McSporrans have a highly experienced team of criminal solicitors & lawyers who regularly defend traffic law prosecutions in Edinburgh, Scotland. It is important to employ the services of a solicitor familiar with the many rules and regulations involved in road traffic law, particularly given that the consequences of a conviction can have a significant effect both on your life and those around you.
The following are some of the most common types of road traffic related charge:-
- Speeding
- Drink Driving
- Getting Your Licence Back
- Failure to Provide A Specimen
- Careless Driving
- Driving Whilst Using a Mobile Phone
- Dangerous Driving
Road Traffic Act in Scotland
Today the jurisdictional differences between Scotland and England & Wales have little impact on the application of road traffic law across the United Kingdom and driving offences will be treated in much the same way in the Scottish courts as in the English or Welsh courts. Occasionally, however, there are differences in interpretation and there are also some laws which apply in England, but not Scotland.
• Dangerous driving
Dangerous driving charges in Edinburgh often result from collisions or instances of ‘road rage’. They include, for instance, cases where the motorist had been taking alcohol or drugs prior to driving or where the motorist was using a mobile phone at the time of an accident. There are subtle, but important, differences between the offences of dangerous driving and careless driving. A conviction for dangerous driving will usually result in a more serious sentence.
The criminal road traffic offences of “causing death by dangerous driving” and “dangerous driving” itself are contained within Sections 1 and 2 of the Road Traffic Act 1988.
Examples of conduct which may result in charges of dangerous driving and criminal conviction include excessive speeding where the speed of the vehicle is well above the speed limit. Another example is where the vehicle is in a sensitive area, such as near a school or hospital. Other forms of conduct include reading a document or street map whilst driving or using a mobile phone, whether making a phone call, texting or browsing the internet while driving.
It is for the Procurator Fiscal to bring any charges of dangerous driving. Such charges will most likely be brought where it is likely that the Section 2A criteria of the Road Traffic Act are met. These are that the driving “fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous”. Successful prosecution is, therefore, dependant on the facts and circumstances of the case. Since no two cases are identical, an expert road traffic lawyer’s opinion and representation in the courts of Edinburgh could mean the difference between conviction and a lesser criminal sentence, such as careless or inconsiderate driving, or even being free of criminal liability.
Attendance at police interview is a likely consequence of a charge of dangerous driving and road traffic solicitors can represent or advise on any aspect of detention or police interview. It is important to note that following the recent criminal law case of Cadder v HMA, everyone in Scotland has the right of access to a solicitor during police interview, for instance at an Edinburgh police station.
In terms of sentencing for a conviction of dangerous driving, a one year’s qualification is the minimum sentence imposed by the court, but may also include a fine or even prison sentence of up to two years. Exceptional circumstances may warrant only a deduction of points to the driving licence. The penalty for death by dangerous driving is more severe and can include a custodial sentence of up to fourteen years in prison with a lengthier disqualification from driving. The type of sentence given by the sheriff in the Edinburgh courts will depend on the circumstances of the case and the evidence produced by the Crown, but may also depend on whether a guilty or not guilty plea is tendered.
• Drink driving
Given the potential for a large fine, penalties on insurance fees, loss of driver’s licence, disqualification from driving, forfeit of your car, or even a prison sentence, which can lead to loss of job or livelihood if a drink driving conviction is upheld in the courts in Edinburgh, it is important to consider all aspects of a charge of driving whilst under the influence of alcohol or drugs.
Under Section 5 of the Road Traffic Act 1988, it is a criminal offence for any person to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place having consumed alcohol in such quantity that the proportion of alcohol in their breath, blood, or urine, exceeds the prescribed limit. Similarly, under Section 4 of the Road Traffic Act, it is also an offence to drive, attempt to drive, or be in charge of a mechanically propelled vehicle on a road or other public place whilst unfit through drugs.
Issues of evidence, such as accuracy and availability of police equipment readings are commonly a source of contention with alleged road traffic crimes. Solicitors can assist with investigation, including investigation of the alleged crime scene, and advise on the relevant circumstances of the cases of alleged drink drivers. Therefore, pleading guilty should not be the first consideration. For instance, a breath test may look accurate on the face of it, but the equipment used may be faulty or the timings of the results may be inaccurate. It may therefore be important to challenge the correctness of such equipment. If a driver were to plead guilty to a drink driving offence where faulty police equipment was used that would be a miscarriage of justice, which is something road traffic solicitors try to prevent. Indeed, a plea of guilty may still lead to drastic consequences even though these may be slightly less severe than if a not guilty plea is tendered and conviction is thereafter upheld.
