DVLA banned me for longer than I thought the Court said

[Bluberry]

I was convicted of drunk driving (DR10) in Dec 21 after I was stopped and blew 88. No previous, good character, no aggravating factors and pled guilty at first opportunity. I thought the magistrates said 20 something months ban and that with a course I’d get my license back in early 2023 (it was a bit of a blur) but I just received a letter from DVLA saying I’ve been banned for 36 months. I’m sure that’s not what the court said, and it’s way outside sentencing guidelines for my circs. Is there anything I can do?

 

[price1367]

You are right that for a reading of 88 you should get a ban of 23-28 months. It may be worth checking with the court to see what their record says, in case Ada alas have got it wrong.
If it is 36 months your only option is to appeal to the Crown Court against the sentence, but this has to be submitted within 21 days of the sentence being imposed.

 

[Bluberry]

They confirmed it was 36 months, I don’t understand why they applied the maximum possible outside of sentencing guidelines. Can they do that?

 

[price1367]

They can go outside the guidelines, but they have to say in court at the time why they are doing it.
Can you confirm the reading you were prosecuted on WAS 88? Do you have the original charge sheet?

 

[Bluberry]

Yes 88 and yes I have the charge sheet

 

[price1367]

If you are within 21 days then you are able to submit an appeal to the crown court.if past that time then you are stuck with the 36 months. The ban should have been 23-28 months, with a reduction for the course if completed.

It puzzled me that you say you recollect them saying that you could get your licence back in ‘early 2023’….. even if they gave you the minimum 23 months, (which would be unlikely with a reading of 88) and you did the course, getting 23 weeks off, it would still be mid may before you would get your licence back, which is mid 22023, rather than early 2023.

The only way a court should give a 36 month ban for a reading of 88 is a second conviction in 10 years, or a serious accident with injuries to others.

If the court staff are amenable, it could be worth speaking to the court clerk, saying that you are mystified by 36 months for a reading of 88, point out that the guidelines are 23-28 months and that you are going to appeal to the Crown Court…. But it would save you AND the court a lot of hassle if he would look at the court file to see what was said about the reasons for the lengthy ban……..

 

[Bluberry]

If you are within 21 days then you are able to submit an appeal to the crown court.if past that time then you are stuck with the 36 months. The ban should have been 23-28 months, with a reduction for the course if completed.

It puzzled me that you say you recollect them saying that you could get your licence back in ‘early 2023’….. even if they gave you the minimum 23 months, (which would be unlikely with a reading of 88) and you did the course, getting 23 weeks off, it would still be mid may before you would get your licence back, which is mid 22023, rather than early 2023.

The only way a court should give a 36 month ban for a reading of 88 is a second conviction in 10 years, or a serious accident with injuries to others.

If the court staff are amenable, it could be worth speaking to the court clerk, saying that you are mystified by 36 months for a reading of 88, point out that the guidelines are 23-28 months and that you are going to appeal to the Crown Court…. But it would save you AND the court a lot of hassle if he would look at the court file to see what was said about the reasons for the lengthy ban……..

Thanks I will do that, I think I’m just outside the 21 days as convicted on Dec 16th

 

[price1367]

Yes, you are too late , it is a straight 21 days, including weekends and bank holidays.
Still ask though, if only for peace of mind…

 

[Bluberry]

I’ve emailed the Court as, going back through my WhatsApp messages from the day in Court I was saying I’d got a 20 month ban. I just spoke to them as well and even they were surprised I’d been given 36 months and there was no explanation as to why in the notes they had. Somethings definitely not right.

 

[price1367]

Whilst the appeal time against a sentence is 21 days, there is one other route that you can use, and this might well succeed, it is this:

The Magistrates’ Court has a power to vary or rescind its own sentences if it considers it to be in the interests of justice to do so. This power is contained in section 142(1) of the Magistrates’ Courts Act 1980 (see Further Information below). This provision is often used to rectify mistakes where both the prosecution and the defence agree that an error has occurred, such as the court passing a sentence or making an order which it does not have power to make, or where it is agreed that the court has proceeded on the basis of an incorrect factual assumption. In such circumstances an application can be made to the court under s.142(1) to put the matter right. In exceptional circumstances the court can use this section to increase sentence, such as where it considers it has been misled by the defence.

It has to be done as soon as practicable, and in your case that would be shortly after receiving information from DVLA where your ban was more than you believed it to be.
You would have to get a solicitor to do this. The fact that they gave you 8 months more than the guidelines, and there is no note on the file to say why the Magistrates came to that conclusion, supports your claim that there has been a mistake, coupled with your WhatsApp post about 20 months,
The only other suggestion I have is that you will see that the above opportunity is available where the prosecution agree that a mistake has been made. I am not sure that they will help at this stage, but it could be worth asking the CPS to look at their file and see what they recorded in their paperwork.
I would find it strange that they also recorded the disqualification length incorrectly. If they concur with your recollection that you had a 20 months ban, that would certainly give you cause to have the case re opened…. Or even persuade the court to consider amending their own file straight away. (but that would not be too likely without a further court case for them to amend it. The advantage of that is that it is a re hearing in the Magistrates court, and it could be done by yourself (I would help with the wording)

 

[Bluberry]

Thanks ive emailed the Court and they’re forwarding to the duty solicitor who advised me on the day. I’m not sure what he can do though. The other strange thing is the driving course is in Hertfordshire. I live in Worcestershire and I’m sure the centre I chose in the court was also in Worcestershire. I will appeal tho as I only received the dvla letter after the 21 day appeal window. Christmas post delays I guess.

 

[price1367]

I didn’t realise you had a solicitor. The duty solicitor will have made a note of what the sentence was in his file. Again that will support you in your claim that the wrong ban was recorded. I would have expected him to have said something at the time if they had indeed said 36 months, as well as the court clerk who should be on top of things like that.
You will not be appealing - that is fixed at 21 days- you will be asking for the case to be reopened, to rectify a mistake, as I detailed before.
There could also be the (usually dreaded) report in the press. If a reported was there, the paper might carry what the ban was. If no reported was there, they might only report what the court file said, when they asked the court for a list of offences and disposals for that week.
As to the offer of a drink drive course, the offer will only be a suggested venue. If it is with TTC it will certainly be open to you to chose another option closer to your home, but for the moment all courses are online anyway.

 

[Bluberry]

He wasn’t in court with me, he just offered me some advice before I went in. I doubt he has anything recorded in his files.

 

[Bluberry]

And about the course, I just wondered if the fact it was a county so far away….maybe there was someone else at Court that day from Hertfordshire who’s wondering why they only got a 20 month ban instead of the 36 they thought they’d been given and a course in Worcestershire!

 

[price1367]

That could well be the case. Further enquiries with the court and CPS as I suggested. Also the course provider, see what they have on their referral from the court. Which provider is it?

 

[Bluberry]

IAMDA. The other thing is I’ll only get 36 weeks reduction if I do the course whereas 25% of 36 months is 39 weeks.

 

[price1367]

Correct, the award for the course is UP TO 25% off. Most courts now seem to have adopted a reduction of 1 week per month of ban. The only exception being a 12 month ban attracting 3 months reduction, because that is the least that can be awarded for the course. After that it is “up to a 25% reduction, with a minimum of 3 months off”

 

[Bluberry]

If I need to submit an application as you’ve described earlier, what would you charge to do this?

 

[price1367]

I would not charge, but I would not do all the work for you…. You would write out your case, and I would help you fine tune it to target the relevant facts and not include feelings or other spurious items…..

 

[Bluberry]

That’d be great thanks. Hopefully I’ll hear back from the court soon about my initial enquiry