Road Traffic Lawyers Questions and Answers
Every month we answer your questions in Scotland’s best-selling newspaper, the Daily Record.
Here are a selection of your questions from 2015:
Q. I was charged with speeding back in May of this year. I am slightly surprised that I have not heard anything further as I would have expected to have heard something by now from the authorities. Is there a time limit for this type of offence or do I have to wait indefinitely?
Nicolas M, Glasgow
A. Dear Nicolas,
There is indeed a six month time limit for the prosecution ofspeeding offences. As we are now in December, it would appear that your case is time barred. It may be worthwhile checking the position with the Procurator Fiscal’s Office in Glasgow just to confirm the matter is at an end. There is a remote possibility the prosecution could still be live if the Crown obtained an initiating warrant within the six month time bar, so a quick telephone call should give you peace of mind.
Q. I was recently issued with a fixed penalty for careless driving. The Police claimed that I was speeding although they didn’t appear very sure about the precise speeds involved. I was warned by the Police that if I didn’t accept the ticket then I may face proceedings for dangerous driving. I don’t know what to do as I feel a little cornered into simply paying up.
Richard W, Livingston
A. Unfortunately we hear this scenario all too often. The fixed penalty is optional and you are under no obligation to take the Police up on their kind offer. If the Police officers considered, at the time, the offence merited a three point endorsement then it is extremely unlikely the Court will accept any contention that your driving falls into the more serious category of dangerous driving. It is worth pointing out that the prosecution have all the running to do and have to prove the case against you beyond reasonable doubt. You may wish to go to Court with this one.
Q. I think I may have set off a GATSO camera as it flashed as I drove towards it. I thought these cameras only worked in one direction?
A. No need to panic, you are absolutely correct. As you were driving towards the camera, you probably have just been caught by the radar as it spreads out beyond the lane it is designed to monitor.
David G, Glasgow
Q. I’ve heard that the drink driving limit is to be reduced. Is this true and, if so, what is the new limit? I do not drink and drive but am worried about the morning after.
Alastair K, Kilmarnock – via telephone
A. Dear Alastair,
We understand theprescribed limit will be reduced on 5 December 2014 to 22ug/100ml (the present limit is 35ug/100ml). Police Scotland have issued a statement indicating that 10,000 Police Officers will tasked with enforcing the reduced limit and we anticipate a high number of drivers are going to be caught out. We can therefore only advise extreme caution before driving if you have recently consumed any alcohol.
Q. I have been charged by the police with a mobile phone offence, but all I was doing was moving it from my trouser pocket to the passenger seat. Have I committed a crime?
Carly H, Glasgow – via telephone
A. Generally, a prosecution of this type is one of “using” a mobile phone (or other hand-held device) whilst driving. Use involves the performing of an interactive communicative function, such as making or receiving a telephone call or accessing the internet. However, it is also open for you to be prosecuted for driving in a manner that does not give you proper control or full view of the road or traffic ahead. You should speak with a solicitor who will be able to guide you as to the most appropriate way forward.
Q. I was caught speeding doing (43 in a 30). My uncle and my mates told me that speeding is impossible to get out of and I should plead guilty. The case is in Court next week. What do you advise?
Mohammad M, Shawlands – via email
A. The prosecution require to establish a number of matters in order to prove a speeding case beyond reasonable doubt. Speeding cases are complicated and technical in nature and we would always recommend proper legal representation if you are considering a plea of not guilty. A conviction is in no way a fait accompli and your uncle’s advice is very wide of the mark.
Q. Will I be able to use my new Apple watch to make and receive calls when driving?
David A, Glasgow
A. We have had a lot of calls about this. The legislation presently refers to “hand-held” devices and, by definition, as a watch is wrist worn it would not appear to be caught by the present legislation. We do not therefore consider the Apple watch or other similar devices will attract prosecution under the mobile phone legislation. The Crown will have to go back to pre-2003 practices and rely upon the careless driving provisions to prosecute smartwatch users.
Q. My brother assured me that he had insurance that covered him to drive any car. I let him drive my car and he had an accident. The Police say he wasn’t insured to drive the car. I’ve been charged with causing and permitting him to drive without insurance. Do I have a defence?
Mazmat Q, Riddrie
A. Dear Mazmat, it sounds as though you may have a stateable defence in law. You gave your brother permission to drive your vehicle which was conditional upon his being insured to drive your vehicle and accordingly, you should be acquitted of this charge.
Q. I intend to plead guilty in court to an offence that will take me to 12 penalty points. My boss has told me that I will lose my job if I’m banned for more than 4 weeks. What can I do?