If you are an alleged repeat drink driver, forfeit of your vehicle may be an additional likely consequence of conviction as well as loss of licence or imprisonment.
Even if a conviction of drink driving is maintained, specialist road traffic defence solicitors can present a plea in mitigation to the courts in Edinburgh, urging them to take into account mitigating factors, which will depend on both personal circumstances and the facts of the case.
• Speeding
Given an increasing number of speed cameras and traffic patrols in Edinburgh, an increasing number of people living and working in the city are being caught speeding.
The fixed penalty is a maximum fine of £60 with three to six penalty points’ endorsement on the driver’s licence. However, if the case is referred to a court such as Edinburgh Sheriff Court, the maximum fine possible is £1,000 and may rise to £2,500 if the speeding occurred on a motorway.
Depending on the severity of the allegation and the circumstances, the fine or penalty may increase. However, even if a prosecution is successful, pleas in mitigation by an Edinburgh road traffic lawyer, for instance by bringing to light the accused driver’s past records, may reduce the sentence. This may be particularly significant if the penalty points would result in a driving ban.
• Failure to provide a specimen
Power to require a breath specimen in Edinburgh
Under Section 6 of the Traffic Act 1988, a police constable may require a person who is or has been driving, attempting to drive, or in charge of a motor vehicle on a road or other public place, to co-operate in undertaking a preliminary test, including supplying a breath test. To demand a breath test, the police officer must have reasonable cause to suspect that: -
1) The person has alcohol in their body;
2) The person has committed a moving traffic offence; or
3) The person was involved in a road traffic accident
Power to require specimen for analysis in Edinburgh
Further, under Section 7 of the Road Traffic Act 1988, a police officer may require two breath specimens for analysis or specimen of blood or urine for laboratory analysis if certain criteria are met. It is a criminal offence to fail to supply a specimen of breath, blood or urine unless a reasonable excuse is provided.
However, notably, under Section 7(7), the police officer requesting the sample must warn the driver that a failure to provide the sample may render him liable to prosecution.
If two breath specimens are taken, the specimen with the lower proportion of alcohol in the breath shall be used and the other specimen is to be disregarded.
It is important that the police constable gets the procedure correct. Otherwise, the specimen provided by the suspected drink driver may be inadmissible as evidence in a prosecution. Further, the suspected drink driver may have a reasonable excuse for having not provided the specimen, for instance if the breath test machine is faulty and, thus, the police officer concerned has not been able to use it.
Contacting a specialist road traffic lawyer early is important given the potentially long disqualification from driving as a likely consequence of failing to provide a specimen without reasonable excuse.
• Death by dangerous driving
The penalty for death by dangerous driving is more severe than dangerous driving itself and can include a prison sentence of up to fourteen years with lengthier disqualification and a potentially unlimited fine. The type of sentence given by the sheriff in the Edinburgh courts will depend on the circumstances of the case and the evidence produced by the Crown, but may also depend on whether a guilty or not guilty plea is tendered.
Attendance at police interview is a likely consequence of a charge of death by dangerous driving and road traffic lawyers in Edinburgh can represent or advise on any aspect of detention or police interview. It is important to note that following the recent criminal law case of Cadder v HMA, everyone in Scotland has the right of access to a solicitor during police interview.
Since no two cases are identical, an expert road traffic solicitor’s opinion and representation could mean the difference between conviction and a lesser criminal sentence, such as causing death by careless or inconsiderate driving, or even being free of criminal liability.
• Driving whilst disqualified
It is a criminal offence to drive whilst disqualified from driving by the court, as per Section 103 of the Road Traffic Act 1988. Therefore, during the period of disqualification, which may start for instance when twelve penalty points have accumulated on a driver’s licence or through a sheriff court judgment, no vehicle should have been driven by the driver on the roads. If a conviction is upheld for driving while disqualified, the judge in an Edinburgh court may give the driver a prison sentence.
Driving while disqualified is a strict liability crime. This means that the driver cannot plead ignorance or cannot claim that reasonably they shouldn’t have known about having been disqualified.
