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This offence is governed by section 6 and section 7 of the Road Traffic Act 1988. If a driver is reasonably suspected by a police officer of driving a vehicle, attempting to drive a vehicle or being in charge of a vehicle whilst under the influence of alcohol or drugs they will be required to provide a specimen for analysis. The roadside test is one of breath. Failure of this test or a refusal to provide the test will result in arrest and a further requirement to provide a specimen at the police station.
Failure to provide the preliminary breath test attracts a discretionary disqualification and fine, however, there is scope for the Court to impose 4 penalty points as an alternative if there are sufficient mitigating circumstances. Refusal to provide the further specimen for analysis at the police station is a more serious offence. It carries with it a minimum of 12 months obligatory disqualification in cases where the accused was driving or attempting to drive. If the accused was simply in charge of the vehicle at the time disqualification is discretionary with an alternative of 10 penalty points.
The defence to either of these charges is ‘reasonable excuse’ and the court will take a narrow view of what constitutes such. Full exploration and proper presentation of this defence in court is vital to protect your licence.
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Failure to give proper notice of intended prosecution is a defence unless an exception applies, the exceptions being that a full or provisional fixed penalty notice has been given or fixed or if you were knowingly involved in an accident at the time.Â
You should always keep the envelope the NIP came in as proof of when it was posted. If the notice of intended prosecution is received late, it may still be valid, and you should seek advice on this. On receiving the NID, you are required to identify the driver of the vehicle.Â
You must do this within 28 days, and if you fail to do so, this constitutes a further offence for which your licence can be endorsed with up to 6 penalty points and a fine of up to £1,000 imposed.Â
However, there may be a degree of dubiety attached as to who was driving the vehicle at the time the alleged offence was detected. Section 172 of the Road Traffic Act provides for a specific defence in these circumstances, and legal advice should be sought in this regard.
There have also been human rights questions raised regarding the requirement to identify the driver of the vehicle, which in effect, amounts to self-incrimination. However, this question has been firmly answered in the prosecution’s favour as a result of the Privy Council case of Margaret Brown. As such, there is no entitlement to withhold information. Legal advice should be sought to ensure you stay within the parameters of the law.
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There is an NIP time limit that applies of 14 days from the commission of the offence.Â
However, how this is calculated will depend on how the notice is given. It can be given verbally at the time of the offence (i.e. you are stopped by the police, and they inform you they are considering prosecuting) or by a formal notice of intended prosecution within 14 days of the offence at the last known address, served on the offender or the registered keeper of the vehicle, or by a summons being served on the offender within 14 days of the commission of the offence.
We offer a fixed fee (subject to terms and conditions) in relation to road traffic prosecutions.
YOUR QUESTIONS ANSWERED
If you are arrested or detained for a crime in Scotland, the police must inform you of your rights, such as the right to legal representation. You will be taken to a police station, where you may be detained for up to 12 hours without charge. After this time, you must either be charged or released, or the period extended. If charged, you may be held in custody for up to 24 hours before being brought before a court. The court will then decide whether to grant bail or remand you in custody until your trial.
Yes, in Scotland, being released on an undertaking is similar to being released on bail. Undertakings can be issued to individuals who have been arrested or charged, specifying a date and time to appear in court. A bail undertaking typically involves being charged with a crime and then released with a promise to attend a hearing. Both bail and undertakings come with certain conditions that must be met, such as attending all court dates and not committing any further offences. However, breaching bail or undertaking conditions can lead to prosecution and a prison sentence of up to twelve months.
Yes, if you are in police custody in Scotland, you have the right to free legal advice from a solicitor. This advice is available over the phone or at the police station. You should be informed about this right before being questioned, and the police must wait for the solicitor to arrive before questioning begins. However, if you do not want a solicitor present during questioning, you can waive this right, although it is not recommended. If you are under 18 or a vulnerable adult, you must have a solicitor present during questioning.
If your case goes to court, the Procurator Fiscal will decide which court it will be heard in. The court will review the evidence and then make a decision based on the facts of the case and the relevant law. If you are found guilty, you may face penalties such as fines, community service, or imprisonment. If you are found not guilty, you will be acquitted of the charges, and your case will be closed. It is important to seek legal advice and representation if you are facing criminal charges in Scotland.
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