Avoiding Disqualification

If we were to lose our driving licence tomorrow then the impact of a disqualification on most of us would be debilitating. In this day and age we have become so accustomed and dependant on retaining our licence and preserving our ability to drive, that a driving ban would not only affect us but others who we deal with in our day to day lives. Whether we use our licence for work, pleasure or for social reasons, and whether we like to drive or not, if that ability is taken away from us then serious difficulties follow. The loss of a driving licence impacts each of us in different ways; to the business man it means the inability to attend crucial meetings, to the carer it means that an aged relative suffers by not being taken to regular medical appointments, to the school run mum it means serious organisational problems.

In recognition of the high importance most of us have to retaining our driving licences we at JMW are able to offer a service that will put forward the best possible application to any Court thinking of imposing a disqualification in order to either minimise the impact of a disqualification or to make an application that will allow the driver to retain his/her licence.

The Road to Disqualification

In brief a driver maybe disqualified from driving in a number of ways;

  • Mandatory disqualification - examples of this include drink driving and other related offences
  • Discretionary disqualification - for the actual offence itself e.g. speeding when aggravating factors are taken in to account
  • Totting up - when the points acquired over the last three year period, are accumulated, if more than 12 the driver is disqualified

The rules that embody disqualification are covered in the Road Traffic Offenders Act 1988 sections 34, 34A, 34D, 35-39, 42, 43, 29 and 26. If Road Traffic Offences carry an obligatory disqualification then a minimum period of twelve months is imposed for those types of offences. However if "special reason" are advanced by the driver then a disqualification can be reduced or not imposed at all. If a person is convicted of an offence that carries discretionary disqualification then the Court can disqualify him for a period they consider appropriate. Those drivers caught by the totting provisions face a disqualification of 6 months.

Drink Related Driving Offences - Mandatory and Discretionary Disqualification

The number of drink related offences that carry disqualification whether that be mandatory or discretionary is disproportionate to the number of other road traffic offences that carry some form of disqualification. This is however indicative as to how seriously the Courts view drink related driving offences. Where a driver has been convicted of a drink related offence then the minimum period of disqualification of twelve months is imposed. Those offences include driving or attempting to drive whilst unfit, driving with excess alcohol, failing to provide a specimen and failing to allow a specimen to be subjected to a laboratory test. There are certainly other provisions that also increase the minimum period to two years and three years for repeat behaviour.

Provisions also exist in the legislation that allows the term of disqualification to be reduced on completion of certain approved courses; this is available at the discretion of the Court for a relevant drink related motor offence. Similar provisions are made for Alcohol Ignition Interlock Programme Orders and those must be completed before the reduction takes effect.

Discretionary Disqualification

These provisions are available to the Court for road traffic offences that result in the licence being endorsed with penalty points and allow the Court a great deal of discretion to deal with the circumstances of each offence as it arises. Sometimes the provisions can be used to the advantage of a driver who would find himself disqualified for a longer period under the totting rules, as the court could be persuaded to disqualify for a period of 14 - 56 days instead of imposing a 6 month disqualification.

Totting Up

The most familiar type of disqualification to most drivers and road users will be the totting up procedure. This is embodied in Section 35 of the Road Traffic Offenders Act 1988 and aims to deal with drivers who repeatedly contravene the road traffic regulations. Some may view this procedure as being slightly excessive as drivers on an unlucky day can skip a red light, be caught on a speed camera or inadvertently cross a zebra crossing. This very quickly puts the driver at the very top end of the totting scale and should there be any previous offences or any future offences then the risk of disqualification is substantially increased. With the Governments proposals under the new Road Safety Act 2006, when implemented, will increase the range of penalty points from two to six and therefore make it more likely for drivers to be disqualified for two offences of speeding rather than four!

Section 35 of the Road Traffic Offenders Act 1988 allows for the mitigating consequences of the conviction to be presented and in those circumstances the Court can order a reduction in the disqualification or order that the driver not be disqualified.

In certain situations a disqualification can be ordered for a minimum period and on top of that until such time as a driving test is passed, any decision before the Magistrate is of course subject to a process of appeal and if a disqualification is imposed an application can be made to the Crown Court to return the licence pending the outcome of an appeal.

Return of Driving Licence

For any currently disqualified driver provision is also made under the Road Traffic Offenders Act to allow a driver to apply to the Court in order to have the disqualification removed. These rules can be complicated to apply depending upon the length and nature of the disqualification and will often result in a full hearing before the Magistrates Court where evidence has to be presented. The Court will take into account the reasons why the licence is requested and the conduct of the driver since disqualification was imposed.

New Drivers

For new drivers the position is slightly different and more onerous where in the first two years of driving if they acquire six or more points then there licence is revoked, effectively meaning that the totting up as far as they are concerned is six whereas normal drivers have the benefit of twelve points. It, therefore, may be even more crucial for a new driver to challenge a Road Traffic Offence in order to preserve their ability to drive. When the new Road Safety Act is implemented, a new driver could lose his licence if one offence of speeding is committed.

Driving Whilst Disqualified

If a driver is disqualified then drives a motor vehicle then by virtue of Section 103 of the Road Traffic Act 1988 a further offence of the driving while disqualified is committed, unfortunately the law takes a rather dim view of people convicted of driving whilst disqualified. In addition to a fine at level five, a prison sentence of up to six months can be imposed together with six penalty points and a discretionary disqualification. A further offence is committed if a disqualified driver goes on to obtain another driving licence which on the face of it entitles him to drive, this on conviction carries a financial penalty, however, the prosecution may pursue far more serious matters of Police Obstruction or Perverting the Course of Justice if there is evidence of use. These offences could result in prison sentences being imposed.


The commission of a road traffic offence does not lead automatically to disqualification. Good representation before the Court and a sound knowledge of road traffic law will certainly assists a drivers' chances of retaining his/her licence. We have dealt with many road traffic cases in our time and are one of the best established firms in the North of England with expertise in this area. One of our cases involved a driver "testing" his vehicle on a motorway at 117 mph; we were able to persuade the court not to disqualify him. Another one of clients was disqualified by three separate courts and we were successful in overturning all three disqualifications.

If there are any issues in this article that concern you then more detailed and specific advice relevant to your particular situation can be given through our fixed fee advice scheme. We will consider all the relevant documentation if provided to us and then advise you over the phone. You will be able to speak to an experienced lawyer who has actually appeared in court and has represented defendants in Road Traffic Offence cases, that person will be either a senior solicitor or a Partner in this firm. That advice will then be confirmed in writing. You can, of course, choose to instruct us to represent you in relation to your case and we are able to cover road traffic cases nationally.

For further information please contact us on 0345 872 6666 or via our enquiry form at the top of this page

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