Tod and Mitchell specialise in all aspects of criminal defence work and regularly appear in criminal courts throughout Scotland dealing with cases in the High Court of Justiciary, the Sheriff Court and the Justice of the Peace Court.
Why use us?
Tod and Mitchell and our team of highly respected and experienced solicitors are well-known for our professional approach, vast knowledge of law and high percentage of case wins. Our head office is based in Paisley giving us the perfect central location for working with clients attending courts in Glasgow, Paisley, Dumbarton, Greenock and many more courts across Scotland.
Road Traffic Solicitors Dumbarton
Road Traffic Crime
According to government statistics motor vehicle offences account for over half of all offences recorded in Scotland over the course of a year.
In 2014-2015 the figure recorded was 52 %, which is equivalent to 366 crimes per 10,000 population.
You may think that going to court will never happen to you but if you drive a car there is a statistical possibility you will find yourself in trouble with the police and needing specialist legal advice.
The most frequent types of Road Traffic Offences are:
(section 2, Road Traffic act 1988)
A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
A person is to be regarded as driving dangerously if
(a) the way he drives falls far below what would be expected of a competent and careful driver
(b) it would be obvious to a careful and competent driver that driving in that way would be dangerous.
Penalties…. Minimum disqualification of 12 months and ordered to resist the extended test of competency to drive.
Additionally, the court may impose a sentence of up to 2 years’ imprisonment or an unlimited fine.
” Dangerous ” refers to danger of injury to any person or of serious damage to property. The offence is committed when there arises a potential to cause injury or damage.
Regard shall be had not only to the circumstances of which a “competent and careful driver” could be expected to be aware but also to any circumstance shown to have been within the knowledge of the accused.
Driving a vehicle which is not roadworthy, despite a valid MOT being in force, might in certain circumstances be considered to be dangerous driving.
Similarly driving whilst suffering from a known medical condition, which might impair the ability to properly control a motor vehicle, could also constitute a contravention of section 2 of the Road Traffic Act 1988.
The statutory test for the Crown to secure a conviction for dangerous driving is high as the prosecution must satisfy the court that the two fold criteria (competent and careful driver and
dangerous) applies to the case.
In certain circumstances the prosecution can be persuaded to accept the lesser charge of careless driving which carries less serious consequences in terms of sentence.
(Section 3 Road Traffic Act 1988)
Driving without due care and attention, or without reasonable consideration for other road users using the road or place.
A person is to be regarded as driving without due care and attention IF (and only if) the way he drives falls far below what would be expected of competent and careful driver. Regard will be had to circumstances within the knowledge of the accused and also circumstances he could be expected to be aware of when looked at objectively.
The penalties which apply are 3 – 9 penalty points or discretionary disqualification. A fine up to a £ 2500.
Causing death by Dangerous Driving
Section 1 Road Traffic Act 1988
A person who cause the death of another person by driving a mechanically propelled motor vehicle dangerously on a road or other public place is guilty of an offence.
The sentence is a minimum of 2 years’ disqualification and up to 14 years’ imprisonment.
Driving under the Influence of Drink or Drugs
Section 5 Road Traffic Act 1988
If a person drives OR is in charge of a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he/she is guilty of an offence.
As of December 2014 the drink driving limit in Scotland has been reduced from 35 mg of alcohol per 100 millilitres of breath to 22 mg. This is effectively the equivalent of more or less one large glass of wine or one pint of beer.
It is a defence to the offence of “being in charge” that there was no likelihood of driving the vehicle. An expert toxicology report is required to satisfy the court that forensically the accused would have been fit to drive at some later time when it was anticipated he/she would drive the car.
The police will require anyone suspected of committing an offence to provide a road side breath test. If the test is positive the suspect is arrested and taken to a police station where further testing will take place on an intoximeter machine. Two breath samples are required for the machine and
the readings will be recorded.
It is possible to pass the test at the police station, but if the readings are above the statutory limit (22 mg) the police will charge the individual with drunk driving. The prosecution will rely in evidence on the lower of the two recorded samples.
Normally the police will subsequently release the accused on what is known as an undertaking to attend court. This provides a date for the court appearance at which the official court papers (the complaint) is served.
Unless the police issue an undertaking that the individual cannot drive pending the appearance in court it is still possible to drive a motor vehicle, as the presumption of innocence applies in Scots
Penalties for Drink / Drug driving offences
.1. Drink driving (section 5 (1) (a) Road Traffic Act 1988), Driving whilst unfit through Drugs
(section 4 Road Traffic Act 1988)
Disqualified from driving for a minimum period of 12 months. For a second drink driving conviction within ten years the minimum period is 3 years.
