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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70646
Experience:  Over 5 years in practice
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Hi My partner is 39 and was charged with drink driving as

Customer Question

Hi

My partner is 39 and was charged with drink driving as he was 98mg over. I know there is a mandatory ban on disqualification based on the reading. however, is there any mitigating circumstances that can result in a lower ban in terms of not having a licence?

I know that you can do the driving course which can take off 25% off sentence imposed. My partner is looking at 2 years as his reading was high. This is totally out of character for him and he has been through a lot. Surely judges shouldn't judge everyone the same.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is Jo and I will try to help with this.

What would you like to know about this please?
Customer: replied 3 years ago.
How can he avoid a driving ban or at least get the minimum 12 months. Can mitigating circumstances change the mandatory disqualification period?
Expert:  Jo C. replied 3 years ago.
Thanks.

I am really sorry and I wish I could say something else but I'm afraid that is just plain not realistic.

If this is a breath reading of 98 then he is facing 23-28 months and a community order and costs.

Parliament has set down that a ban is mandatory for all drink driving cases regardless of mitigation or exceptional hardship. Therefore the court has no discretion. It can only be avoided in one circumstance and that is where special reasons apply. They cover things like driving literally no more than a few inches. You are not raising them here. In any event, even if they did, with a reading like 98 a ban would not be avoided even if special reasons were shown.

They can always depart from the sentencing guidlines but you have to show cause. That would only affect the length of the ban obviously. Personal mitigation alone is not usually sufficient in truth. The difficulty with drink driving is that its rare that there is any real mitigation that doesn't amount to a defence. As you know you can reduce the ban period by 25% by doing the course.

You might persuade a court to move outside of the sentencing guideline period of ban but they are not going to reduce it to 12 months i"m afraid.

I'm very sorry but I can only give you truthful information.

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.
Hi thanks, I understand stress can be a major factor in giving a higher than normal reading and before u have been off work sick as a result of stress. Can these be put fwd? A ban will cause one further stress
Customer: replied 3 years ago.
Relist: Answer quality.
Not helpful
Expert:  Ash replied 3 years ago.
I see you have relisted this - what else do you want to know?

Customer: replied 3 years ago.
I don't think this is the best place to get answers as not v helpful. Sorry. Thanks for time
Expert:  Ash replied 3 years ago.
If it helps the sentencing guidelines can be found here:

http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm

Turn to Page 124

You will see for 98 the range is 23-28 months.

The court, as my colleague says can depart from the guidelines but there must be good and unusual circumstances.

The Court MUST impose a ban - this is mandatory. The guidelines as a statutory instrument and can't be ignored - they must be followed.

Otherwise if a sentence is too low, it can be referred to the Attorney General and it can be increased.

Can I clarify anything else for you please?

Alex



Expert:  Jo C. replied 3 years ago.
Stress is not a factor in an alcohol reading.

There is only one thing that affects a reading and that is alcohol.