Month: February 2016

Special reasons: a case study

Posted on by ndiable

The following is a case study based upon news reports, the subject of this story was NOT represented by Oxford Drink Driving Solicitor

According to news reports this week, Alan Otterburn appeared at court in Norwich accused of drink driving.  He told the court he had received an urgent call to get to the hospital quickly as his mother had just hours to live.  He rushed to see her, but was stopped by the police for speeding and they quickly realised he had been drinking.

Man accused of drink driving blows into a hand held breathalyser

Special reasons can save a driving licence if you blow over the drink driving limit

He was arrested and at the police station was found to have 82 microgrammes of alcohol in 100 millilitres of breath, which is well over double the drink driving limit of 35µg per 100ml.

At court he pleaded guilty and asked the court to take the circumstances into account as a special reason.  If the court agreed this was a special reason it would mean that the judge would no longer be required to disqualify Mr Otterburn from driving.

So, what is a special reason?  Lord Goddard was asked to decide this question in 1946 and, presumably having better things to do with his time, decided to adopt a definition from Northern Ireland, which is: “… a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence.”

We can see that Mr Otterburn’s explanation for drink driving is a mitigating or extenuating circumstance.  It is not a defence in law to drink driving and it is directly connected with the commission of the offence – had he not received the call he would not have been driving.  So, on the face of it Mr Otterburn has a special reason to avoid disqualification.  However, District Judge Peter Veits ruled against Mr Otterburn finding that there was no special reason and thus that he was obliged to disqualify him from driving.

Given that Mr Otterburn’s explanation fulfils the requirements for a special reason why then did the district judge find against him?  The answer to that lies in the evidence given by Mr Otterburn and the case of R v George John Baines, which was decided in 1970.

In Baines case, he argued that he should not be disqualified as he had only driven to help his wife’s elderly mother who had run out of petrol after midnight and a long way from home.  Mr Baines came unstuck because he failed to consider whether there might be another way he could help his mother-in-law that did not involve him drink driving.  The court will only grant a special reason where driving is the only option, Mr Baines lost his case.

Rows of taxis waiting at a taxi rank

If you claim special reasons the court will want to know why you could not use some other form of transport

46 years after Mr Baines lost his case through his failure to think through his options, Mr Otterburn gave evidence telling District Judge Veits that, “I didn’t think about getting a taxi.”  The news report goes on to say that he did not think he could use public transport nor get a lift from a neighbour, the suggestion being that no effort was made to discover whether he could have travelled to the hospital by another means.

The moment the court heard that there had been no real exploration of other options Mr Otterburn’s case was doomed to fail in the very same way Mr Baines case had done nearly half a century before.

I am sure that Mr Otterburn’s solicitor advised him about the likelihood of his winning the special reasons hearing based on his instructions, but this case shows why it is so vital that solicitors have a strong grasp of the law when they appear in drink driving cases.

Recent case: reducing the disqualification

Posted on by ndiable

In this short post, we look at how an in-depth knowledge of motoring law can reduce your driving disqualification.

Mr S was seen by police to jump a red traffic light while travelling at speed in the early hours of the morning, he was stopped and found to be over the limit.  At the police station, his breath sample showed that he had 85 microgrammes of alcohol per 100ml of breath – the legal limit in England and Wales is 35 – and was charged with drink driving.

The sentencing guidelines indicate a starting point for the disqualification of around 22 months for such a high reading, especially where the offence is aggravated by poor driving, such as jumping a red light and speeding.

At court, Mr S agreed that he would plead guilty and instructed Nick Diable to mitigate on his behalf and reduce the length of the disqualification, if possible.

Mr S works in an office but drives out to meet clients at least three times a week.  His employer had agreed to keep him on despite the inevitable loss of his driving licence; however, as his ability to visit clients would be reduced this was likely to impact on his ability to sell to clients and thus reduce his income as he works on commission.

Having taken instructions, it was clear that this was a situation to deploy the case of R v Geale, which was a case decided by the Court of Appeal in 2012.  Geale involved a coach driver whose lapse in concentration resulted in the death of a 10 year old boy.  The court ruled that “… as a professional driver a disqualification will impose a particular financial hardship upon [Geale]…”.  They decided then to reduce the length of the disqualification.

Although Mr S was not a professional driver, the disqualification would nonetheless impose a “particular financial hardship” upon.  Nick therefore invited the court to consider this case and set out how the disqualification would impact upon him.

After hearing the mitigation, the court agreed to reduce the length of the disqualification from a 22 month starting point to 16 months.  They also allowed Mr S to take the drink driving rehabilitation course, which further reduced the length of his ban to 12 months.  In addition, the magistrates reduced the fine from £510 to £340.

If you find yourself in need of expert legal advice on a drink driving matter then do not hesitate to contact the Oxford Drink Driving Solicitor on 01869 866 490.

Do I need a solicitor if I plead guilty?

Posted on by ndiable

What can a solicitor do for me?

I am a solicitor based in Oxfordshire specialising in drink driving cases.  I often see people in court who have attended without a solicitor to represent them; often I see them getting much longer driving bans and fines than they would if I had been representing them.  Having spoken to a lot of people about this, I’ve come to the conclusion that many people don’t understand what a solicitor can do for them when they plead guilty.

