Most of us have preconceptions about drink driving. Perhaps you envision someone drinking heavily each evening after work and then driving home. A claim of exceptional hardship might then be thought of as a way for those who frequently drink and drive to avoid the repercussions of their routine behaviour. The facts are much more complicated than that. While an experienced solicitor might help avoid a drink driving ban due to exceptional hardship, it may not be for the reasons you would expect.
Morning after drink driving
As you might imagine, drink driving arrests are most frequent in the evening, however, in 2011 more people failed breath tests between 6 am and 11 am than in the hour before and after midnight. This is largely attributed to people still being over the legal limit for alcohol they consumed the night before. Commuters being arrested for drink driving on their way to work in the morning is quite different from our perception of how drink driving normally occurs.
Since 1970 drink driving fatalities have decreased 83 percent in the UK. This is due to improved vehicle safety, tougher drink driving regulations, and better public awareness of the dangers of drink driving. In spite of these efforts, a report by the UK’s THINK! campaign found that 33 percent of the drivers surveyed were unaware that four or more servings of alcohol consumed at night could still cause them to be legally drunk the following morning. In a different study, 46 percent of drivers were unaware of how long alcohol remained in the bloodstream.
This means more public education is necessary to alert drivers to the perils of morning after drinking. In the meantime, this ignorance leads many morning commuters to face life-altering legal repercussions for what could be a one-time lapse in judgement.
The truth about exceptional hardship
Periodically rulings based on a claim of exceptional hardship make the news. The Telegraph published an article back in 2010 stating that ten thousand people had avoided driving bans that year, in spite of having 12 or more points. The newspaper reported that approximately one in four drivers facing disqualification had been shown clemency by the courts due to exceptional hardship. This prompted some advocates to express concerns about how many people with 12 or more points were able to avoid the driving ban.
The Sentencing Council mandates a tolling up disqualification if a driver reaches 12 points, however, it provides the courts with the ability and the obligation to make a ruling based on the circumstances involved in each specific case. In addition, although a 6-month disqualification is the recommended minimum, the courts are able to adjust the driving ban based on the driver’s history and any mitigating factors. This is an important provision of the law as under the points system a driver might reach the 12-point disqualification level after one speeding ticket and a single drink driving arrest. Another driver might reach the same 12-points whist clearly displaying a high likelihood of recidivism. The courts have the ability to provide for a longer ban if circumstances warrant it while recognising any exceptional hardships a ban might create.
The legal standard is that routine hardship is not sufficient to justify reducing or avoiding a driving ban. Only hardship that is exceptional is considered although other personal circumstances may be a factor in a determination of disqualification. Under the law, a driver who has previously avoided a driving ban due to exceptional circumstances cannot use those same exceptional circumstances in the following three years to fight another pending disqualification, so helping to prevent drivers from repeating driving offences and continuing to avoid penalties. In this way, the exceptional hardship provision protects drivers from being unduly penalised for what might be a single offense while protecting society from repeat offenders.
Recent celebrity cases have brought greater public attention to the concept of exceptional hardship. Where former Manchester United footballer, Ray Wilkins, was awarded a four-year driving ban – Wilkins had a history of drink driving and was arrested after he was found driving erratically and consuming alcohol as he drove – footballer Joe Cole was able to avoid a one since it was found this would cause his wife exceptional hardship. She was no longer able to drive after being traumatised by a carjacking so she relied on her husband’s ability to do so. In the past, courts have also ruled that exceptional hardship can include the ability to care for one’s extended family or to protect from damage to a business.
However, protecting one’s own job is not considered an adequate reason in itself for waiving a driving ban. For example, a Bradford motorbike instructor’s 4-year driving ban for drink driving was upheld because the judge viewed that the instructor would have been fully aware of the potential consequences of his actions and had foreknowledge that his livelihood would be threatened if he were to commit the offence.
In the UK, the number of drink driving fatalities has stayed fairly consistent since 2010. This prompted Scotland to lower their drink driving limit from 50mg per 100ml of blood in December 2014. In June 2016, legislation to lower the drink driving limit from 80ml to 50ml throughout the rest of the UK was passed by the House of Lords before running out of parliamentary time. The issue is likely to be revisited since a recent study showed 77 percent of UK residents support stricter drink driving regulations. Legislative changes are likely to create new challenges in the future for drink driving solicitors.
Image cc by Ben Salter on Flickr.