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)

Miss Justice fights for motorists and wins!!!!

Miss Jeanette Miller, Founding President and CEO of the Association of Motor Offence Lawyers (AMOL) has truly earned her nickname of “Miss Justice” today after legal action launched by the Law Society against the government was a resounding success.

The saying “from small acorns do oak trees grow” springs to mind as back in September 2009, outraged by the impending implementation of these regulations, Miss Miller launched an e-petition on the no.10 website. By the time the petition closed, it had attracted almost 22,000 signatures:

http://petitions.number10.gov.uk/CostsRecovery.

Despite this strong objection, The Ministry Of Justice proceeded with the implementation of these most unjust rules designed to cap the costs of a successfully acquitted defendant. The 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 today by Lord Justice Elias and Mr Justice Keith - has 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 involve 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.”

Upon hearing the news, Jeanette said:

“I am truly delighted that on this most important issue, justice has been done. The months of hard work and campaigning have paid off to ensure that those who are innocent will not be left with financial ruin to contend with after clearing their names.”

Commenting on the judgment, Law Society President Robert Heslett said:

“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state. The High Court’s ruling strikes down the previous Lord Chancellor’s plans, which would have meant that many people who were ineligible for legal aid and who were acquitted could have been seriously out of pocket because of the limits on the costs that they could recover.
“This was entirely at odds with the accepted principles of justice. It was quite wrong for the previous Government to devise such a scheme and I am delighted that the court has struck it down.
“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state”
- Robert Heslett
“The Society is pleased to have been able to champion the rights of the individual in this way so that people who are wrongly accused of offences to recover the reasonable costs of clearing their name. As the High Court said, this attempted change to the law was of 'some constitutional moment' and we are delighted that this policy cannot now continue.
Law Society Chief Executive Desmond Hudson added:
“Opposition to this policy was a key plank of the Society's Manifesto Delivering Justice in the run up to the general election and opposed by the Conservatives and Liberal Democrats when in Opposition. We are glad that this policy has been halted in its tracks. We recognise that there are severe financial constraints on the Ministry of Justice budget but we would urge the Government not to seek to overturn this judgment.
“Unnecessary and inappropriate prosecutions should be avoided so that innocent people are not forced to go through the trauma and cost of trial process in the first place. Government should look at the system as a whole and we are keen to work with them on this.”


Background notes

Miss Miller campaigned for signatures to her e-petition in 2009 which preceded the judicial review proceedings. She was also greatly involved in assisting the Law Society in compiling their case against the government and disclosed detailed information and statistics from her own specialist motor defence firm, Geoffrey Miller Solicitors, for use in the case. The Law Society’s case was a judicial review of the previous Lord Chancellor’s decision to introduce a scheme to limit the amount of costs that acquitted defendants can recover from central funds.

The case 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.”

Courts are either able to make summary assessments or they can refer cases to be taxed by the National Taxing Team.

Until last October, regulations made under the Act stated that the test to be applied in determining awards of costs was to be the test set out in section 16. Accordingly what was a “reasonable” hourly rate for a solicitors firm was determined by reference to the rates charged by comparable firms with similar expertise and in a similar locality. Equally, in relation to the level of counsel instructed, the proper question was the reasonableness of the instruction.

This scheme came under scrutiny by the MoJ as a result of budget overruns and the impact of a small number of very high cost cases. It decided therefore to take advantage of a power contained in the Act to set rates or scales for payments of costs out of central funds and to introduce a scheme which limited recoverable costs to legal aid rates.

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).

The point at issue in the litigation was relatively simple: can the Lord Chancellor in setting rates or scales decide what is “reasonable” to allow the defendant, even if as a consequence the amount that will be recovered falls well short of the amount the defendant actually incurred?

In his judgment given today, Lord Justice Elias made it clear that the statute does not allow the Lord Chancellor to decide what is reasonable. In setting out a scheme of rates and scales, he has to respect the statutory purpose set out in the Prosecution of Offences Act. The Act was intended to provide reasonable compensation for successful defendants. By implementing rates and scales which did not compensate defendants the Lord Chancellor had acted unlawfully.

For more information about Miss Justice and the work she does, please visit www.motoroffence.co.uk