqualified by an order of a court by reason that the proportion of alcohol in his body equalled or exceeded—

(i)87.5 microgrammes per 100 millilitres of breath, or

(ii)200 milligrammes per 100 millilitres of blood, or

(iii)267.5 milligrammes per 100 millilitres of urine;

(b)has been disqualified by order of a court by reason that he has failed, without reasonable excuse, to provide a specimen when required to do so pursuant to section 7 of the Traffic Act; or

(c)has been disqualified by order of a court on two or more occasions within any period of 10 years by reason that—

(i)the proportion of alcohol in his breath, blood or urine exceeded the limit prescribed by virtue of section 5 of the Traffic Act, or

(ii)he was unfit to drive through drink contrary to section 4 of that Act.

(2) For the purposes of paragraph (1)(a) and (b) a court order shall not be taken into account unless it was made on or after 1st June 1990 and paragraph (1)(c) shall not apply to a person unless the last such order was made on or after 1st June 1990.

If you have any questions about this latest development in driving driving law, please contact our dedicated and expert team for a free consultation on 08000 85 27 84.

(Thanks to Stephen Oldham, Solicitor Advocate at Geoffrey Miller Solicitors for his research on this issue)

Winter Motoring Tips 2011

This week the teams in our London and Manchester offices have noticed a real dip in temperatures and an increase in enquiries about winter motoring issues. We find this is the time of year when unprepared drivers find themselves facing prosecution for motoring offences or even worse, involved in accidents that could have been avoided.

The Highway Code is not just for learner drivers but should be consulted every now and then even by the more experienced driver for the latest guidance on how to stay safe on the roads. Failure to follow the codes can be sufficient for the courts to find you guilty of careless driving carrying between 3-9 penalty points or a possible ban so it is worth taking a few moments to refresh your memory on some very useful tips from this extract from the Highway Code for winter driving:

Icy and snowy weather
228
In winter check the local weather forecast for warnings of icy or snowy weather. DO NOT drive in these conditions unless your journey is essential. If it is, take great care and allow more time for your journey. Take an emergency kit of de-icer and ice scraper, torch, warm clothing and boots, first aid kit, jump leads and a shovel, together with a warm drink and emergency food in case you get stuck or your vehicle breaks down.
229
Before you set off
• you MUST be able to see, so clear all snow and ice from all your windows
• you MUST ensure that lights are clean and number plates are clearly visible and legible
• make sure the mirrors are clear and the windows are demisted thoroughly
• remove all snow that might fall off into the path of other road users
• check your planned route is clear of delays and that no further snowfalls or severe weather are predicted
[Laws CUR reg 30, RVLR reg 23, VERA sect 43 & RV(DRM)R reg 11]

230
When driving in icy or snowy weather
• drive with care, even if the roads have been treated
• keep well back from the road user in front as stopping distances can be ten times greater than on dry roads
• take care when overtaking vehicles spreading salt or other de-icer, particularly if you are riding a motorcycle or cycle
• watch out for snowploughs which may throw out snow on either side. Do not overtake them unless the lane you intend to use has been cleared
• be prepared for the road conditions to change over relatively short distances
• listen to travel bulletins and take note of variable message signs that may provide information about weather, road and traffic conditions ahead
231
Drive extremely carefully when the roads are icy. Avoid sudden actions as these could cause loss of control. You should
• drive at a slow speed in as high a gear as possible; accelerate and brake very gently
• drive particularly slowly on bends where loss of control is more likely. Brake progressively on the straight before you reach a bend. Having slowed down, steer smoothly round the bend, avoiding sudden actions
• check your grip on the road surface when there is snow or ice by choosing a safe place to brake gently. If the steering feels unresponsive this may indicate ice and your vehicle losing its grip on the road. When travelling on ice, tyres make virtually no noise

We are happy to hear from motorists with any kind of motoring law enquiry, whether you are looking for guidance before you drive or after you have encountered a driving issue. We provide expert advice without charge so you have nothing to lose...call now 08000 85 27 84

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Here we go again - Please sign and share this petition

Innocent motorists to be hit hardest by government U-turn on costs rules
SIGN AND SHARE THIS PETITION NOW!


http://epetitions.direct.gov.uk/petitions/5322

In September 2009, outraged by the impending implementation of motoring defence cost capping regulations, President of the Association of Motor Offence Lawyers (AMOL), Jeanette Miller, launched an e-petition on the no.10 website. By the time the petition closed, it attracted almost 22,000 signatures.

