Tuesday, 20 December 2011

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...

Monday, 12 December 2011

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)

Friday, 2 December 2011

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
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.
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]

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
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