Maximum sentence of imprisonment 6 months. Fine up to £5000
.2. Drunk in charge of a vehicle (Section 5 (1)(b) Road Traffic Act 1988)
Discretionary disqualification. Up to a maximum of 10 points endorsed on licence.
.3. Refusing to provide a specimen of breath, blood or urine (Section 7 Road Traffic Act 1988)
Disqualified from driving for a minimum of 12 months.
Maximum sentence of imprisonment 6 months
Fine up to £500
Mobile Phone offences
Section 41 D Road Traffic Act 1988
Regulation 110 Road Vehicles (Construction and Use) Regulations 1986
The offence of USING a mobile telephone or other interactive communication device while driving a motor vehicle.
A device is defined as a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
Interactive communication function includes the following:
(1) sending or receiving oral or written messages
(2) Sending or receiving facsimile documents
(3) Sending or receiving still or moving pictures
(4) Providing access to the Internet
The USE of a hands free system can still result in a prosecution should there be evidence that the vehicle was not under proper control and the standard of driving fell short of what would be expected of a competent and careful driver (section 3 Road Traffic Act 1988)
USE of a device extends to situations when the vehicle is stationary e.g. waiting for lights to change at traffic lights or in a traffic jam. This means that texting, checking a web site, etc. whilst driving, even if the vehicle is not moving, is an offence
Use cannot be constituted by holding a phone or moving it while driving the motor vehicle.
3 penalty points and a fine up to £1000
The prosecution has to prove USE of the phone.
The police may claim that they clearly observed the phone to the ear and the jaws moving in what is frequently described as a talking motion.
The Crown case may seem straightforward but the tables can be turned in a variety of ways in an effort to raise a doubt in the courts mind.
Mobile Phone Records
It is unlikely that your mobile phone service provider will provide you with a detailed list of calls made and received. This is evidence which can be very useful to support the defence case. A petition for specification of documents at the Sheriff Court is often necessary, whereby a sheriff will order a phone company to provide such information.
As well as phone records a close examination of the locus (road of the alleged offence) obtaining photographs and video footage which can be lodged to support the defence and challenge the police evidence.
A report from a road traffic expert challenging the police can often prove to be instrumental in securing an acquittal.
We frequently instruct expert reports from retired senior ranking police officers who now put their expertise and experience at our disposal.
At Tod and Mitchell, we have a number of experts to call upon who provide a professional road traffic investigation service.
Detailed locus inspections and reports based thereon can be lodged as a production in the defence case.
Our road traffic expert may thereafter be called to give evidence to assist the defence case.
Everything is done to prepare your case for trial.
Our team of solicitors and solicitor-advocates have over 25 years’ experience in dealing with such matters and many satisfied and grateful clients who will to our attest to our expertise.
Road Traffic Regulation Act 1984 (section 81 & 89)
Government statistic for 2005 state that speeding offences account for 31% of motor vehicle offences.
Driving in excess of the speed limit and caught by a speed camera by the side of the road (GATSO camera) or by a police officer using speed measuring equipment may result in the following:
You may be issued with a fixed penalty notice (3 penalty points and a fine) or you may receive a complaint to attend court.
There a number of very important issues which arise in relation to the complex law that surrounds a speeding case.
The registered keeper will, or in fact should, receive, within 14 days, a Notice of Intended Prosecution (NIP) and a Section 172 notice requiring him or her to confirm the details of the person driving the vehicle at the time of the alleged offence, and respond to this enquiry within 28 days.
It is important to respond to this letter as failure to do so may result in a separate prosecution in terms of section 172 Road Traffic Act 1988 whereby the penalty points rise to 6 on conviction or a guilty plea.
Stopped by the Police!
The police use a large variety of equipment to detect speeding offences such as hand held radar guns, properly calibrated speedometers, average speed cameras, etc.
Court papers must be served on an accused within 6 months of the alleged offence failing which the prosecution may be time barred.
More serious speeding offences can result in a fine up to a maximum of £2500 if speeding on the motorway, 3 to 6 points or discretionary disqualification.
Fixed penalty notice, 3 points and a fine £100.
The prosecution in speeding cases, regardless of how the speed is measured, is open to challenge.
Losing your licence can have serious and far reaching consequences.
At Tod and Mitchell, we will closely scrutinise the Crown case looking for failings in what is a complex area of law.
We have experience in dealing in with all forms of speed detection equipment from GATSO, Vascar and ProVida (average speed measurement by police), average speed cameras (resident system on the m77, A9 and elsewhere) and the Falcon and Unipar hand held radar guns.
These systems are open to challenge in a variety of ways, not least of which the complex minefield of calibration certificates.
Driving without Insurance
Section 143 Road Traffic Act 1988
A person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance.
