2 year drink driving ban

Goodguy7 · 25-10-2018 04:07AM #1

Hi was wondering do any of ye know if you can appeal a drink driving ban after serving half the sentence, I got 2 years. I heard that you have to do 2/3rds which would be 18 months. Can anybody shed some light on this please.
Thanks

GM228 · 25-10-2018 06:32AM

Goodguy7 wrote: »

Hi was wondering do any of ye know if you can appeal a drink driving ban after serving half the sentence, I got 2 years. I heard that you have to do 2/3rds which would be 18 months. Can anybody shed some light on this please.
Thanks

You have to do half the disqualification before applying, not two thirds. However it relates to a disqualification order of more than 2 years and also note it must be the only such order made in the previous 10 years.

You also are required to give notice to the Garda Superintendent in the district where you live 2 weeks before applying to the court.

Goodguy7 · 25-10-2018 06:48AM

GM228 wrote: »

You have to do half the disqualification before applying, not two thirds. However it relates to a disqualification order of more than 2 years and also note it must be the only such order made in the previous 10 years.

You also are required to give notice to the Garda Superintendent in the district where you live 2 weeks before applying to the court.

Thanks for getting back to me so promptly, so I can’t apply then because I got two years am I right in saying that.

GM228 · 25-10-2018 07:31AM

Goodguy7 wrote: »

Thanks for getting back to me so promptly, so I can’t apply then because I got two years am I right in saying that.

Correct, you can only apply if the disqualification is for more than 2 years and the minimum time which must be served is 2 years anyway before a licence can be restored.

The reality is you must have at least a 3 year ban before an early restoration is an option.

Goodguy7 · 25-10-2018 07:35AM

GM228 wrote: »

Correct, you can only apply if the disqualification is for more than 2 years and the minimum time which must be served is 2 years anyway before a licence can be restored.[/quote

Would a judge or have you ever come across a judge restore a license due to a persons circumstances

GM228 · 25-10-2018 07:51AM

Goodguy7 wrote: »

Would a judge or have you ever come across a judge restore a license due to a persons circumstances

Generally not, licences can be restored in rare circumstances for "special reasons", but such reasons usually surround the nature of the offence as opposed to personal reasons such as for example work related hardships caused by the loss of the ability to drive to/from or for work, the courts have held that such reasons are rarely if ever a special reason.

Peregrinus · 25-10-2018 07:54AM

Goodguy7 wrote: »

GM228 wrote: »

Correct, you can only apply if the disqualification is for more than 2 years and the minimum time which must be served is 2 years anyway before a licence can be restored.[/quote

Would a judge or have you ever come across a judge restore a license due to a persons circumstances

Yes, but only where they have power to do so. And they only have power to do so where the disqualification period is more than two years, and at least 50% of has already been served.

If what you have is a two-year disqualification, a judge has no power to reduce that.

Try_harder · 25-10-2018 07:58AM

You could appeal the severity of the sentence. You would now need an entension of time to appeal first as you are outside the 14 day limit to appeal regularly. Talk with your legal advisor

Goodguy7 · 25-10-2018 08:08AM

Peregrinus wrote: »

Goodguy7 wrote: »

Yes, but only where they have power to do so. And they only have power to do so where the disqualification period is more than two years, and at least 50% of has already been served.

If what you have is a two-year disqualification, a judge has no power to reduce that.

Thanks for the advice lads really much appreciated really cleared the whole thing up for me. Was going to contact a solicitor as I was close to to year mark just will have let the two years run it’s coarse. The thing that gets to me though is a person who is 10 times over the limit has more of a right to appeal rather than a person who was 1 & 1/2 times over and caught the morning after going to work.

Goodguy7 · 25-10-2018 08:13AM

Try_harder wrote: »

You could appeal the severity of the sentence. You would now need an entension of time to appeal first as you are outside the 14 day limit to appeal regularly. Talk with your legal advisor

Is this really possible would a judge listen to an appeal this way. The other guys were saying the judge dosent have the power to overturn a 2 year disqualifation.

