January 30, 2025
Driver Who Fell Asleep at the Wheel Keeps Driving Licence in Careless Driving Case
What is the Offence of Driving Whilst Using a Mobile Phone?
It has long been an offence to use a mobile phone whilst driving, contrary to regulation 110(1) Road Vehicles (Construction and Use) Regulations 1986. Originally, however, the offence would only be committed when the phone was being used as a communication device. The Government recognised that mobile phones have change beyond recognition since the offence was first created (how many people still use a brick phone?) and changed the law in 2022 to tighten this offence up. The definition of using a mobile phone was expanded to cover various interactions with device, including the following: illuminating the screen, checking the time, checking notifications, unlocking the device, texting… and the list goes on.
The offence doesn’t just relate to mobile phones. It covers any hand-held device capable of transmitting and receiving data, whether or not those capabilities are enabled (two-way radios are excluded).
The offence carries a fine and 6 penalty points.
What is a Totting Disqualification?
A person who ‘tots’ up to 12 or more penalty points on their driving licence for offences committed within 3 years of each other must be disqualified for a minimum period of 6 months under section 35(1) Road Traffic Offenders Act 1988. The law allows for a very limited exception to this rule, which is commonly known as exceptional hardship.
The court may not disqualify if it is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction. It can instead disqualify a driver for a shorter period, or not at all. There are strict limitations to this. The circumstances cannot relate to the seriousness of the offence, no account can be taken of hardship unless it is exceptional hardship, and the same circumstances cannot be relied upon again within 3 years of the conviction.
What Was MS’s Case About?
MS was stopped by Dorset Police for using his mobile phone whilst driving in July 2023. In September 2023 he was stopped again, this time by Hampshire Police for driving whilst using his mobile phone.
Although the offences were committed within two months of each other, there was a huge delay in the courts dealing with each of these cases and they were processed completely separately by the different court areas. In July 2024 MS went before Aldershot Magistrates’ Court when he pleaded guilty to the mobile phone offence from September 2023. He was given 6 points. As he already had 6 points on his licence for a different offence, he was due to be disqualified for totting up 12 points. However, he successfully argued that a driving disqualification would cause him exceptional hardship because of his childcare arrangements and employees who were dependent on him having his driving licence.
The Dorset case for the mobile phone offence was not dealt with until March 2025, some eight months after the proceedings in Aldershot. MS pleaded guilty and the case was adjourned for an exceptional hardship hearing. At this point MS instructed Kevin Hill from Hill Twine Solicitors & Barristers to represent him on a privately paying basis.
How Did Hill Twine Solicitors & Barristers Deal with the Motoring Offence Proceedings?
Kevin Hill met with MS to learn more about him and how he was in this situation. Kevin obtained the prosecution papers and court records from the two different Court areas to have a clear picture of what had happened in each case.
Kevin advised MS that he could not put forward the same exceptional hardship argument again as it was within 3 years of the conviction in Hampshire. However, Kevin’s experience and expertise in defending road traffic proceedings led to him finding another way to tackle his client’s problem. The client’s goal was to avoid disqualification.
Many people, including other lawyers, incorrectly understand that the only argument in a case of totting is exceptional hardship. However, the proper legal test is whether there are exceptional circumstances not to disqualify, and one of those exceptional circumstances could be exceptional hardship being caused.
In June 2025, MS appeared before Poole Magistrates’ Court for the hearing to decide whether he should be disqualified. Kevin put forward an argument to the District Judge that there were mitigating circumstances not to disqualify based on the delay in the proceedings, the unfortunate chronology of events, and that the cases in two different areas were never tied together to be dealt with by one court. He essentially argued that the Criminal Justice System was at fault for the delay; the inefficiencies meant one court did not know what the other court was doing. He argued that, had the cases been tied together and handled efficiently, MS would have been dealt with for both offences at the same. Kevin submitted that in those circumstances the court would inevitably have found exceptional hardship for both offences and not disqualified MS. He argued that the client should not be prejudiced now by the law not allowing him to put forward the same exceptional hardship in three years, because the system was at fault.
Kevin argued the client should not be prejudiced now by the law not allowing him to put forward the same exceptional hardship in three years, because the system was at fault
This was a very unusual argument, but Kevin persuaded the District Judge that the delay and inefficiency could amount to a mitigating circumstance not to disqualify for totting up. Kevin skilfully outlined this complex area of law to ensure that mitigating circumstances and exceptional hardship were not conflated.
Kevin did not call his client to give evidence; he dealt with the matter on legal submissions alone. The District Judge agreed with the argument and did not disqualify MS. He imposed 6 additional points so that he now has 18 points on his driving licence, but can continue to drive. MS was also given a fine and ordered to pay prosecution costs and the surcharge.
This was an exceptional outcome argued on an unusual point of law. Kevin Hill is a highly experienced Criminal Defence lawyer and a driving law expert. Moreover, he is a skilled advocate who was able to persuasively argue for an exceptional outcome in a challenging road traffic case.
If you would like to instruct Hill Twine Solicitors & Barristers to deal with your motoring offence, please contact us now. You can read more about our work in this area of law on our Motoring Offences page.
Read more about our success in motoring cases here, or visit our Motoring Offences page to learn more:
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Client Avoids Driving Disqualification for Speeding at 91mph in a 60mph Zone
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If you have any questions or need advice