Legal Frequently Asked Questions
Emma Patterson from Patterson Law.
Q: I have just received a Summons to Court for speeding at 65mph in a 30mph limit. I couldn’t see any signs telling me it was a 30mph zone, the road was quite wide and I assumed it was a 60mph limit. If there were no signs up, can I challenge it? If not am I looking at a ban?
If there was a system of street lighting not more than 200 yards apart then this indicates that a 30mph limit is in force. In fact, the Police are generally prohibited from erecting 30mph speed signs if there are streetlights. Although, if there were no streetlights then the 30mph speed limit must be indicated by road signs. If this was not the case then you may have a defence.
If we cannot challenge it, then yes, you would be facing a ban. The speed alleged is very high and so the Court will take this seriously. The Magistrates have guidelines to decide the sentence, which only provide for speeds up to 60mph in a 30mph limit, for which the recommended sentence is either a 7-56 day discretionary ban or 6 penalty points. The speed alleged is 5mph above the highest bracket in the guidelines so a ban is likely, and you will need to present mitigation to the Court to try to keep this to a minimum. However, the Court does not have to ban you; it will depend on whether you have strong mitigation to avoid a disqualification. We have a great track record in helping people to avoid a ban in these circumstances so call us and we can provide some further free advice.
Q: I was sat in a traffic jam last week when my phone started to ring. My phone was on my lap and I just swiped the screen to answer it then pressed the speakerphone button so that I could talk without holding it. A Police Officer saw me and told me I would receive a Court summons for driving whilst using a mobile phone. I thought this would be okay as I was stationary and there was no chance of the traffic moving because there had been an accident ahead.
Unfortunately it is an offence to use your phone even when stationary. If the engine is running and you are on a public road then you would be considered to be driving. Similarly, even though you only touched the screen twice, the Courts interpret the term ‘using’ very widely and would be likely to find that even touching the screen just to put it on speakerphone would be using it. You would be better to plead guilty and present a ‘Special Reasons’ argument on the basis that you were stationary and did not pose a risk to any other road user. If the Court agree with and find Special Reasons, they have the discretion to not give you points.
Q: I have been summonsed to Court for ‘failing to provide driver information’. A few months ago I received a letter from the police saying that my car had been recorded travelling through a red light and they wanted to know who was driving it. When I got the letter I tried to remember who it was but I just couldn’t. I knew it would have been my wife or me, but the problem is that at the time her car was in the garage so we were both using mine. I would drive to work in the morning and collect her in the afternoon, but this offence happened in the evening, probably when one of us was on the way to the shops, but I just couldn’t remember. I did write to the police to explain but they just sent me a summons to court. Because I didn’t give the information they asked for I assume I am guilty, but I have seen online that I will receive 6 points for this offence and because I’ve already got 6 on my licence I’m worried I’ll be disqualified for 6 months for totting up 12 points. I am the sales manager for my company and drive nearly 50,000 miles a year, and I just would not be able to survive without a licence. Is there anything I can do?
Firstly, I would not advise that you plead guilty to the allegation. If you are the registered keeper of the vehicle, you will have a defence if you can show you did not know who was driving at the time and further that you have exercised reasonable diligence to try to ascertain the driver’s details. We need to examine in more detail why you did not know who was driving and the steps you have taken to try to find out. We might be able to persuade the Crown Prosecution Service to withdraw the proceedings against you. We persuade the CPS to withdraw prosecutions in over 82% of our cases and we would stand a good chance of achieving that outcome.
However, even if 6 points were endorsed on your licence a 6 month ‘totting’ ban is not inevitable. The court has a discretion not to disqualify depending on whether a ban would cause you exceptional hardship. Therefore we would need to discuss why you need your licence for work and without it whether you would lose your job, and if so hardship this would cause to you and your family. These arguments are notoriously difficult to present, but again we have a fantastic success rate doing so, avoiding a ban in nearly 90% of cases. Please feel free to contact us for some further advice.
