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Decisions, decisions. If you have been charged with a driving offence do you need a lawyer?
I am a solicitor specialising in defending drivers charged with motoring offences in the magistrates’ courts and the Crown Court. People often ask me if they really need a lawyer to represent them on a drink driving charge. Lawyers’ services do not come cheap, so it’s an important decision to make.
This guide will help you make the decision if your case is in any of the following categories.
Every case and every person is different. Plenty of drink driving cases have a reasonably low alcohol reading with no aggravating features (such as an accident or young children in the car) and no complex legal issues. After a guilty plea those cases are always going to result in a fine and a disqualification of 12 months or more. Even an army of QCs won’t change that. Some people are quite confident in going to court on their own and are not phased by having to speak to magistrates or a judge. Others might be less used to speaking in public and want someone else to do the talking for them.
To help you decide I have set out some of the things that a solicitor can and cannot do. I have talked about solicitors but a lot of the information applies to barristers too.
Speak on your behalf in court. If you are used to speaking in public you might not be worried about putting your own case in court. Lawyers are there every day. They know what to say and how to say it. It is their job after all. Court proceedings are very formal and there are certain ways of speaking that magistrates and judges expect.
You only get one chance in court. If you get it wrong the consequences can be serious. You need to get it right first time. Nobody wants the expense and worry of an appeal to the Crown Court.
Guide you through the whole process of going to court. Sometimes it is useful to have a helping hand. Having someone on your side who knows what to do and what to say is important. A solicitor will answer all of the practical questions from whether you should plead guilty to where to sit in the court room. Don’t underestimate this. Often people are confused by the whole process, they leave court confused not knowing if things went well or not. If you have a professional adviser they can often set your mind at rest.
Ensure that the court deal with your case properly and fairly. No magistrate, judge or legal adviser ever wants to deal with you unfairly. But courts are busy places and important details get missed if there is nobody there to point them out. That’s one of the main reasons that people have a lawyer to defend them.
Give you advice about pleading guilty or not guilty. A solicitor will look at the details of the case against you and take your instructions about what happened. They will then advise you if you have a defence. If you do have a possible defence then they will tell you about the chances of winning a trial.
Quite often the best advice is to plead guilty. If the case against you is strong then a guilty plea leads to a reduction in sentence and costs are much less.
Tell you if you have a defence or not. Solicitors have experience of what factors in a case could amount to a legal defence. A good solicitor is used to dealing with magistrates’ court trials, they know what will or will not work. If you are thinking about challenging a prosecution against you then you should ask a solicitor before you take the plunge and plead not guilty. Getting it wrong can be very expensive and in extreme cases could make a prison sentence more likely.
You might also think that the case against you is very strong and that you want to plead guilty. Sometimes a solicitor might spot something in the case which means that you really ought to defend it. Having an expert look at the evidence is sometimes worthwhile.
Prepare your case for trial. If you plead not guilty and take your case to trial a solicitor can prepare your case. They might need to: take instructions from you about what happened, take statements from any witnesses that you need to call, deal with expert reports if you need them, communicate with the Crown Prosecution Service and the court, review the prosecution evidence against you, advise you about what will happen at trial, draft defence statements and skeleton arguments, review any important case law, make sure that evidence that you want to challenge is not agreed by mistake, deal with notices from the CPS and the court… The list goes on.
Communicate with the Crown Prosecution Service on your behalf. Prosecutors at court are used to dealing with other lawyers. Most of them are willing to speak to unrepresented defendants but it can be difficult if you are not used to it.
You might also need someone to communicate with the prosecutor before or after the court hearing. A solicitor knows exactly what to say or what to ask for to achieve the result that they want.
Represent you at your trial. There is no rule which says that you have to have a solicitor at trial, many people successfully represent themselves. A skilled advocate makes a massive difference even in a straightforward trial. They know when and how to cross-examine witnesses, what legal arguments to make and what the correct procedure is during the hearing.
The prosecution will be represented by a qualified solicitor or barrister. Challenging what they say can be a daunting process on your own.
Talk to you about special reasons. If you are guilty of drink driving then the court have to ban you from driving for at least 12 months. Occasionally the magistrates find that there are special reasons not to disqualify. These can be things like spiked drinks or driving a very short distance. Special reasons can be quite difficult to prove. It’s a good idea to take advice from a lawyer if you think that you might have a special reason in your case.
Advise you about the right and wrong things to say in court. Solicitors go to court every day. They know what to say that will help your case. But, more importantly, they know what not to say. Saying the wrong thing to the magistrates can result in you losing a trial or getting a longer disqualification than you deserve. You might think that you have a really good point that you want to make at court but a lawyer will know that it will not work. An experienced advocate might be able to put something a different way that reflects well on you.