Despite this strong objection, The Ministry Of Justice proceeded with the implementation of these unjust rules designed to cap the costs of a successfully acquitted defendant. The 2009 petition attracted the support from many high profile figures including 26 QC’s and the Criminal Bar Association have fully endorsed the sentiments behind the petition. The petition was also backed by many legal and motoring organizations. Following the petition, the Law Society took up the helm and launched judicial review proceedings against the government in January 2010.
The judgment - handed down on June 15 2010, by Lord Justice Elias and Mr Justice Keith - ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases. The court said:

“The new regulations involved a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.”

When this judgment was announced, the current government confirmed they would not appeal the ruling. However, rather than take heed of all of the concerns the introduction of these rules raised, they have announced an intention to seek to introduce the rules via a parliamentary bill.
The original case that was won by the Law Society concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.”

This scheme came under scrutiny as a result of budget overruns and the impact of a small number of very high cost cases. The government’s response to budgets being exceeded was not to scrutinize the number of unnecessary and inappropriate prosecutions but instead, they introduced a scheme which limited recoverable costs to legal aid rates. This would inevitably mean that refunds would be for a fraction (around 20%) of the true cost a defendant pays in proving their innocence.

The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800).

What are the proposals?

This time around, the government’s proposals will be debated in Parliament. Last time they were introduced with no debate. If passed by Parliament, they are expected to become law in or around April 2012 and will mean:

1. There will be no Defendants' Costs Orders in any circumstances for companies/corporate bodies etc - they will have to bear the cost themselves or insure. This will affect companies prosecuted for health and safety matters and will also affect companies prosecuted by VOSA and for non-VOSA matters such as failing to furnish information.

2. The government have also proposed that there be no Defendants' Costs Orders for individuals in the Crown Court as contributory legal aid is available in all case - In other words, you are expected to therefore take legal aid or bear the cost entirely for your own privately paid lawyer.

3. In the Magistrates' Court (where the majority of motoring cases are heard) Defendants' Costs Orders will be available for acquitted individuals but these will be capped at legal aid hourly rates. Currently legal aid rates are around £60.00 per hour.

What can be done?

When asked what her intentions are this time around, Miss Miller who was dubbed as “Miss Justice” after the success of her previous campaign, commented:

“I felt very proud of what we had managed to achieve in 2010. The ordinary motorist stood up to the government and we made our concerns known. While my petition was certainly not the reason the regulations were repealed, in apathetic times we stood up to a grossly unfair proposition.
So when I learned of some proposals tagged onto the end of Ken Clarke’s parliamentary bill I was devastated to say the least. Because these proposals have been included alongside proposals to cut the legal aid budget which is an entirely separate cause altogether, I suspect the government were hoping they would be lost in the detail. From the lack of knowledge of the proposals amongst my contemporaries, they succeeded!

I have launched a second petition and am meeting with the Law Society later this month to discuss what we can do to ensure we highlight all of the possible problems that stem from these proposals to those who decide on their implementation. This time around we know our concerns will be presented to Parliament so the purpose of the petition is simply to demonstrate the level of protest against the plans.”

The new petition can be found on the number 10 site:

http://epetitions.direct.gov.uk/petitions/5322

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Loop Holes in British Motoring Offences

Miscarriage of Justice Dispensed By “Computer Says No!” Culture Within The Magistrates’ Courts

In the Little Britain sketch show the moody character who blindly relies on whatever her computer tells her has produced one of the comic duo’s most successful catchphrases, “The Computer Says No!”