Section 143 (3) provides defences to the charge e.g. using the vehicle in the course of his employment (company vehicle) or that he neither knew or had reason to believe that there was not in force in relation to the vehicle such a policy of insurance.
Unless a Statutory Off Road Notice (SORN) has been made to the DVLA the vehicle must be
S 143 of the Road Traffic Act 1988 is a strict liability offence which essentially means that the vehicle must be insured and unless the circumstances fall within section 143(3) there is no defence available in law.
Special Reasons may apply however (see below)
Discretionary disqualification or endorsement on your licence of 6 – 8 penalty points.
Fine up to a maximum of £5000
Section 34 (1) Road Traffic Offenders Act 1988
“Where a person is convicted of an offence involving obligatory disqualification the court must order him to be disqualified for such period not less than 12 months as the court thinks fit unless the court for SPECIAL REASONS thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”
A special reason is one which is special to the facts of a particular case. It is a mitigating or extenuating circumstance which is directly connected with the commission of the offence and which can properly be taken into consideration by the sentencing court.
It is not a circumstance peculiar to the offender nor is it a defence to the charge.
Special reasons particularly in relation to drink driving offices (section 5(1)(a) Road Traffic Act1988) have generated a considerable body of case law.
In cases involving drink driving the court will consider factors such as under noted. This is not an exhaustive list as each case depends on its own facts and circumstances:
.1. The reason for driving
.2. The distance driven
.3. The manner of the driving
.4. The condition of the vehicle driven
.5. Whether or not the driver intended to drive further
.6. The road and traffic conditions at the relevant time
.6. The possibility of danger to other road users
The onus of establishing special reasons lies on the defence, and the standard is that of the balance of probabilities.
One of the questions the court asks itself when deciding if special reasons existed is this: what would a sober, reasonable and responsible friend of the accused, present at the time, but himself a non-driver and thus unable to help, have advised in the circumstances, to drive or not to drive?
If special reasons exist, then the court should exercise its discretion not to endorse or disqualify (or to disqualify for a shorter period than 12 months).
Special reasons can be argued in various cases, not least of which NO INSURANCE (section 143 Road Traffic Act 1988).
Strict liability applies and therefore someone might find themselves in a position whereby they are technically guilty but there may be circumstances behind the offence that make the court judge the person as legally blameworthy, but morally innocent.
In such cases the court may find special reasons for not imposing a penalty (points or disqualify)
Examples of such cases might include:
.1. Cancellation of an insurance policy by the insurers whiteout telling the policy holder
.2. Faults attributable to an insurance company that has resulted in no policy being in force
.3. A person informed by the owner of the vehicle or policy holder that he/ she can drive the vehicle
.4. A person having a genuine reason to believe he / she is insured even if the person is not.
The hardship must be exceptional and each case is decided on its own facts and circumstances.
The hardship must be exceptional and not something which results in a mere inconvenience to the accused.
The severity and degree of the hardship must be established and the court will assess the seriousness of the implications of the 6-month ban from driving.
The court will also consider the effects of a disqualification on other persons. This can be a very important factor which weighs heavily in the courts mind in coming to a decision.
The standard for what is considered exceptional hardship is set relatively high, it is therefore vital that the argument is prepared and presented properly.
We at Tod and Mitchell have successfully dealt with both Special Reasons and Exceptional hardship arguments for years and we know how to identify key issues and present a successful argument to allow the court to find in favour of our client.
We have a specialist legal team of court lawyers who know how to deal with these situations by presenting the evidence and closing with submissions which include reference to the most recent and relevant case law. Such experience is invaluable when cases are finely balanced and a disqualification is at stake for our client.
Tod and Mitchell cater for all forms of road traffic crime including:
.1. New Drivers facing a possible revocation of their licence
.2. Failing to stop and report an accident (section 170 Road Traffic act 1988)
.3. Totting Up Bans
.4. Petition for Removal of disqualification
.5. Taxi Drivers
.6. HGV drivers
.7. Construction and Use offences
.8. Disqualified Driving
and all other road traffic crime in Scotland
Tod and Mitchell, (criminal defence specialists for more than 20 years)
Tod and Mitchell has a team of experienced criminal specialists with High court solicitor advocates and solicitors with over 20 years of service at your disposal.
We have data bases with teams of experts to call upon to provide specialist reports in each case, when it is felt appropriate to do so.
Our highly skilled and experienced team of solicitors will be at your disposal should you make that call to Tod and Mitchell.
We have the knowledge and legal resources to fully commit to your case and do everything we can to get the best possible outcome.
It’s important to come and speak to one of our lawyers at the earliest opportunity as the earlier we find out about your case the more we are able to do for you.