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13October2017

Drink & Drug Driving Mitigation

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Conor Johnstone

Mitigation to reduce your ban.

Everyone charged with a criminal offence has a fundamental right – to plead not guilty. As a firm of specialist solicitors, we would always advise our client’s to check the evidence. Before reading the rest of our guide, take a look at the common questions below.

This is a common misconception.

If you are convicted by the court after pleading not-guilty you will lose credit. However, that credit only relates to the fine, community order or prison sentence. In reality, more defendant’s are only ever looking at a fine. An early guilty plea will result in a reduction of 33% on the fine. The length of ban remains the same, even after a trial. For most people, the ban is the biggest concern. This will not (and cannot) increase if you choose to challenge the case.

This is an unusual, but common question.

It is important that you think about what ‘guilty’ actually means. By pleading guilty, you are admitting to the alleged offence. You may accept that you drove whilst over the limit, but this will not make you ‘guilty’ per se. If it did, then a large number of our clients would be ‘guilty’. Cases often fail because of procedural mistakes, prosecution inefficiencies and technical defences. By pleading guilty, you are accepting that every part of the process was completed correctly. How can you be sure of this without checking the evidence?

The only person who will ask you questions is your solicitor. Ultimately, you have the right to chose. First of all, you would never be questioned by a prosecutor on your first court date; as you are not there to give evidence but to enter a plea. If the cases proceeded to a trial, then it is up to you as to whether you give evidence. No one can force you to speak; you have a fundamental right to silence.

Of course, if you attend without a solicitor then yes, you will be expected to answer questions in court.

Now that we have established that your ban won’t increase and that you don’t have to answer questions in court, you might want to think about your chances of ‘winning’ your case. ‘Winning’ comes in many forms – the CPS dropping a case, a ‘deal’ being struck, a ‘not-guilty’ verdict.

It is a proven statistic that if you instruct M.A.J. Law, you are more likely to win your case than to lose it. For most of our clients, that is enough. You can read more about our success rates on our individual offence pages.

“I want this over and done with.”

Whilst we would never advise a guilty plea without checking the evidence, some clients are certain it is best for them. We would support your decision no matter what – and will always employ certain techniques to ‘reduce the damage’. So the key questions is:

Can mitigation help to reduce my sentence?

…the answer is yes. Any person who pleads guilty (or is found guilty) will have an opportunity to present mitigation to the court. The purpose of mitigation is to focus attention on the positive aspects of the case in order to reduce culpability or seriousness. It is important that we help the magistrates understand why the offence was committed. For example, if a client is found to be drug driving at 11:30pm on a Sunday evening, the court should be informed that the roads were quiet, there were no pedestrians etc… By focusing the attention on positive aspects, we should achieve a better outcome.

It is important to understand that a mitigation is not and cannot become a defence. A common error is for the defendant to put forward so many excuses and explanations that their mitigation is rejected because it amounts in fact to a “not guilty” plea. The critical distinction is to persuade the court that you are ‘less guilty’ rather than ‘not guilty’.

You will need to explain to the court how the likely punishment would affect your life and possibly others around you. The court may want to hear what steps you are willing to take to prove that this will not be a repeat offence (such as rehabilitation course, counselling, employment etc…).

A defendant who is willing to help himself, will be helped by the court.

We should try and persuade the court that;

  • The defendant is remorseful & sincerely apologetic (note: the Magistrates’ Court Sentencing Guidelines specifically lists ‘genuine remorse’ as a mitigating factor)
  • The defendant will not make the same mistake again (this addressing ‘reoffending’)
  • There was a justifiable reason for driving the vehicle (this will help to counter the prosecution’s facts)
  • The standard of driving was not careless or dangerous (this will reduce your culpability)
  • The defendant was fully compliant and cooperative
  • The circumstances which led to the offence were beyond the defendant’s control

Can mitigation reduce my driving ban?

In theory, mitigation should not reduce your driving ban. In reality, it may.

The key factor in determining disqualification periods is the result of the breath, blood or urine sample. In ‘failing to provide cases’, the key factor will be your demeanour at the police station. In drug driving cases specifically, the starting point is a 12 month disqualification for a first time offender (even if the result is high).

If the magistrates understand your circumstances, and accept your mitigation, they may reduce the disqualification period. There is nothing in law which requires them to do so but, just like me and you, they are human and can empathise with defendants. This is the importance of a well structured and compelling plea. Not all mitigation is relevant. It is for your solicitor to identify the key facts and present these to the magistrates.

Drink Driving Sentencing Guidelines

Read more about the Magistrates’ Court Sentencing Guidelines for drink driving.

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