Magistrates Court Guide
Guide to appearing at magistrates court for drink driving offences
If so, you are likely to be similar to a lot of people charged with a drink driving related offence in that it could be your first appearance at a criminal court. It can be quite a nerve racking and daunting experience to say the least!
You will no doubt have many questions racing through your mind such as:
What will happen? What sentence will I get? Do I need a solicitor? What will happen on the day? How long will it take? Do I need to appear in person? Will I have to speak in court? Will my conviction appear in the newspapers?
We have compiled this helpful guide to answer some of these questions and help put your mind at ease a little.
First of all, we will answer a very common question a lot of people ask which is 'do I need to attend court in person?'
The answer is yes you do have to appear at court in person! You are being charged with a criminal offence which carries a minimum mandatory driving disqualification of at least 12 months. Failure to attend court for your hearing may see a warrant issued for your arrest and further charges being brought against you.
You should ensure that you know exactly where the magistrates court is and how to get there. The last thing you want to do is turn up late!
Instructing a solicitor
We always recommend you seek expert legal advice. Consulting with an experienced motoring solicitor will be beneficial even if you ultimately decide not to hire/instruct a solicitor to act on your behalf and represent you in a court of law. Criminal law is very technical and a criminal defence motoring solicitor will be able to examine all evidence and case notes to ensure correct statutory procedure has been followed at all times.
Consulting with a solicitor should be done well in advance of the date of your court hearing so that both you and your solicitor can be as well prepared as possible. Our drink driving solicitors directory lists law firms throughout England, Ireland, Scotland and Wales that deal with drink driving cases. You can also get FREE legal advice from a solicitor via our online forum.
You may be entitled to legal aid which can cover the whole cost of instructing/hiring a solicitor. In order to qualify for legal aid you must pass the interests of justice test and the financial means test.
Financial Means Test
An initial financial means test will be carried out that examines your gross annual income and takes into account your family circumstances. If you are on a low income below the lowest threshold you will pass the financial means test. If you have an income above the the maximum threshold you will fail the financial means test. If your income is in-between the lowest threshold and the highest threshold a more thorough and full financial means test will be carried out to determine your eligibility, a full financial means test will examine income as well as outgoings in order to determine your disposable income.
More information on the financial means test including relevant annual income thresholds can be viewed here.
If you are on state benefits it is likely you will pass the financial means test and may automatically qualify for legal aid.
Interests of Justice Test
In addition to the financial means test there is also a test of merit aka 'The Interests of Justice Test' that is applied to your specific case and circumstances. You are likely to pass the interests of justice test if:
- it is likely you will receive a custodial sentence and go to prison as a result of being convicted
- it is likely you will lose your job/livelihood as a result of being convicted
- it is likely that your reputation will be greatly damaged as a result of being convicted
- you will have substantial difficulties following the court proceedings due to language barriers or mental health problems
For more information and a full list of possible eligibility criteria of the 'merit' test please see the link below.
A legal aid accredited solicitor will advise you if your particular case is likely to pass the Interests of Justice 'merit' test and the financial means test. A legal aid solicitor can also make an application for legal aid to the Legal Services Commission (LSC) on your behalf.
LEGAL AID IN ENGLAND AND WALES
The LAA - Legal Aid Agency run the legal aid system in England and Wales.
Online Legal Aid Financial Eligibility Calculator (ENGLAND AND WALES)
LEGAL AID IN SCOTLAND
The SLAB - Scottish Legal Aid Board run the legal aid system in Scotland.
Online Legal Aid Financial Eligibility Calculator (SCOTLAND)
LEGAL AID IN NORTHERN IRELAND
The Legal Services Agency Northern Ireland run the legal aid system in Northern Ireland.
Legal Services Agency Northern Ireland (NORTHERN IRELAND)
Paying a solicitor privately & reimbursement of legal costs if acquitted
If a defendant is not legally aided and pays a solicitor on a private basis for legal representation in a magistrates court and the defendant is subsequently acquitted of some or all of the charges then the defendant is usually entitled to have their reasonable legal costs reimbursed out of central funds. A defendant's cost order may also be made following a successful appeal against conviction and/or sentence. Your solicitor will be able to advise you further.
Instructing a solicitor if you intend to plead guilty
Solicitors are not only hired/instructed by defendants who plead 'not guilty'. They are also hired and are very useful to defendants pleading 'guilty'. They have spent many years training and studying the law. Many have extensive experience of practicing the law behind them too. They know the criminal justice system and the magistrate court procedures inside and out. At the very least a solicitor will be able to put forward a well structured plea of mitigation on your behalf in order to help secure a lenient sentence.
Plea of mitigation
A plea of mitigation is basically a plea to the court for a lenient sentence based on various factors such as genuine remorse, no previous criminal convictions, a clean driving licence and any inadvertent circumstances which may have lead to the alleged offence. A well constructed plea of mitigation can really make a difference to what sentence a person receives and the period of disqualification imposed.