Robert S, Wishaw
A. Under normal circumstances, 12 points leads to a 6 month disqualification under the “totting-up” provisions. It is possible that you could argue exceptional hardship, however the courts apply a high test for this and it is unlikely that loss of your employment in itself would be held as exceptional. It may be advisable, therefore, to consider asking to be disqualified on a discretionary basis for a short period, i.e. a ban of less than 56 days. Be prepared to exhibit documentation in support of this, such as a detailed letter from your boss explaining the situation, in your attempts to persuade the judge that such a disposal is merited.
Q. I had an argument with my wife at Christmas and went out to sleep in my car. The Police found me and have charged me with being drunk in charge. I wasn’t going to be driving anywhere. What are the penalties and can I get out of it?
Marlon, Ecclefechan – via telephone
A. Dear Marlon, you may wish to avail yourself of the statutory defence available for this type of charge. If the Court is persuaded that there was no likelihood of driving until such time as the level of alcohol in your system was below the legal limit, then you will be found not guilty.
Anexpert toxicology report must be produced in order for this defence to succeed.
We have successfully defended a number of clients in similar situations.
Q. My husband was stopped driving his lorry and another driver’s card was in the tachograph. Will he get penalty points for this?
Janet, Glencarse – via website
A. Dear Janet,
Tachograph offences do not carry penalty points but the Courts tend to impose substantial financial penalties.
Q. I was caught speeding doing (70 in a 30). I was warned by the police at the time that I would be reported to the Procurator Fiscal but that was more than 6 months ago. I’ve read that I should have received a citation within 6 months or the case is finished. Is that true?
Michael, Dumfries – via email
A. Dear Michael, if the Crown were to proceed with a charge of speeding they would indeed have had to serve a Complaint upon you within 6 months. At that speed however, the charge proffered by the Crown is likely to be one of dangerous driving.
Dangerous driving does not have a time limit for service of papers, although you should expect to receive a citation within 12 months or there may well be an argument that there has been undue delay.
Q. I was found guilty of speeding and the Court not only disqualified me but also ordered me to resit my test. Can they do that?
The Court has the power to disqualify you until you pass your driving test if you are found guilty of any offence involving obligatory endorsement. Speeding clearly falls into this category. In determining whether to make such an order, the Court shall have regard to the safety of road users.
Q. I have my driving test booked although I was recently caught by the Police driving whilst unsupervised and therefore without a valid licence or insurance. Is there any point in sitting the test now due to the rules on new drivers?
Karen L, Paisley
You will be pleased to hear that as the incident predates the grant of your first UK licence, assuming you pass the test that is, the case does not count for the purposes of the new driver regulations. I would however consider legal representation as the offence of driving without insurance can lead to an outright disqualification from driving.
Q. There seems to have been very little publicity about the forthcoming abolition of the paper part of the driving licence. Are you able to shed any light?
Elise B, Motherwell
Indeed, Elise, the counterpart driving licence’s days are numbered. As of 8 June, they will no longer be valid and can be destroyed (although, of course, you must still retain the photocard). Information relating to endorsements and driving entitlements will instead be stored electronically, with access to it being through the DVLA either online, by post or phone. It seems an unnecessary extra hassle when simply looking at your own counterpart sufficed until now, but that’s ‘progress’ for you!
Q. Can you still legally drive with 14 penalty points?
Chris, Ardgay – via telephone
A. Dear Chris, under the ‘totting-up’ provisions, the accumulation of 12 or more penalty points within a three year period ordinarily equates to a disqualification of at least six months. However, in certain situations the Court may determine that disqualification would lead to exceptional hardship. An Exceptional Hardship Proof is similar in format to a trial. The determination of the case is on a balance of probabilities, as opposed to the higher legal test in criminal matters of ‘beyond reasonable doubt’. It is helpful in such proofs to present documentary evidence in support of your position, however, this is not a legal requirement. The focus of the Court tends to be on the effect that disqualification would have upon others (and to a lesser degree, the licence holder).
Q. I’ve got a citation to attend court and was wondering if I will get my expenses back if I am found not guilty?
Ken, Dundee – via website
A. Dear Ken,
In Scotland, unlike England and Wales, costs cannot be recovered in criminal matters. We are hopeful that in the future legal expenses will be recoverable for criminal matters. It is worth checking your motor insurance policy as they very often providelegal expenses cover. You are entitled to choose your own solicitor and are under no obligation to accept their suggestion.
Q. I sent a letter pleading guilty, along with my licence and have just received a letter asking me to attend court. It was a charge of speeding. I have 6 points on my licence already. Do I have to go?
Jeremy, Newton Stewart – via letter
A. Dear Jeremy, the offence that you have pled guilty to carries between 3 and 6 penalty points or, if the Court deems the offence sufficiently serious, discretionary disqualification. It appears that they are intending to impose a sentence that may bring a ban into play, and if you wish to take steps to avoid this it is vital that you obtain sound legal advice as a matter of urgency.