Try_harder · 25-10-2018 08:15AM

Goodguy7 wrote: »

Is this really possible would a judge listen to an appeal this way. The other guys were saying the judge dosent have the power to overturn a 2 year disqualifation.

They were talking about an early restoration. Im talking about an appeal!

Goodguy7 · 25-10-2018 08:22AM

Try_harder wrote: »

They were talking about an early restoration. Im talking about an appeal!

But could that type of appeal lead to an early restoration of say 2/3rds of a 2 year disqualification. Sorry now legally I’m blonde ðŸ˜
Thanks for the advice

GM228 · 25-10-2018 08:23AM

Try_harder wrote: »

You could appeal the severity of the sentence. You would now need an entension of time to appeal first as you are outside the 14 day limit to appeal regularly. Talk with your legal advisor

Such extensions are rarely given especially 12 months later.

Also note that depending on the circumstances 2 years is the mandatory statutory minimum for certain disqualifications, assuming that is the case then there is no appeal based on severity possible.

Peregrinus · 25-10-2018 08:24AM

Goodguy7 wrote: »

Is this really possible would a judge listen to an appeal this way. The other guys were saying the judge dosent have the power to overturn a 2 year disqualifation.

There's a difference between:

(a) going back to the court that convicted and sentenced you - presumably the District Court - and asking for a reduction in your disqualification period. As stated, there's no power to reduce a two-year disqualication, so this avenue isn't open to you.

and

(b) appealing your conviction and/or sentence to a higher court - presumably the Circuit Court.

You can argue that the evidence against you doesn't prove your guilt and that you should never have been convicted. If you succeed, not only the disqualification but the entire sentence falls away and you leave the court an innocent man (or woman), without a stain on your character.

Or, you can accept your guilt, but argue that the sentence - and particularly the disqualification - was excessive, given all the circumstances of the offence, the range of sentences handed down for similar offences, etc, etc. Obviously since we don't know what you were convicted of or any of the details there's no way of knowing if such an appeal would have any chance of success. You'd also need to look at whether the offence you were convicted for carries a minimum two-year disqualification, in which case there is no point in appeal on the grounds that the disqualification is too severe.

Also, if you were going to bring such an appeal you would normally have to do so within 14 days of conviction and sentence, and you'll need to seek special permission to appeal at this stage, and offer some explanation as to why you couldn't or didn't appeal within the usual time.

Try_harder · 25-10-2018 08:25AM

GM228 wrote: »

Such extensions are rarely given especially 12 months later.

Also note that depending on the circumstances 2 years is the mandatory statutory minimum for certain disqualifications, assuming that is the case then there is no appeal based on severity possible.

Drink driving didnt have a minimum, even now its from 6 months. Thats why I said talk to a legal advisor

Try_harder · 25-10-2018 08:26AM

Peregrinus wrote: »

He doesn't have the power to reduce a two-year disqualification. But if you successfully appeal your conviction to the Circuit Court, the disqualification - the whole sentence that was imposed on conviction - will fall away automatically as a consequence. You'll be an innocent man (or woman).

But you can't win an appeal against conviction on the basis that "it's really inconvenient for me" or "it's causing me hardship" or even "I've learned my lesson". You can only win on the basis that the evidence doesn't prove your guilt, and that you should never have been convicted in the first place.

You can also appeal the severity of a sentence

GM228 · 25-10-2018 08:29AM

Try_harder wrote: »

Drink driving didnt have a minimum, even now its from 6 months. Thats why I said talk to a legal advisor

Yes it does depending on the reading.

Try_harder · 25-10-2018 08:31AM

GM228 wrote: »

Yes it does depending on the reading.

Thats why I advised talking to a legal rep. They can best advise how to proceed- if at all

Goodguy7 · 25-10-2018 08:40AM

Peregrinus wrote: »

He doesn't have the power to reduce a two-year disqualification. But if you successfully appeal your conviction to the Circuit Court, the disqualification - the whole sentence that was imposed on conviction - will fall away automatically as a consequence. You'll be an innocent man (or woman).

