Motoring Defence

The police have a general power to stop any vehicle on the road under Section 163 RTA 1988. But they don’t have the power to conduct random roadside tests. To test you for alcohol or drug consumption, they need to have ‘reasonable cause’ to suspect you’ve committed a drink driving or drug driving offence. 

An officer will have reasonable cause if:

You commit a moving traffic offence (like jumping a red light or driving erratically)You’re involved in an accidentYou’re showing signs of intoxication (like glazed eyes or slurred speech)They can see, either by sight or smell, that you have alcohol or drugs on youYou admit you’ve consumed alcohol or drugs 

If an officer has reasonable cause, they can ask you to give a preliminary specimen (breath test or saliva test) – or arrest you immediately under Section 4 of the Road Traffic Act 1988 (driving whilst unfit). The purpose of the arrest is to get a more accurate specimen from you at the police station.

Many police forces hold random stop checks (sometimes called a 'document check'), which sometimes leads to arresting a person for drink or drug driving. In this case, if the officer can’t later prove they had reasonable cause to test (or arrest) you for drink driving or drug driving, this would make your arrest unlawful. 

It’s also worth noting that the officer asking you to do a roadside test must be in full police uniform. 

If your legal representative can find fault with any part of the police procedure, the case against you will probably fail – and you’ll avoid a disqualification or criminal conviction. 

If you’ve been charged with failing to provide a specimen, you’ll be facing the prospect of going to court. You might be thinking of pleading guilty, or you might be wondering if there’s any way to pose a defence. Either way, it’s vital for you to get professional advice and consider all your options.

The penalty for failing to provide can range from ten points on your licence to a prison sentence. It depends on the circumstances of the offence and on how intoxicated you were. If you’re convicted, it can often mean:

Serving a custodial sentenceLosing your licence for a minimum of 12 monthsGetting a criminal recordHigher insurance premiumsBeing branded a ‘high risk offender’Needing a DVLA medical before you can get your licence backPossible VISA and travel restrictionsHaving to go on the Drink Drive Rehabilitation Course

Remember that pleading guilty isn’t your only option. Depending on the circumstances, you could have several ways to pose a defence.

A drug driving penalty will usually result in a ban of 12-36 months, community service or a six-months prison sentence. 

But since the introduction of new drug driving laws in 2015, the police and CPS have had practical problems enforcing them. A lot of police forces still don’t have the right drug kits for roadside tests and many police officers have never been trained to use the tests properly. So a lot of drug driving charges are based on procedures that weren’t carried out properly – meaning the charges won’t stand up to scrutiny in court.

If you’ve been released under investigation and are waiting for your results

Your barrister might be able to force the police to take no further action. If there were early errors in the police procedure, the case against you can collapse immediately.  

If you’ve had a ‘postal requisition’

Most drug driving cases start this way. It means you’ll spend a period of time under investigation or on police bail. Some cases can take months to reach court – this is your opportunity to prepare a defence. With the right advice you might be able to stop the police laying charges.

Speeding is, in our view, one of the most over-prosecuted criminal offences in the UK. Most motorists simply accept the points on their license. But if you know your rights, it’s always worth it to check the evidence first. 

Speeding will get you three to six penalty points and a fine up to £1,000. Depending on the speed, the court might give you an immediate driving ban. If you ‘tot-up’ 12 points within a three-year period, you’ll get a ban of at least six months.

Speeding offences begin in one of two ways;

Being pulled over by the police

If the police pulled you over, they probably gave you a verbal Notice of Intended Prosecution (NIP). This would involve the officer cautioning you for the alleged offence and explaining that you’ll be reported for speeding. The officer might tell you to expect a Fixed Penalty through the post or a summons to attend court. This, of course, depends how far over the speed limit you’re alleged to have gone. If you were pulled over by the police, you’ve probably been caught on a hand-held laser device or a follow-check. 

Getting a letter in the mail

This is by far the most common starting point for most motorists. Police don’t stop every person they suspect of speeding, and often the information comes from an unmanned device like a fixed speed camera. 

The first letter to arrive is the Notice of Intended Prosecution (NIP), along with an ‘S172 notice’ asking you to provide driver details. You should respond to the NIP as soon as possible as it’s usually time-sensitive – but always get legal advice before you do.

Why you should check the evidence

Remember: you’re innocent until proven guilty. It’s for the police and the CPS to prove the case against you (not for you to disprove it), and they’re not going to do you any favours. AT the start of the case, you’ll only see the documents the CPS wants you to see. You usually won’t see any documents that could damage the prosecution's case against you – unless you ask for them.

It’s an offence to use a hand-held mobile phone while driving. It carries a standard fine of £200 and six penalty points on your license, with a maximum of up to £1,000 and six points – although the fine can rise to £2,500 if you’re driving a bus, coach or heavy goods vehicle.

To be found guilty, the prosecution have to prove beyond reasonable doubt that you were driving with a phone in your hand and that you were using it. ‘Driving’ includes being stationary with the engine is running – including in traffic queues, at traffic lights or even parked at the side of the road. 

There are several ways to defend against this charge. You can, for example, use call logs or data usage records to show you weren’t using your phone at the time of the alleged offence. If you were calling emergency services in response to a genuine emergency (and it wasn’t possible or practical to pull over), this would make it an exception to the law.

For most motoring offences you’ll get penalty points and a fine. Once you reach 12 points, the court will give you an immediate driving ban for a minimum of six months. This is called a ‘totting-up’ disqualification. 

This makes it possible to face a six-month ban with only one previous conviction: if you’ve been given six points for a past motoring offence and now you’re facing another one that could earn you another six. 

So if you’re accused of a driving offence that could take you up to 12 penalty points, it’s vital to get legal advice – only by avoiding a conviction can you avoid a ban.

If you do accumulate 12 points, there’s only one way to avoid a ban: you’d need to show the ban would cause you ‘exceptional hardship’. If the magistrates agree, they have the discretionary power to decide against disqualifying you from driving. It’s very important to show the court proper evidence of exceptional hardship though –standing in court and stating that you’ll lose your job probably won’t be enough. Good legal advice is vital to help you make this argument.

Driving without insurance is a serious criminal offence. It carries a penalty of six to eight points on your license and a fine of up to £5,000. The Court also has the discretion to give you an immediate driving ban of up to 12 months.

But there are several defences you can make to reduce the penalty points and fines – or avoid them altogether. 

If you’ve been charged with driving without insurance, it’ll be the result of a police national computer check. But it’s not uncommon for the police computer to make a mistake and to show no insurance when there actually is a policy in place. This is especially common where the driver has fleet insurance cover or a motor trader policy.

It’s also possible to show extenuating circumstances for driving without insurance. 

For example, you could have an honest reason to believe you were insured – your insurance provider may have cancelled your policy without telling you, or the vehicle owner or policyholder could have told you their insurance covered you to drive their car when it didn’t.