Mr David Wannell, a Marketing Consultant based in Arundel, was certainly not laughing when he was convicted for failing to provide a specimen based on what a machine said. I was shocked when the Magistrates at Mid Sussex Magistrates’ Court chose to ignore one of the strongest expert testimonies I had come across saying the machine was faulty. This case is even more relevant now that the government's budget cuts will most likley lead to more shoddy prosecutions than ever.

When stopped by the police if you fail to provide or fail a roadside breath test, the Police take you back to the Police Station to give an evidential breath test. Occasionally they will ask for a blood or urine sample but not without good reason. However, if you refuse to blow into the machine at the Police Station, this is classed as an entirely separate offence of Failing to Provide a Specimen. To deter people from deliberately refusing to co-operate at the police station, the guideline penalty for this offence is a 24 month ban whereas the minimum penalty for drink driving is a 12 month ban.Problems often arise with the machines because it can be difficult to blow into them so they record a satisfactory reading. Some machines require a steady slow breath whereas others require a strong blow into them. You only have a limited time to blow a reading that registers and if you fail to give two complete samples during that time you will face prosecution for the failing to provide offence. The only defence to this offence is if you have a reasonable excuse for failing to provide. This could be, for example, if you suffer with asthma (although you should have told the police about any medical condition that makes it difficult to blow before even beginning the test.)Two samples are required because if there is a big breath difference between the samples, the machine is meant to flag this up to the officer so that they choose to take a blood or urine sample. This is to protect the defendant so as to be sure the police have an accurate reading.In Mr Wannell’s case, when the maintenance log for the machine he was trying to blow into was reviewed by his solicitors and forensic experts, it was noticed that there were around 9 occasions where there are recorded serious breath differences but the instrument did not flag these up by displaying the error message BREATH DIFFERENCE. The log was updated manually by the police officer who conducted the tests and so while one mis-transcription may be possible, nine were unlikely – and in the log of the instrument in Mr Wannell’s case, all of the logs where there was a big difference between the two readings, the logs were recorded by different officers. If the machine did not show an error message when there were big differences between the two readings, this suggests a serious software problem with the machine and added to his defence that he was unable to blow into the machine rather than unwilling to.

As if this was not enough to convince the Magistrates that something was up there were also a high numbers of tests where the breath readings recorded were below the legal limit. This should have given rise to suspicion because if they blew over the limit at the roadside, it is unlikely their alcohol levels will have dropped by the time they reached the police station. With a correctly operating machine, there should be very few tests giving results below 30mg/100ml. In Mr Wannell’s case the instrument he was required to blow into had had 77 recorded instances where tests gave results below the legal limit suggesting that either no roadside test was carried out or that the roadside testing instruments used were not properly calibrated.

The number of breath differences recorded in the log [52] was substantially in excess of what the experts consulted would expect and suggested to them that there was a serious systemic problem with the infra-red system in this instrument. This conclusion was reinforced by the number of associated failures [89].

This log recorded approx 730 tests on suspected persons and thus the rate of problems was nearly 20%. There was in addition no pattern to these problems which appear to be random with failures to provide samples per page varying from zero to 7.

Despite all of these problems being explained by experts at his trial on 30 June 2008 at the Magistrates’ Court, the lay Magistrates chose to convict leaving Mr Wannell in the frustrating and devastating position of having to raise the funds to appeal a conviction that should never have happened.

I was shocked when David was convicted. I had no doubt the evidence we had gathered would be enough to secure his acquittal but as if often the case in Magistrates’ Courts, the people entrusted with the task of hearing the case either did not understand the complex scientific issues raised or they just chose to rely on the machine blindly despite the evidence we presented to cast significant doubt on its reliability and accuracy.

This was no motoring loophole but involved a genuinely innocent motorist who was the victim of a faulty machine and a court system that is crying out for review. Thankfully we went on to overturn the conviction at Lewes Crown Court but Mr Wannell paid handsomely to clear his name. His legal bill came to over £20,000. He was eventually refunded in full by the court but to those who cannot afford to pay for justice to be done, this is simply not good enough....