But you can't win an appeal against conviction on the basis that "it's really inconvenient for me" or "it's causing me hardship" or even "I've learned my lesson". You can only win on the basis that the evidence doesn't prove your guilt, and that you should never have been convicted in the first place.

Do ye know of any good legal advisors in Cork my circumstances or as follows the night in question I was driving enroute to my elderly mother who was suffering with cysts at the back of her knees and she couldn’t move she called me to help her get her up the stairs to bed. Now having a 5 month baby and a wife who has post natal depression and not been able to look after them both properly due to living rurally and working in the city hence Not seeing them a week at a time is causing my wife more suffering.

Peregrinus · 25-10-2018 08:55AM

I don't know what you were convicted of, Goodguy, or what the range of sentencing for that offence is. But in general your circumstances today are not relevant to the question of whether the sentence imposed on you a year ago was excessive at the time.

I'm afraid I can't recommend a solicitor in Cork for you; I don't have the local knowledge and, anyway, the forum doesn't allow solicitor recommendations. But you're thinking along the right lines; you've reached the point where you need advice from an experienced practitioner about what might be possible in your case.

Goodguy7 · 25-10-2018 09:09AM

Peregrinus wrote: »

I don't know what you were convicted of, Goodguy, or what the range of sentencing for that offence is. But in general your circumstances today are not relevant to the question of whether the sentence imposed on you a year ago was excessive at the time.

I'm afraid I can't recommend a solicitor in Cork for you; I don't have the local knowledge and, anyway, the forum doesn't allow solicitor recommendations. But you're thinking along the right lines; you've reached the point where you need advice from an experienced practitioner about what might be possible in your case.

52mg of alcohol per 100ml of breath and got two years the guard said in the statement that he though I was going to drive off. Which lies I asked for water at the station they wouldnt give me that so they’ve just got me to the a breathalyzer test straight away so no time given to reim

GM228 · 25-10-2018 09:47AM

Goodguy7 wrote: »

52mg of alcohol per 100ml of breath and got two years the guard said in the statement that he though I was going to drive off. Which lies I asked for water at the station they wouldnt give me that so they’ve just got me to the a breathalyzer test straight away so no time given to reim

52mg of alcohol per 100ml of breath is a mandatory minimum 2 year disqualification, it is simply not possible to appeal the severity as it is set by statute and already at the minimum.

ohnonotgmail · 25-10-2018 10:31AM

Goodguy7 wrote: »

52mg of alcohol per 100ml of breath and got two years the guard said in the statement that he though I was going to drive off. Which lies I asked for water at the station they wouldnt give me that so they’ve just got me to the a breathalyzer test straight away so no time given to reim

They have to wait 20 minutes from the time of arrest before they breathalyze you in the station. They wont let you consume anything in this time. They have no reason to wait beyond this time. I cant make out what the last word in your post is supposed to be.

GM228 · 25-10-2018 11:02AM

ohnonotgmail wrote: »

They have to wait 20 minutes from the time of arrest before they breathalyze you in the station.

They don't have to (though they generally do wait), rather they lawfully can do so under the principles of "reasonable necessity" as per a recommendation from the Medical Bureau of Road Safety which is based on the manufacturer guidlines of the original EC/IR and Intoxilyzr 6000 machines made by Intoximeter and Lion respectively, the newer Evidenzer IRL machines by Nanoplus AB don't have such a guidline in relation to the 20 minutes, however the 20 minutes are still observed as recommended by the MBRS to ensure an accurate test.

The idea behind the observation test is to mitigate againt fresh alcohol in the mouth and any potential hip flask type defence being raised. It is not a legal requirement (just a lawful practice) and failure to observe the period does not in and of itself make the test unlawful.

ohnonotgmail · 25-10-2018 11:11AM

GM228 wrote: »

They don't have to, rather they lawfully can do so under the principles of "reasonable necessity" as per a recommendation from the Medical Bureau of Road Safety which is based on the manufacturer guidlines of the original EC/IR and Intoxilyzr 6000 machines made by Intoximeter and Lion respectively, the newer Evidenzer IRL machines by Nanoplus AB don't have such a guidline in relation to the 20 minutes, however the 20 minutes are still observed as recommended by the MBRS to ensure an accurate test.

