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)

1 comment:

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