Driving Ban : Discretionary v Obligatory
There are two types of driving ban: discretionary and obligatory. In the first type of ban, the Magistrates have a choice and in the latter, they have none.
For example, if you are convicted of drink driving then the court must impose a ban for a minimum of 12 months. This increases to 36 months if you have been convicted of drink driving within the last 10 years. However, in both cases the court must impose a ban for at least the set minimum term.
However, if, say, you are convicted or plead guilty to speeding at 42 mph in a 30 mph zone (having been summonsed to attend court) the court as one of its options can impose a short ban of between 7 and 28 days but could instead impose penalty points.
Of course, in imposing those penalty points, a court may well create a situation whereby they must thereafter impose a 'totting up' ban (which might be one of the reasons you were summonsed to court in the first place). Such a driving ban will be for a minimum of 6 months but could well be 12 months or 24 months if, within the preceding 3 years, you have been banned one or more times for a period of 56 days or more.
It can be seen that, ironically, a person before the court for an offence carrying a discretionary disqualification could be better off if the Magistrates simply exercised its discretion to take the more 'serious' option and impose a short disqualification rather than mere points because in doing so the Court cannot under section 44 of the Road Traffic Offenders Act 1988 also impose points. And by reason of the operation of section 29 of the Road Traffic Offenders Act 1988 nor can the Court take into consideration the points it would have awarded, thereby giving a potential 'totter' the possibility of a discretionary ban if upon appearing before the court they already had less than 12 points.
However, the Magistrates are naturally and by virtue of case law often reluctant to do this. Such an argument requires expert analysis and advocacy. Our barristers understand how best to argue for a short discretionary ban as opposed to simply settling for an obligatory driving ban. The difference such a driving ban argument can make, though, is massive: say, a one week ban and no additional penalty points compared with additional penalty points which cause the driver to 'tot up' to 12 points and lose their licence for between 6 months and 2 years (or more).
Contact us today if you think we can assist you further.