We are registered to provide civil and criminal legal aid."Totting Up" is where a person faces disqualification from driving due to having accrued 12 penalty points on their licence within three years. Our experience in this area tells us that people are often confused when calculating the number of penalty points that are taken into account here. The safest route is always to seek independent legal advice from an experienced road traffic lawyer prior to responding to any fixed penalty notice or citation to attend court. We can help you with this and will advise you how best to proceed.
If a person is driving with 9 live penalty points a further fixed penalty notice bringing 3 points will render them liable to totting up disqualification, which is usually a disqualification period of 6 months. Similarly if a person has for instance only 6 points on their licence but faces a charge such as careless driving then the court may consider imposing penalty points which will bring the number to 12 and again "totting up" disqualification becomes an issue.
If a court is considering imposing such a ban then it is customary for any unrepresented person to be allowed the time to consult with a solicitor. The reason for this is that it is possible to place certain arguments and evidence on your behalf before the court which may prevent you being disqualified at all. We would suggest that you take legal advice at an early stage and most definitely prior to any court hearing in order to ensure that your driving licence is protected and the best outcome possible is achieved for you.
How can I avoid a totting up disqualification?
The first thing is to consider whether or not the latest alleged offence is one that you are actually guilty of e.g. did you really go through a red light? If there is a defence then this must be pursed vigorously to avoid the prospect of totting up disqualification. If acquitted then “totting up” disqualification will simply not be an issue.
If you have committed the offence and will have accrued 12 penalty points then a court hearing will be required and your attendance is usually required given the prospect of disqualification. (It is not possible to accept a fixed penalty offer that would lead you to having 12 points, the Police will simply return your cheque and licence with an indication that the matter will be referred to the Procurator Fiscal for a court hearing). At the hearing, if you accept the offence the court will indicate that disqualification is likely.
It is at this stage that your solicitor would require to advise the court that there may be reasons that the court should not proceed to disqualification and would request that a further hearing be assigned – usually called an “Exceptional Hardship “ proof.
What is an “Exceptional Hardship" and how could it apply to me?
Such a proof is similar to a trial. The accused is required to lead evidence which shows there are exceptional reasons why the court should not resort to disqualification. The legislation that covers this area is quite clear that circumstances such as losing your employment or being unable to pay your mortgage are not to be considered relevant - Parliament basically stated that if a person relies upon their driving licence to work and maintain a home they should drive with great care and cannot rely upon such circumstances to ask the court not to disqualify.
Existing case law shows that the courts will accept circumstances which include having a relative with a medical condition who relies upon you exclusively for care; being an employer who relies upon a driving licence to run a business that couldn’t afford to employ another driver or if loss of a business owner’s driving licence would lead to members of staff losing their employment. The courts, though, interpret the law narrowly and carefully constructed evidence is required in order to succeed with such an argument. Documentary evidence relating to your financial position or medical situation will be required, along with evidence perhaps from family members or employers.
If a person succeeds with an exceptional hardship argument the court will impose the penalty points it considers appropriate in relation to the offence but crucially the court will NOT then proceed to disqualify the driver.
What if I can`t argue for Exceptional Hardship?
The norm is that the court will impose a six month period of disqualification. If previous disqualifications under totting up exist then the minimum period of disqualification of 12 months will apply. Once a driving licence is returned after such a ban all penalty points will have been removed and the driving licence will be “clean”.
Road traffic law in general, including “totting up” and Exceptional Hardship are highly technical and complex areas of the law. Seek expert advice at the outset - this will allow you the best chance to avoid disqualification or to limit the ban if there is no other route to pursue.
Contact Our Road Traffic Appeals Solicitors Now
Thorley Stephenson SSC’s appeals solicitors can help provide you with outstanding legal advice and representation. Please contact us today on 01315569599 to speak to one of our solicitors.