Of course, you could always put forward a plea of mitigation yourself without hiring a solicitor, however most people will not be confident in doing so and what a person thinks is a mitigating factor may actually be classed as an aggravating factor by the magistrates. Another option which may not be so effective is to write a letter to the judge pleading leniency.
Court Duty Solicitors
Court duty solicitors are only under obligation to provide legal assistance to people who are facing a possible prison sentence or to those who are already in custody. This means anyone charged with an alcohol related driving offence that does not carry a possible custodial sentence should definitely not rely on the services of the duty solicitor. If you are unsure if the offence you are charged with carries a possible prison sentence then you can find out by taking a look at the Magistrates Sentencing Guidelines.
While court duty solicitors are only obligated to provide legal assistance to people facing a possible prison sentence or those already in custody, many do provide legal assistance to people under other circumstances.
A court duty solicitor is able to offer free legal advice and representation to people on their first appearance at court for a particular offence only, regardless of their financial circumstances.
All magistrates courts run a duty solicitor scheme, however, depending on how busy a particular court is, a court may run either a duty solicitor attendance scheme or a duty solicitor call-in scheme.
Duty solicitor attendance schemes should see at least one dedicated duty solicitor in attendance at court who is readily available. The advantage of the attendance scheme is that more defendants are likely to receive assistance when needed.
Duty solicitor call-in schemes on the other hand see courts contacting duty solicitors on an 'as and when' basis. The courts running call-in schemes will either have to call in a duty solicitor from their office when required or alternatively if a duty solicitor is present in court dealing with one of their own private cases, they will be asked if they are willing and able to assist any defendant requiring their assistance.
In any event, the time a duty solicitor can spend dealing with your case may be limited and will be largely determined by their workload and commitments for the day.
Duty solicitors are unable to assist anyone appearing at court for a trial.
While the duty solicitor scheme can be a great service for defendants that cannot afford to hire/instruct their own solicitor and those that don't qualify for legal aid, it is a basic service only.
If you wish to use the services of a duty solicitor you should arrive at the court early and inform court staff.
If you would like to enquire about the duty solicitor scheme and availability at a particular court then you can contact the court directly.
The day of your court case
The day you must appear at the magistrates court will finally arrive. You should always dress smartly when you appear at a magistrates court. This will show that you respect the magistrates and that you are taking the matter seriously. You should dress like you would if you were going for an interview for an important job. Take all paper work with you and your driving licence.
Arrive on time and confirm your arrival
Make sure that you arrive in plenty of time, 15 to 20 minutes before the time stated on your paperwork will be sufficient, unless your solicitor has asked you to go early for a brief meeting before your court case. When you arrive at the magistrates court you will need to report to the courts reception and/or the court usher. The court usher will be wearing a black robe and will more than likely be carrying a clipboard with all the names of the people appearing in court on that day. There should also be a notice board with a list of people appearing in court on that day and which courtroom they will be appearing in.
Wait for your court case to be heard
After you have confirmed your arrival with the courts, you will be advised on where to wait. It is then a matter of waiting until you are called by the usher into the courtroom in order to have your case heard. It is a good idea not to venture too far away from this area as you can be called into court at any time. If you smoke, you will have to go outside for a cigarette as all court buildings are non smoking. You should always time going outside to coincide with when someone has just been called into the courtroom you are due to appear in. This should give you at least five minutes or so without the worry of your name being called. Magistrates do not take kindly to defendants who are not available when called. All courts will have WC facilities and a lot will have refreshments available to purchase.
It is impossible to say how long you will have to wait. You could be the first to be called into the courtroom or the last. Once the days court proceedings have begun, your solicitor (if you have one) may be able to give you an idea of when your case is likely to be heard.
Lunch break if case not heard beforehand
The court will usually break at 1pm for lunch for approximately an hour. If your case has not been heard before this, you will be permitted to leave the court and will be told a time at which you will be expected to return.
Entering the Courtroom
When your case is ready to be heard your name will be called out by the usher and you will be escorted into the courtroom. In the courtroom itself there will usually be three magistrates (sometimes only two) sitting at the front on a raised platform. In front of the magistrates will be the court clerk (legal advisor). Their job is to advise the magistrates on all aspects and technicalities of the law, they are not involved in deciding the outcome of any case, only to advise the magistrates on what the law states. All other people will be sat facing the magistrates and the court clerk. There will also be a section of the court which seats the general public including anyone who may have accompanied you to court and usually the press. The press usually consist of one or two reporter's from the local newspapers, it is likely your case will appear in the newspaper.
Confirm name & address and enter your plea
Once you have been ushered into the court and you have taken your place standing before the magistrates, the court proceedings will commence. You will be asked to confirm your name and address by the court clerk before any charge(s) against you are read out. You will then be asked if you plead guilty or not guilty. If you enter a plea of 'not guilty' to any of the charges against you then the court case will be adjourned until a later date. If you are facing multiple charges then any charge(s) to which you have pleaded guilty to will be dealt with once your trial has taken place and a verdict has been reached.