I was told by a fellow solicitor that he often attends court in drink driving cases but rarely has much impact on the outcome of the case.  I was surprised to hear that because there is a lot a solicitor can, and should, be able to do for somebody who is pleading guilty.

Before court

For me, the case begins long before we get near the courtroom. I always request the prosecution evidence in advance so that I can sit down with my client and advise them about it.  I can identify aggravating factors that will increase the sentence and plan with the client how we will deal with those.  I also look for any mitigating factors that will help reduce your sentence.  I can also talk you through the court process and what to expect – something I find worries a lot of people.

Ensuring that every client has the best advice on their prospects of winning a trial is a very important part of the defence solicitor’s job.  Our justice system is adversarial, meaning that the prosecution must prove the case against the defendant – if they cannot then the defendant is not guilty.  It does happen that a client will intend to plead guilty but upon seeing the evidence it’s clear that the prosecution cannot prove their case and they are eventually acquitted.

A first time offender who is normally a responsible person can help herself a lot by obtaining character references.  These help convince the court that this incident is out of the ordinary and have in the past made the difference between a client going home or going to prison.

At court

It is sometimes claimed that the court’s legal advisor or the duty solicitor will help unrepresented defendants – don’t count on it.  A duty solicitor is there to help defendants facing a prison sentence and will not always get involved in drink driving cases.  So far as the legal advisor is concerned, let me put it this way: I witnessed a defendant in court today plead guilty then put forward mitigation that was clearly a defence.  The legal adviser simply ignored this contradiction and allowed the bench to sentence him (and seize his car into the bargain).  Not really the sort of help you want and despite the name, legal advisors are not always legally qualified to the standard of a solicitor.

In court, the prosecution will set out their case to the magistrates after which I will set about mitigating on your behalf.  Mitigation has two very broad headings, first is mitigation relating to the offence – such as why your actions are not as serious as the prosecution say they are.  The second is personal mitigation, one of the aims of which is to engender some sympathy for you from the court – so it may focus on our family, your work, both or something entirely different.  I am a great believer in knowing your audience so I do my best to watch the magistrates before my case is called on to get a feel for what sort of arguments are likely to work and, which are doomed to failure.

Mitigation is also the time for legal arguments.  In England, you will usually get a reduced sentence for pleading guilty but most non-specialist solicitors and magistrates mistakenly think this does not apply to driving disqualifications.  It does and there is a wealth of law cases from home and Europe to prove this.  This point is one of the most commonly deployed legal arguments.

One of the most important jobs your solicitor can do is to keep the judge from exceeding his or her authority.  Last year, I dealt with two cases within a week of one another where the District Judge in one case and the magistrates in the other imposed a sentence wholly incompatible with the sentencing guidelines.  Obviously, I was able to spot the errors quickly, address the bench and cite the appropriate law so as to convince the court that it was exceeding its powers.

After the hearing it is very important that you understand exactly what has happened in the court room because it can have a big impact on you in future.  So, after the hearing I will always discuss the case with my clients after the hearing to make sure they understood what was said by the court and what that means for them.

What impact can your solicitor have on the outcome?

Instructing the right solicitor who understands the very specialised law surrounding drink driving offences can have a big impact on the outcome of your case.

We’ll briefly look at a couple of recent cases to see what impact a solicitor can have on your case.  In the first, the defendant had no previous convictions, was a family man and a business man who had been out with friends and thought he was being sensible by only drinking two glasses of wine when his friends consumed far more.  It was clear from speaking to him that he did not think anything to do with his personal life was relevant and so would not have told the court about it had he been unrepresented.  In fact, I took the court through the circumstances of the offence, explained to them about his family life and his business.  I was able to build a picture of an honest and responsible man who had made a mistake and who was genuinely remorseful for his actions.  The court indicated that the correct starting point was a fine totalling 150% of his weekly income and a 16-month driving ban.  After hearing the mitigation they reduce the fine to 50% of weekly income and a 12-month ban.  They further reduced the ban to 9-months upon completion of the drink driving rehabilitation course.

In the second case, the defendant had been caught drink driving after police saw him speeding and jumping a read light.  He was more than twice over the drink driving limit and facing a disqualification of 22 months.  In mitigation, I cited case law that says the court should take into account the impact on the defendant’s career.  The court agreed and reduced the sentence to 16 months – after the drink driving rehabilitation course that is a 12 month disqualification.

So, in conclusion: what can a solicitor do for somebody pleading guilty?

  1. Reduce the sentence you receive at the end of the case;
  2. Help settle your nerves about the hearing;
  3. Ensure your case is fully prepared for every eventuality;
  4. Give you expert advice on the evidence against you;
    1. Whether there is a defence;
    2. Whether the evidence can help mitigate for you
  5. Give you expert advice on the law to get you the best result possible;
  6. Provide convincing and persuasive advocacy on your behalf; and
  7. Rectify any mistakes by the court before they cause you a problem.

You can get expert legal advice and quality advocacy for your case from Oxford Drink Driving Solicitor (01869 866 490).