There are two primary routes to escaping disqualification:
- Exceptional Hardship;
- Special Reasons
The two concepts are totally different and have their own particuar legal meaning that has been defined and developed by case law. These are highly technical and complicated arguments as you will discover from the legal points below. They are best argued by a Barrister on your behalf.
Driving Law are experienced at arguing that special circumstances exist in the particular case of the motorist so that the Court’s discretion, where it applies, should be exercised to allow even totters with 12 points or more to keep their licence. The Court is required to disqualify totters unless "exceptional hardship" circumstances apply.
The exclusion of "hardship, other than exceptional hardship" as an argument against disqualification is contained in section 35(4)(b) of the 1988 Road Traffic Offenders Act. Almost every order of disqualification entails hardship for the person disqualified and it is for the Courts to interpret this phrase. Exceptional hardship is a matter of fact and degree in each particular case and has been held by the Courts to be something "out of the ordinary". The Court is allowed to take into consideration exceptional hardship to the driver and also other people affected by the disqualification such as children and spouses. Other factors include loss of employment (but this often not enough without further evidence of exceptional hardship), finances, prospects, family circumstances. The list is exhausted only by the facts of a particular case. Because the discretion of the Court is so wide and inevitably a little unpredictable, it is important that your arguments are presented properly to persuade the Court of its merits.
Case preparation to ensure that you are demonstrating that you have met the legal criteria for exceptional hardship is all important in these types of cases.
If you are convicted of drink driving it is obligatory that you are disqualified from driving. Section 34(1) RTOA reads:
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 twelve 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 popular possible "escape route" from disqualification is that of "special reasons". A special reason is one which is special to the facts of a particular offence. 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. A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason: see Whittall -v- Kirby  2 ALL ER 552
. Neither is a "special reason" a defence to the charge.
Special reasons, particularly in relation to drink/drive cases, have generated a considerable body of case law and will most commonly be advanced in cases involving:
- driving in emergencies
- inadvertent consumption of drink or drugs.
Where special reasons are put forward in cases of drink and driving, the Court must consider the following factors - see (Chatters -v- Burke  3 All ER 168
- the reason for driving;
- the distance driven;
- the manner of driving;
- the condition of the vehicle driven;
- whether or not it was the driver's intention to drive any further;
- the road and traffic conditions at the relevant time; and
- the possibility of danger to other road users (the most important factor).
In DPP -v- Bristow  RTR 100 the Divisional Court stated that the key question justices should ask themselves when assessing if such special reasons existed on which they might decide not to disqualify was this: what would a sober, reasonable and responsible friend of the defendant, 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?
The onus of establishing special reasons lies on the defence, and the standard is that of the balance of probabilities.
The defence should give notice that they will be seeking to advance special reasons. Failure to do so will entitle the prosecution not only to seek an adjournment but also to cross-examine the defendant on his failure to give such notice so that the Court may consider whether that failure reflected upon his bona fides, see DPP -v- O'Connor  RTR 66
, an authority which is also helpful on the procedural requirements and the general approach to be adopted.
An application can be made to the court to remove the period of disqualification.
The application must be made in court and not in writing. If you have been disqualified:
- for less than 4 years, you have to wait 2 years before you can make the application.
- for less than 10 years, but not less than 4, you have to wait one half of the period of disqualification.
- 5 years in other cases.
The Court will have regard to a number of circumstances, and therefore the application has to be prepared in the strongest of terms. Our road traffic specialist will prepare the application, and a lawyer will attend court with you to present the argument in court.