Q. I was offered the Driver Awareness Course as an alternative to prosecution for a careless driving allegation. Due to a mix up with my name, the company could not book me for the course. I now have Court papers and don’t know what to do.
You will need to rely upon some cooperation from the Crown here. I would suggest that you undertake the course and attend Court with the certificate of completion. This should be presented to the Crown when the case calls and hopefully the depute in Court is magnanimous enough to proceed no further.
Q. At what stage do you get the jail for drink-driving? Is it automatic above a certain level?
The Court will take into account a range of factors when determining the appropriate sentence. Each case is determined on its own merits. It is logical that the higher the reading, the more likely a period of imprisonment becomes. The Court will also have cognisance of previous criminal conduct, driving history, work history, social factors and risk of re-offending.
Q. I’ve not had the best of luck recently. My car has been detected speeding on three occasions, and now I have three letters asking me to go to court. Two of the cases are in Glasgow, the other in Stirling. Can I get all three brought together and dealt with in the same place?
In short, no. A case needs to be heard in the jurisdiction where the alleged offence took place. So whilst it should be relatively straightforward in bringing the two Glasgow matters together, the third will have to remain separate. It should also be noted that if all three cases are at a high enough speed to attract court citations, then your licence may be in danger so it would be best to seek legal advice prior to the hearings.
Q. I have received one of those notices asking me to say who was driving my car when it was caught speeding on the motorway in Lanark last week. I know it was me because I was dashing back to Glasgow at the time. Do I need to reply to this? I read on an internet forum that there may be an option to send the form back unsigned.
J. Bowman, Dumfries
I am afraid you have a legal obligation to complete, sign and return the document within the allotted timeframe. Be careful what you read online as the unsigned route will inevitably lead to a prosecution for failing to comply with the original notice.
Q. My uncle let me drive his car. I am fully comprehensive but I am under 25. I was stopped by the police near the border and have a Court date at Dumfries. I am a new driver and need my licence for work. Is there anything I can do?
K. Thorne, Middlesbrough
If your uncle’s policy of insurance does not extend to drivers under the age of 25 you are guilty of the offence. However, the Court may find that there exists special reasons for not endorsing your licence. This would allow you to retain your licence with no penalty points attaching thereto.
Q. Would you be able to clarify something for me? I’ve managed to get myself a speeding ticket from a GATSO camera on the A1 east of Edinburgh. I was driving my new Iveco van and they say I was going 60mph when the limit was 50, but this is a single carriageway A-road. Surely the limit should be 60!?
Daz S, Stockport
Whilst unfortunate, it is so often the case that drivers fail to appreciate that the vehicle they are in is subject to a lower national speed limit. As your van is classed as a goods vehicle with a maximum laden weight of 7.5 tonnes, it is limited to 50mph on the particular type of road. It is only “car-derived” vans that can legally travel at 60. That being said, the excess of speed is small and you can expect to be offered a Conditional Offer of Fixed Penalty of 3 penalty points and £100 fine.
Q. I have received a Court citation accusing me of speeding at 101mph on the A74(M) in Dumfries. I have heard that anything over 100mph will attract a period of disqualification. Is this correct and do I need a lawyer if I am pleading guilty?
Colin W, Newcastle
You may wish to consider legal representation. It is incorrect to assume that speeds in excess of 100mph will automatically attract a period of disqualification although you should be in a position to properly address the Court in mitigation. This can be done through a solicitor or by attending to matters yourself. I would be confident that Dumfries Justice of the Peace Court will not impose a period of disqualification at this particular speed.
Q. I am a doctor and I was responding to an emergency call out to an elderly patient. I was clocked by a speed camera doing 86mph in a 60mph limit. I have been asked to attend Lanark Justice of the Peace Court next month. I want to plead guilty. Can I avoid penalty points because I was acting in an emergency?
In brief, there is a way to avoid penalty points for this offence. The Road Traffic Offenders Act 1988 makes provision, in certain circumstances, for the Court to refrain from disqualifying in respect of an offence carrying obligatory disqualification or to refrain from endorsing a licence in respect of an endorseable offence. Special reasons are best thought of as mitigating or extenuating circumstances which fall short of an absolute defence in law. Special reasons ought to relate to the offence itself rather than the personal circumstances of an accused. A doctor responding to an emergency would certainly meet the legal test.
Q. I have spoken to two different solicitors about my forthcoming careless driving case at Edinburgh. One has told me to plead guilty and the other has told me to plead not guilty! What should I do?
Dr A, Livingston
Ultimately, it is for you to consider what has been discussed and thereafter whose advice you should accept. It may also be prudent to do your research on the respective firms to ascertain their reputation and track record in similar cases. Credible testimonials from previous clients would also be a good indicator of whom you should place your trust in.
Please keep your questions coming in 2016!
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