Introduction
The minimum period of disqualification for drink driving is 12 months. Extended disqualification for drink driving can occur in a number of ways. Some of these are discretionary. Others are mandatory. In this article we shall discuss the ways in which extended disqualification can be imposed and the best ways to mitigate against these.
Reference shall be made to the following legislation and case law:
- Road Traffic (Offenders) Act 1988, section 34
- Road Traffic (Offenders) Act 1988, section 35(C)
- William Buchan v Procurator Fiscal Perth [2019] SAC Crim 1
- Ryan Docherty v Procurator Fiscal Aberdeen [2023] SAC (Crim) 11
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Extended Disqualification for Drink Driving – Repeat Offending
The first way in which an extended disqualification for drink driving can be imposed is repeat offending. The main examples are:
- The court will take account of any previous convictions, particularly driving convictions and/or any points on the accused’s driving licence.
- If the accused has committed another drink driving offence within the previous 10 years of the commission of the latest offence, then the minimum disqualification is increased to 3 years.
Relevant Law:
Extended Disqualification for Drink Driving – Custodial Sentences
An extended disqualification for drink driving is imposed if the accused is sent to prison for the offence. Section 35C of the Road Traffic (Offenders) Act 1988 provides that an “appropriate extension period” must be added to the period of disqualification. This extension period shall be half the custody part of the sentence of imprisonment. Because the maximum prison sentence for drink-driving is 6 months, the maximum possible extension period is 3 months.
Section 35C was considered in the case of William Buchan v Procurator Fiscal Perth [2019] SAC (Crim) 1. The court opined that:
The reason for this is clear. Time spent in prison should not erode the impact of disqualification. The ban should impact whilst the offender is at liberty, not when disabled from driving by virtue of being a serving prisoner….. Having determined the period of disqualification, the court should then ….. add the appropriate extension period. That is not a discretionary matter
It is also clear that no discount is applied to the extension period.
Extended Disqualification for Drink Driving – Existing Disqualification
If the effect of a prison sentence is clear, the effect of a pre-existing disqualification is less so. This occurs where the person is already serving a disqualification when they come to be sentenced for the current offence.
By virtue of section 37 of the Road Traffic (Offenders) Act 1988, a period of disqualification begins as soon as it is imposed. No “deferral period”, therefore, is allowed. This situation was considered in the case of Ryan Docherty v Procurator Fiscal Aberdeen [2023] SAC Crim 11. In that case, the following applied:
- the accused was convicted of a relatively low-level drug-driving offence;
- but had approximately 10 months remaining of a disqualification for dangerous driving
The sheriff imposed a disqualification of 12 months (the minimum). However the Sheriff then extended that period by 10 months to 22 months to take into account the pre-existing disqualification.
In allowing the accused’s appeal, the Sheriff Appeal Court made clear that this situation was very different from a case of imprisonment. The sheriff was “bound and entitled” to consider the pre-existing disqualification but:
Where an accused is in custody, disqualification has no effect until he is liberated. By contrast, where an accused is already subject to a period of disqualification the intentions behind the imposition of disqualification – public protection, punishment and deterrence – must be presumed to be taking effect and need not be duplicated by extending for the equivalent of the whole of the remaining period of the original driving ban
In our opinion the court did not consider a second instance of “double-counting”. The sheriff had already considered the pre-existing offence in reaching the starting point of 18 months disqualification (which was then discounted to 12 months). It is, in our opinion, unfair to take into account both the previous conviction (in arriving at a starting point) and the punishment (in arriving at an extended period of disqualification).
Mitigation
The effects of an extended disqualification fro drink driving can be mitigated in several ways, including:
- Early plea of Guilty: this can have the effect of reducing the “starting point” of the disqualification
- Drink Drive Rehabilitation Scheme: this can reduce a period of disqualification by 25%. This can competently reduce the minimum disqualification below 12 months (or below 3 years if applicable
- Seeking assistance: if the accused person shows a voluntary willingness to address alcohol issues, (for example with Alcoholics Anonymous), this can be a relevant factor in avoiding a person sentence and/or achieving a lower period of disqualification
Why choose Roadtrafficlaw.com to defend you?
In all cases, whether you intend to plead Guilty or Not Guilty, it is absolutely essential that your solicitor is capable and experienced. Since our inception in 2001, we have focused on how to assist people accused of drink driving. Our founding principles of specialisation, expertise, communication and client dedication remain central to the firm. We will be on hand to advise you throughout the whole process, from measures you can take before your first appearance to assisting you with each step of the process thereafter. Our specialisation allows us to focus on your case more than is possible for other firms. Detailed knowledge of the relevant case law and sentencing guidelines, which we hope to have demonstrated in this article, is also essential.