In Texas, the standard advice given by an attorney to his client is not to provide any specimens of breath, blood or urine for analysis if they are ever accused of drink driving. This is because Texas has no law criminalising the refusal to provide a specimen; however, in the UK refusing to provide can result in a prison sentence and will always lead to a driving ban… well nearly always.
You see, there are two different offences of failing to provide and the key to whether you lose your licence or not is where the offence takes place. Refusing to provide an evidential specimen at the police station or in a hospital is a serious offence. Conviction carries a minimum driving ban of 12 months (you can escape even this driving ban if the court finds a specialreason) and if there is evidence that you were seriously impaired you can end up with a prison sentence! However, if you refuse to provide a preliminary specimen at the roadside the sentence will normally be a small fine and 4 penalty points.
But, it doesn’t always work out that way. We at Oxford Drink Driving Solicitor were recently instructed to represent a lady accused of drink driving at the magistrates’ court. She had a previous conviction from four years ago for failing to provide at the roadside but the list of previous convictions showed she had been disqualified for 18 months and received a fine of nearly £1,000.
Speaking to the client it emerged that she had been represented by the court duty solicitor. She said that the hearing happened very quickly and she hadn’t really understood what was happening but assumed everything had been done properly.
Having checked the facts it is indisputable that the sentence imposed was outrageously over the top. You might hope that the magistrates’ legal advisor, prosecutor or duty solicitor would have recognised the mistake and intervened but clearly nobody did. A solicitor who specialised in drink driving law would have spotted the error immediately and prevented the sentence being passed.
Now, if you have one of a short list of previous convictions within the past 10 years and come before a court to be sentenced for a second drink driving offence the court is obliged to impose a minimum driving ban of 3 years.
The court noted the previous conviction for failing to provide and the length of the sentence before stating the minimum three-year period applied. If the conviction were for failing to provide at the police station the court would have been correct; however, failing to provide at the roadside is not an offence that attracts the minimum 3 year disqualification. Once again, neither the legal advisor nor the prosecutor spotted the mistake being made. Fortunately, Nick Diable was representing the defendant and immediately prevented the magistrates going further and imposing another unfairly long sentence.
If you are facing a court hearing instructing an expert solicitor with experience of the relevant area of law you can avoid becoming the victim of a court mistake.