In order to drive again following disqualification, drivers must apply to the Drivers Vehicle and Licensing Authority (DVLA) to be licensed to drive before the end of the disqualification period and, in some cases, an extended driving test must be passed. If the relevant requirements are not met, a criminal offence may have been committed under Section 87 of the Road Traffic Act 1988.
However, what constitutes “driving” is not always clear-cut. In addition to the usual meaning of driving, if the disqualified person controls or moves a vehicle to a substantial degree, that may be held to be driving for the purpose of the Act. Thus, for example, a person steering a car while being pushed may still be considered to be driving and may be convicted of driving whilst disqualified. Similarly, it may not be clear whether the car was being driven on a road for the purposes of the Road Traffic Act.
• Driving without insurance or a valid licence
As with charges of driving while disqualified, there are criminal sanctions for similar road traffic offences such as driving without a valid driver’s licence, driving without insurance, driving without road tax and driving without an MOT. These separate offences may result in penalty points being removed from a driver’s licence, or a fine. As with driving while disqualified, however, the prosecution may not have a clear-cut case and there may be room for argument depending on the circumstances, which is why it is important to seek expert advice from road traffic solicitor at the outset, for instance, as soon as possible after arrest, detention or after criminal charges have been brought against you.
• Careless driving
A conviction for careless driving, as opposed to dangerous driving, usually carries with it a lesser sentence in the criminal courts in Edinburgh. Given that it is often a matter of interpretation of the police officer at the scene of the alleged road traffic offence, there may be a larger scope for argument.
Careless driving is usually brought following accidental, careless or negligent acts, often involving unintentional vehicle collisions or other accidents. Defined by Section 3 of the Road Traffic Act 1988, careless drivers are “those who drive a motor vehicle on a road in a manner that falls below what would be expected of a competent and careful driver’. They may also be those who “drive without reasonable consideration for other persons using the road or place”.
In order to evaluate the likelihood of conviction, potential defences and other advice, it is important that the road traffic lawyer considers all angles of the incident, including the road conditions, the drivers involved, whether or not there was personal injury or harm caused to anyone, whether or not there is any distinction to be drawn between a charge of careless driving or speeding, or any evidence available to the prosecution.
Penalties for careless driving may include a fine or endorsement of the driver’s licence in the form of between three and nine penalty points at the discretion of the sheriff, for instance in Edinburgh Sheriff Court.
Further similar road traffic offences are also governed by the road traffic laws and legislation under the 1988 Act, such as death by careless driving, which itself includes the Section 2B crime of causing death by careless or inconsiderate driving, the Section 3A crime of causing death by careless driving under the influence of alcohol or drugs, or the Section 3ZB crime of causing death by driving when unlicensed, while disqualified or without insurance. Criminal charges for these road traffic offences can have serious consequences. It is therefore essential that legal advice is sought as soon as possible.
• Driving whilst using a mobile phone
Road traffic solicitors in Edinburgh often have to advise and represent clients in their defence of a charge of driving while using a mobile phone. Given that everyone in Scotland is innocent until proven guilty and because the question of what constitutes “use” is a complex legal area with tricky evidential issues, there is often scope for a solicitor to argue a mobile phone driving case.
For instance, the mobile phone may have been used as a hands-free device through a Bluetooth kit, which is becoming more common with increasing use of smart-phones, such as the BlackBerry, Apple iPhone, or Windows HTC Phone. Further, the vehicle may have been stationary at the time the mobile phone was being used or the call may have been an emergency phone call at the point when the police officer noticed it while the vehicle was moving. The use of the phone may also have included texting, such as sending or receiving texts, video-messaging while driving or even browsing the web.
The standard criminal sanction for mobile phone use while driving in Edinburgh is a £60 fine plus three penalty points on the driver’s licence. Through “totting up”, this may well result in disqualification from driving for some drivers. If you do not accept the fixed charge the fine may increase to as much as £1,000. It is, therefore, important that legal advice is sought at an early opportunity to allow for investigation of the facts and for construction of a professional legal defence.
Contact Expert Road Traffic Solicitors
McSporrans is a firm of Edinburgh solicitors with extensive experience in 'totting up' offences and all relevant elements of road traffic law. We do all we can to ensure that our clients retain their licences.
For help with all aspects of road traffic law and criminal defence in Edinburgh and beyond, please get in touch with us today. No matter your circumstances, we offer a free initial consultation. Call today on 0131 557 9151