If you plead 'guilty' to the charge(s) then you will be told to sit down and the prosecution will begin. The prosecution solicitor will put forward the case against you including all statements and evidence collected by the police. Once the prosecution has finished it will be the turn of the defence (that will be you and/or your solicitor). This is your turn to put forward an explanation of what happened, why it happened and any other relevant information such as any and all mitigating circumstances. If you have a solicitor then you just sit and let him/her do their job. If you do not, it will be up to you to tell the magistrates any information which you would like to put forward.
Once the prosecution and defence have both put forward their case, the court clerk will ask the magistrates if they are aware of any previous convictions. If you have any previous convictions, they will be disclosed to the magistrates, as will details of your financial circumstances (you will have been asked to fill out a financial means form prior to your appearance). The magistrates will then discuss matters between themselves and may take further advice from the court clerk if needed. Once this is done they may sentence you straight away, more often is the case that the court will be asked to rise (everyone must stand up) and the magistrates will retire to discuss the matter in private and decide on how to proceed and what sentence to impose. This will usually take between 5 - 10 minutes, but may take longer.
The Magistrates Decision
Once the Magistrates have decided how to proceed, the court will be asked to rise again while they re-enter the courtroom. Everyone else will sit down when the magistrates have taken their place at the bench, the defendant (you), must remain standing. They will either hand you your sentence there and then, or they may decide to adjourn the case for a pre-sentence report.
Pre-sentence Reports and Interim Driving Bans
If the magistrates decide to adjourn the case for pre-sentence reports, you will be told to report to the probation officer and make an appointment to visit the probation office in order for the pre-sentence report to be compiled. You will be asked to do this as soon as you leave the courtroom. You will then have to keep the appointment with the probation officer and will have to attend court again at a later date to be sentenced.
The magistrates will usually tell you what sentence they are considering imposing on you and a date you must return to court. They will usually impose an interim driving ban. An interim driving ban means you are effectively banned from driving from that moment on and any driving ban you later receive will run from the date the interim driving ban was imposed.
If they decide to sentence you there and then, you will usually be handed a minimum of a 12 month driving ban and you will be asked to surrender your driving licence to the court if you have not already done so. You will be told if you are to be given the opportunity to partake and complete the drink driving rehabilitation course (which can reduce any period of disqualification imposed by up to 25% once completed), you will then be handed the rest of your sentence.
Sentences for offenders that have been charged with driving whilst over the legal prescribed maximum blood alcohol content limit are largely dependant on the level of alcohol they had in their system at the time of the offence as well as several other factors including:
- the degree of risk and harm they posed to members of the public
- previous convictions (especially alcohol related driving offences)
- any mitigating or aggravating factors surrounding each individual case
Sentences for drink driving related offences can range from a fine, to a community order and in serious cases, imprisonment. This will be in addition to any driving disqualification imposed. For more information on sentences imposed for drink driving related offences please see the magistrates court sentencing guidelines.
You are also likely to be required to make a contribution towards court costs.
If you are sentenced to a fine and a driving ban only, then you will be free to go.
If you are sentenced to a community order, you will be instructed to see the probation officer as soon as you leave the court in order to make necessary arrangements and appointments for your community order to be carried out.
If you are sentenced to a prison sentence that is not suspended, then you will be escorted from the court to a holding cell for subsequent transportation to prison.
Requirement to re-take driving test
The magistrates court has the power and discretion to disqualify any person until a driving test is passed if they are convicted of any endorsable offence. For offences where disqualification is obligatory such as driving with excess alcohol then the extended driving test will apply.
It is entirely at the discretion of the sentencing court as to whether or not a convicted drink driver will have to re-sit their driving test.
The discretion to order a person to re-take their driving test is likely to be exercised where there is evidence of inexperience, incompetence or infirmity, or the disqualification period is lengthy (i.e. a number of years).
Magistrates will usually require any fine imposed to be paid in full on the day. However, periodic payments can be allowed as long as any fines are paid within 12 months. The maximum weekly payment for those on state benefits should rarely exceed £5.00. Calculation of fines.
Depending on the charge(s) against you, previous convictions or the level of alcohol in your blood at the time of the offence, you may also be required to pass a DVLA drink driving medical before your driving licence will be returned once your driving ban has expired. If this is the case then you will receive correspondence from the DVLA shortly after you have been convicted.
Driving Licence Endorsement & Rehabilitation Periods
A drink driving endorsement (DR10) will stay on your driving licence for 11 years from the date of conviction.
A criminal conviction for drink driving will be disclosable for a period of time stated by The Rehabilitation of Offenders Act 1974, the length of time before the conviction will become 'spent' under the ROA 1974 will usually be 5 years (the rehabilitation period for driving endorsements) unless a prison sentence of more than 30 months is imposed.
Appealing Against Conviction and/or Sentence
You have the right to appeal against the sentence and/or the conviction itself if you think it is too severe or you were unfairly convicted. Your solicitor (if you have one) will advise you on this matter further. You must lodge any appeal within 21 days of your hearing. Bear in mind that the court to which you appeal have the power to increase your original sentence as well as decrease it.