Q: Last week I was convicted at court of failing to give a specimen of breath at a police station, and I was disqualified for 12 months. I can't believe I was disqualified for 12 months. The police had no right to ask me for a breath sample, so I refused. It happened because I had some friends round for the football and we were having a few beers. At one point I went out to the car to get some more cans that I had bought earlier, but when I went outside there was a police car passing. It stopped and the officer who got out told me that I was going to drive. I told them that I wasn't and I was just getting some beers. He asked me for a specimen of breath and I said he had no right to ask me. I didn't give one. They then arrested me because I was in charge of my car, they took me into a police station and they asked me to give a breath sample. I told them I hadn't been driving and refused. They put me in a cell, kept me overnight and in the morning they charged me with failing to give a specimen of breath.
I went to court a couple of weeks later and I pleaded not guilty because I wasn't driving. The trial was last week, but even though I told them that I wasn't driving they wouldn't listen. They were only interested in why I had failed to give a specimen, they told me I had no right to refuse and I was found guilty, and they told me they had to disqualify me for 12 months.
Is this right, and is there anything I can do?
From what you have said, it seems that on one level, the court were correct in that you should not have refused to give a sample. Police officers have the right to ask any person to give a specimen if they have reasonable cause to believe that a person has committed an offence of driving a vehicle or being in charge of a vehicle when they are drunk. If the officers in passing have seen you next to your car with the keys in your hand, they may have suspected that you were 'in charge' of it, and it is possible they could have formed a reasonable suspicion.
If you are asked to give a specimen, it is only a defence if you have a reasonable excuse for not giving one, which would only succeed if you could show the court that you are either physically or mentally unable to give a breath specimen. It is not a defence to refuse because you were not driving. Therefore I think the court were right to convict you.
However, you should not have been disqualified. Courts often make the mistake that it is a mandatory 12 month disqualification when somebody has failed to give a specimen. However, it is not. Courts should draw a distinction between allegations of failing to provide a specimen of breath during the course of an investigation into whether somebody was driving, and when somebody was only in charge of their vehicle. Because the police only suspected you of being in charge of the vehicle, you should not have been a risk of a 12 month ban, but instead just 10 penalty points.
Furthermore, even though you were at risk of 10 points, you would have had a fantastic special reasons argument on the basis that you did not drive your vehicle and had no intention of driving it. If we can persuade the court that you did not drive and were not going to drive, then we would have a great chance of avoiding a ban and points altogether.
You have good prospects if you challenge this matter. If you contact us, we will make an application to reopen the proceedings on the basis the court applied the wrong sentencing powers, and we will the sentence varied.
Q: I have just been stopped by a police officer and given a fixed penalty for driving without insurance. I thought the car was insured, I pay my insurance premium monthly and it seems that last month for some reason the direct debit did not go through, which meant my insurance was cancelled. I had no idea it had been cancelled until the officer stopped me. The fixed penalty is offering me 6 points and a £200 fine, I want to know if you think I should accept it?
Driving without insurance is what is called a strict liability offence, meaning that if you have got insurance you are not guilty of the offence, if you have not got insurance you are guilty. However, you may have an opportunity to present what is called a special reasons argument to the court. This means that even though you are guilty of not having insurance, if you could show the court that you had a genuine belief that you were insured and also show that this belief was reasonable, you may have the chance to avoid penalty points altogether.
The way to proceed would be to reject the fixed penalty and instead request a court hearing, and then at court to present the special reasons argument. However, before I advise you on the prospect of success, we would need to discuss in detail why the policy was cancelled, and whether it was reasonable for you to think you were insured. If the direct debit failed through no fault of your own and your insurance company did not tell you, then I would suggest it was perfectly reasonable for you to have thought you were still insured. However, if the direct debit failed because you had insufficient funds in your account and your insurance company made numerous attempts to contact you and you simply ignored them, then the court may find that it was not reasonable.
However, either way if you contact us now we may be able to liaise with the police officer in the case, and try to persuade them to take no further action.
Patterson Law offer free initial advice in relation to the circumstances of your case and we will give you an indication as to whether or not you would be able to defend the allegation. Please complete the form today for your FREE initial motoring law advice within 24 hours!