There are several road traffic offences in Scotland, each with distinct legal limits, evidential requirements, sentencing options, and defence options. One of the most common areas where road traffic defence is inadequate is in how it treats speeding, dangerous driving, drink driving, and drug driving as all being the same problem and therefore applying the same legal approach. Professional solicitors like McGovern Court Lawyers take the same approach to road traffic work as they do other aspects of criminal defence work, as the differences between the charges are significant enough to make a difference in a case.

Speeding Offences and the Procedural Defences Available

The process of prosecuting speeding offences in Scotland has several specific features that provide substantive defence opportunities beyond challenging the recorded speed. The technical and procedural challenges depend on the method used to measure speed (e.g., a fixed camera, a mobile camera, a laser device, or following a police vehicle). A specialist road traffic solicitor will examine each of the lines of challenge in detail, including Notice of Intended Prosecution requirements, the accuracy and calibration of speed-measurement equipment and the reliability of witness identification in following-distance cases. What may seem like a no-brainer case for speeding can have procedural issues that are uncovered upon careful review.

Dangerous Driving and the Standard It Requires

In determining dangerous driving, the Crown must prove that the level of driving was significantly below that of a competent and careful driver, and that it would be apparent to a competent and careful driver that such driving would be dangerous. That’s a higher threshold than careless driving, and the difference between the two charges is one that competent road traffic defence will seek to make wherever the facts allow it. The evidential basis for a dangerous driving charge, whether that’s witness evidence, dashcam footage or accident reconstruction evidence, must be carefully examined, and the defence case must be tailored to accommodate a detailed understanding of how the Crown will seek to prove the required standard.

Drink Driving and the Technical Dimensions of the Charge

In Scotland, prosecution for drink driving requires a specimen reading to be over the prescribed limit, and there are procedural requirements relating to how the specimen was obtained that may be of assistance in a defence. There are specific technical aspects to the operation of the breath testing device, a statutory warning that must be given before the specimen is taken, any medical or physical condition which may affect the validity of the reading and a statutory back calculation argument if a significant time interval has passed between driving and testing, which must be considered. A solicitor who takes a very black and white view of drink driving cases may not be seeing the big picture that is most favourable for the defence.

Drug Driving and the Distinction From Drink Driving

The evidential and legal framework for drug driving offences is different to that for alcohol-related offences, and the differences are of practical importance. The prescribed limits for controlled drugs are kept to a low level, and a statutory medical defence applies if a drug was taken under medical advice and driving was not impaired. Specialist road traffic defence has a role to play in the reliability of the roadside screening device, the treatment of the blood specimen and the toxicological evidence establishing a level above the prescribed limit. Drug driving cases are not just drink driving cases with another drug involved; they involve a different type of analysis.

Careless Driving and the Scope for Mitigation

Careless driving, driving without care and attention, or driving without reasonable consideration for other persons using the road, is a broad offence and is often used when the factual issue is not what happened, but whether the act or omission amounted to the legal offence. In careless driving cases, the defence could be based on the standard applied, on contributory factors beyond the driver’s control, or on mitigation that minimises the sentencing consequences, even where the charge is not disputed. These factors determine whether a fixed penalty disposal is issued or a court appearance, with the possibility of disqualification, is held, and the importance of specialist advice at an early stage is very great.

Totting Up and Special Reasons

The totting-up provisions mean that drivers who accumulate 12 or more penalty points within three years will face automatic disqualification, which can have a significant impact on their employment and personal circumstances. In certain situations, the court may choose not to endorse points or disqualify for special reasons, which must be both legally set forth and personally persuasive. The test for a successful special reasons argument is strict, and such an argument needs to be prepared and presented by a solicitor with experience in such arguments. An ill-prepared special reasons application is worse than no application at all.

Disqualification and Exceptional Hardship

Where disqualification following a totting-up is otherwise inevitable, an exceptional hardship argument may enable the court to exercise its discretion not to disqualify. The legal test is that there must be genuine and serious hardship in addition to the normal hardship that accompanies the loss of a driving licence, and that the evidence in support of the argument must be specific, credible and well presented. The technical aspects of exceptional hardship applications are often underestimated, and the key to whether the application will be successful lies in the preparation and experience of the solicitor presenting the application. 

Choosing a Solicitor Who Understands the Specific Charge

The bottom line of all of this is that good road traffic defence depends upon a solicitor who can be precise and confident about the legal and evidential aspects of the charge that the client is being pursued for. Procedural and technical issues arising in a speeding case are not the same as those in a drink driving case or a dangerous driving case. A solicitor chosen by virtue of their particular expertise in road traffic law, and whose experience includes the specific type of charge at issue, is likely to be best placed to spot and develop the points that count – and to advise candidly that the realistic focus should be on mitigation rather than challenge.