Give you clear guidance about what your sentence will be. Magistrates and judges have a wide range of sentences for drink driving, drug driving and failing to provide a sample. They can impose a fine, a community order (such as unpaid work, a rehabilitation course or a curfew) or a prison sentence of up to six months. They also have to impose a minimum driving disqualification of 12 months although there is no limit to the length of the ban.
Courts decide what their sentence will be based on sentencing guidelines. You can find a copy of the guidelines on the Sentencing Council website. The main factor in sentencing a drink driving case is the alcohol reading but there is a long list of other aggravating and mitigating features that the courts will take into account.
You might be able to get a good idea of the likely sentence by reading the guidelines yourself. A lawyer knows how the courts interpret and use the guidelines and can often give a fairly accurate estimate of the sentence.
Give you advice about how long you will be disqualified if you are convicted or plead guilty. Courts must ban you for at least 12 months for drink driving, drug driving and failing to provide a specimen. There is no upper limit on the length of a driving ban. In practice, the ban in most cases is decided by the alcohol reading in breath blood or urine. Aggravating features (e.g. a collision), mitigating features (e.g. a genuine emergency) and personal mitigation (e.g. lack of previous convictions) can bring the ban up or down. Drugs cases and failing to provide cases are a little different.
A solicitor knows how the court will put all of these factors together and use the magistrates’ court sentencing guidelines to work out how long the disqualification will be.
Help you to get the right kind of character references and letters. These can be vital in cases where you plead guilty or are convicted. Good references and evidence of your personal circumstances often have an influence the sentence that the court impose. Sometimes references say something that has a negative effect. A solicitor will advise you who to approach and will tell you if you should not use a particular letter.
Make arguments to persuade the magistrates or judge to give you a lenient sentence. Some things go down well in court. Some things do not. A carefully prepared plea in mitigation can make the difference between a community order and a prison sentence. Putting a good case forward might even result in a shorter disqualification from driving.
Give you advice about an appeal. Court cases do not always go the way that you want. You may want to appeal your conviction if you lose a trial or your sentence if it is too harsh. Speak to a lawyer before you take the plunge. They will tell you if you are likely to win and how much it will cost.
Create a defence when there isn’t one. Solicitors will not make up a story for you and will not create a defence out of thin air. They might spot a defence that you didn’t know about.
Change the sentencing guidelines. The guidelines provide a framework for sentencing in all criminal courts. A lawyer’s job is to persuade courts to interpret the guidelines in their client’s favour. But a drink driver with a breath alcohol reading of 40µg/100ml of breath is always going to get a lighter sentence than one with a reading of 130µg/100ml.
Avoid a driving ban after a guilty plea or a conviction (in most cases). If you are guilty of drink driving, drug driving or failing to provide a sample the court must disqualify you from driving for at least 12 months. There is nothing that you can do about it unless there are special reasons (such as spiked drinks or driving a very short distance). No lawyer can ever persuade magistrates or a judge not to disqualify no matter how much the ban will affect you. Even if you will lose your job, your home and your family it will make no difference.
The only good news is that if you complete a rehabilitation course the ban goes down by 25%. Most people are offered the course.
Work miracles. We all try our best for our clients. Unfortunately divine intervention is not a required skill.
Most good solicitors will give you some free advice over the telephone. A five minute conversation can probably answer a lot of your questions and will help you decide whether to go to court alone or take a lawyer with you.
Legal Aid can be obtained for magistrates’ court cases. Most drink driving cases are not considered serious or complex enough for Legal Aid. If you are at risk of a prison sentence or there are unusual issues or law or evidence to consider then sometimes you can get legal aid. All applications for Legal Aid in the magistrates’ court are means tested. Only people on benefits or a very low income will qualify.
You should speak to a solicitor with a Legal Aid contract with the Ministry of Justice for more detailed advice.
I have just talked about solicitors in this article. There are other possible sources of legal advice.
The duty solicitor. Every magistrates’ court has a duty solicitor. They will deal with cases on the day of the hearing. You will not be able to speak to the duty solicitor before the court date and you may only have time for a short consultation before you go into the court room. Drink driving, drug driving and failing to provide are covered by the Duty Solicitor scheme but sometimes duty solicitors will not represent you if you are not at risk of a prison sentence.
Barristers. In the past you had to go through a solicitor to instruct a barrister. Nowadays many barristers operate under the direct access scheme and you can go straight to them. In many ways the service that they offer is similar to that of a solicitor. There are some differences particularly if you want to take the case to trial.
Citizens Advice Bureau. The local advice bureau offers a wide range of advice. They might be able to help with a criminal charge but they will usually refer you to a local solicitor. The CAB will not be able to arrange for someone to represent you in court.
Magistrates’ legal adviser. Each courtroom has a legal adviser whose job is to guide the magistrates. They do have a duty to help unrepresented defendants. They will not have a private consultation with you before or after court but they may give you some direction during the hearing.
Need to speak to a solicitor? Call: 0800 205 5556