The idea behind the observation test is to mitigate againt fresh alcohol in the mouth and any potential hip flask type defence being raised. It is not a legal requirement (just a lawful practice) and failure to observe the period does not in and of itself make the test unlawful.

Maybe have to was a little bit strong.

By the time the transport you to the station, get you booked in, and are ready to do the test it is probably the best part of 20 minutes anyway. Especially given the station they take you to may not necessarily be the local station.

Hespy · 25-10-2018 11:45AM

Goodguy7 wrote: »

....rather than a person who was 1 & 1/2 times over ....

Goodguy7 wrote: »

52mg of alcohol per 100ml of breath ....

Breath limit is 22mg/100ml - 2.36 times the limit.
I'm not having a go, I'm only pointing out this because if you were to appeal and mentioned 1.5 times, it could go against you!

Eric Cartman · 25-10-2018 11:51AM

Hespy wrote: »

Breath limit is 22mg/100ml - 2.36 times the limit.
I'm not having a go, I'm only pointing out this because if you were to appeal and mentioned 1.5 times, it could go against you!

true , but if you look at the garda twitter thread in motors, most who are caught here are regularly at 80-110 in breath, the OP is very much at the lower end of the scale and under the old 0.08 BAC is just over the threshold.

Hespy · 25-10-2018 12:32PM

Eric Cartman wrote: »

true , but if you look at the garda twitter thread in motors, most who are caught here are regularly at 80-110 in breath, the OP is very much at the lower end of the scale and under the old 0.08 BAC is just over the threshold.

Just had a look there - insane! I do feel for people who get done the morning after. Best to get a breathalyzer and keep it in the glove box just incase!
Was at a stag a few weeks ago. Tested myself at 10.30am the following morning and was reading 48 breath (limit 22). Passed the tester around the table. Others were above 50, and a couple of large, heavy drinkers were blowing completely clear! It was 1.30pm before I was blowing safely under 22mg and could head on my way!

Goodguy7 · 25-10-2018 04:19PM

Hespy wrote: »

Just had a look there - insane! I do feel for people who get done the morning after. Best to get a breathalyzer and keep it in the glove box just incase!
Was at a stag a few weeks ago. Tested myself at 10.30am the following morning and was reading 48 breath (limit 22). Passed the tester around the table. Others were above 50, and a couple of large, heavy drinkers were blowing completely clear! It was 1.30pm before I was blowing safely under 22mg and could head on my way!

Sorry guys just woke was on nights last night and I’m just after reading yere threads thanks to ye all for replying I’ll have to seriously think about what to do, a legal advisor might be the right way forward to appeal it

4ensic15 · 25-10-2018 10:09PM

Goodguy7 wrote: »

Sorry guys just woke was on nights last night and I’m just after reading yere threads thanks to ye all for replying I’ll have to seriously think about what to do, a legal advisor might be the right way forward to appeal it

An appeal is only going to do anything if it gets the conviction quashed. That will only happen if you get an extension of time to appeal anyway. It would be months before you even have an appeal hearing in the Circuit Court even if you could get an extension of time. You would be spending a lot of money for a tiny chance of having the conviction overturned and getting back on the road a few months early.

Goodguy7 · 25-10-2018 11:25PM

4ensic15 wrote: »

An appeal is only going to do anything if it gets the conviction quashed. That will only happen if you get an extension of time to appeal anyway. It would be months before you even have an appeal hearing in the Circuit Court even if you could get an extension of time. You would be spending a lot of money for a tiny chance of having the conviction overturned and getting back on the road a few months early.

So would your advice be just to let it run its coarse and not bother appealing then.

2 year drink driving ban

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