How to Successfully Defend Against a Totting-Up Ban

'Totting up' is the offence used to describe when a driver passes the 12-point limit within a three-year period. It carries some serious implications, including a driving disqualification.

In some cases, it may be possible to defend against the penalties of a totting-up offence. However, doing so requires the expertise of a legal professional, well versed in motoring offences and exceptional hardship arguments. Today, we will explore how an expert solicitor can help you to reduce or avoid a driving ban from totting up.

Understanding Totting Up

Totting up is outlined by the Road Traffic Offenders Act 1988.

The impact of a totting-up ban is more than the inconvenience of being unable to drive. It can lead to higher insurance premiums, job loss or the loss of new career opportunities. For drivers who have loved ones relying on their ability to drive, it can cause personal difficulties.

What Happens After a Totting Up Offence is Given?

If you accrue 12 or more penalty points on your licence and are within the three-year limit, you will be summoned to court. The court will consider the circumstances of your case, including any previous convictions.

At the hearing, you will have the opportunity to argue why you should not be disqualified from driving, or make a guilty plea, accepting your charges.

During the period of disqualification, it is illegal for you to drive. After the disqualification period has ended, you will need to apply for a new driving licence and, in some cases, you may have to retake your driving test or an extended driving test before your licence is returned to you.

Legal Defences Against a Totting Up Ban

There are two key defences that solicitors can typically use when faced with a totting-up ban: making an 'exceptional hardship' or a 'special reasons' argument. The 'exceptional hardship' defence requires you to demonstrate that a driving ban would cause undue hardship beyond the normal inconveniences associated with losing the ability to drive. The 'special reasons' defence is applicable if you can prove that there were unusual circumstances leading to the penalty points.

What Counts as a Valid Exceptional Hardship Argument?

The driver must argue that disqualification from driving would cause an exceptional level of hardship to them or others. This goes beyond the normal inconvenience of losing one's ability to drive.

• Loss of employment: if the loss of your driving licence would lead to unemployment, and you can demonstrate that it would be exceptionally difficult for you to find another job, this could be considered exceptional hardship. It is especially compelling if you are the primary earner and others rely on your income.
• Impact on dependents: if you have dependents, like children or elderly parents, who rely on your ability to drive for their care or wellbeing, this could be seen as exceptional hardship.
• Impact on business: if you own a business that would fail or suffer significantly without your ability to drive, you may be able to argue exceptional hardship.
• Impact on employees: if your inability to drive could lead to redundancies within your business, affecting other people’s livelihoods, the court may consider this as exceptional hardship.
• Severe medical conditions: if you or a dependent have a severe medical condition that requires regular hospital visits/ medical appointments, that would become impossible or extremely difficult without a car, this could qualify as exceptional hardship.

What is Not Considered a Valid Exceptional Hardship Argument?

The following reasons for why a totting-up ban would be problematic are not accepted by UK courts:

• Inconvenience: the simple inconvenience of not being able to drive, such as being required to use public transport, is generally not enough to prove exceptional hardship.
• Financial cost: extra costs associated with losing your licence, such as needing to pay for taxis or public transport, will typically not be sufficient.
• Impact on social life: reduction in social activities or hobbies due to loss of driving privileges is not considered exceptional hardship.
• Impact on career progression: if the loss of a driving licence merely hinders career progression, but does not result in job loss, it is unlikely to be considered exceptional hardship.

What Are Considered Valid Special Reasons?

Special reasons are slightly different to mitigating circumstances as they provide a reason for why you committed the offence, rather than for why being convicted would be troubling. Accepted special reasons include:

1. Emergencies: if you were driving in an emergency, such as rushing a critically ill person to the hospital, it may be considered a special reason.
2. Shortness of distance driven: if the offence occurred over a very short distance and did not present real danger, the court might consider this as a special reason.

What are not considered valid special reasons?

The following examples are not considered valid special reasons for totting-up:

1. Ignorance of the law: not knowing the law or misunderstanding it.
2. Hardship or inconvenience: personal hardship or inconvenience resulting from disqualification.
3. Lapse in judgement: a momentary lapse in judgement, such as deciding to drive after drinking.
4. Reliance on driving for work: relying on your car for work, even if a disqualification would lead to job loss.
5. Financial impact: the financial implications of disqualification, such as increased insurance premiums.

Do I Have to Attend Court for a Totting-Up Offence?

You will usually be required to attend a court hearing for a totting-up offence. Attending the hearing gives you the opportunity to present an argument as to why you should not be banned, with the help of a professional solicitor. If you do not attend, the hearing may proceed in your absence, and you would not have the chance to present your case, which could result in a harsher penalty.

However, in some circumstances, you might be allowed to be legally represented without needing to be present personally. It is strongly recommended to seek legal advice to understand the best course of action.

When Does a Totting-Up Ban Start?

Your proposed ban will most likely begin on the day the court makes the disqualification order. In other words, you would be banned from driving from the date of your court hearing. However, if you appeal the court’s decision, the ban may be suspended until the appeal is heard.

How Long Does a Totting-Up Ban Last?

A driving ban for totting up typically lasts for a minimum of six months. If you have had a previous disqualification for at least 56 days within the past three years, the ban increases to one year. If you have had more than one disqualification of this nature within the same timeframe, the ban could be as long as two years. You should note that the length of the ban can depend on the specific circumstances of your case and the discretion of the court.

What Happens if My Points are Due to be Removed from My Licence Before My Court Hearing?

The key date in totting up cases is the date of the offences, not the date of the court hearing. This means that if you committed several offences, but some of these points are due to be removed before your court hearing, you may still be disqualified under the totting-up rules. This is because the court will consider all offences that occurred within the three years preceding the most recent offence, regardless of when the hearing takes place.

How Long Does a Totting-Up Offence Stay On Your Driver's Licence?

When you are disqualified from driving for totting up, the points that led to the disqualification are removed from your licence. However, the fact that you have been disqualified remains on your driving record for four years from the date of conviction, even though the disqualification itself may be shorter. If the offence is serious, such as drink-driving, the conviction may remain on your licence for up to 11 years.

Can I Drive as Soon as My Ban Ends?

If your disqualification was for 56 days or less, you should receive your licence back at the end of the disqualification and can drive as soon as the ban ends. If your ban was for a longer period, you will need to apply for a new licence from the DVLA and, in some cases, you may need to retake your driving test or take an extended driving test before your licence is returned to you.

Can I Still Be Given a Fixed Penalty Notice (‘FPN’) if I Have Nine or More Points?

If you already have nine or more points on your licence, you should not be issued an FPN for any offence that carries penalty points because an FPN carries a minimum of three points, which would take your total to twelve or more, triggering a possible disqualification under the 'totting-up' procedure. In such cases, the matter should be referred to court.