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The DVLA’s New View My Driving Licence, & Share my Driving Licence Systems:

Drink Driving Convictions – when are they spent and when must they be removed from a driver’s licence?

Now that the driving licence counterpart has been abolished and the DVLA have confirmed that driving records will only show endorsements for a maximum of five years, what does this mean for employers who want to view the driving licence details of current or prospective new drivers?

Most employers who employ professional drivers are quite rightly concerned about whether their drivers are fit to drive for them, and one basic way of checking this has always been by looking at the driving licence counterpart. However, the old system was flawed with many drivers holding two counterparts: one clean to show to employers and hire companies etc., and one with endorsements on it. At least with this new online system there should be fewer opportunities for unscrupulous drivers to fool their employers: But, with convictions such as drink driving which could previously be visible on a licence for 11 years now only being visible for five, what impact will this have?

 

The Law

In order to understand the situation, we have to look at the law. This is set out in the Rehabilitation of Offenders Act 1974 and the Road Traffic Offenders Act 1998.

Unfortunately there is a conflict between the legislation regarding drink driving and that with regard to the rehabilitation of offenders. Unfortunately whether an endorsement is “Spent” and whether it remains on an individual’s driving record are two different things.

How endorsements are treated depend on what offences they relate to. Eg. some offences which are endorsable are not treated as convictions: Therefore this article deals only with typical drink driving type offences (which are convictions).

 

When is a Drink Driving Conviction Spent?

As you may know, the Legal Aid, Sentencing and Rehabilitation of Offenders Act 2012 which came into effect in March last year, made significant changes to when certain convictions are deemed to be spent. However, the Act made no changes to the rehabilitation for most motoring offences[1] including drink driving, which means that the Rehabilitation of Offenders Act 1974 still applies.

The 1974 Act states that the rehabilitation period applicable to fines or any other sentence not specifically covered in the Act is 5 years from the date of conviction. This therefore applies to drink driving so after 5 years a drink driving conviction will be Spent unless a sentence other than a financial penalty is imposed.

 

What about the Driving Record?

The Road Traffic & Offenders Act 1988 deals with driving records (now that counterparts have been abolished) and s.45A (which came into force on 8 June 2015) states that:

An order that any particulars or penalty points are to be endorsed on a person’s driving record shall operate as an order that his driving record is to be so endorsed until the end of the period for which the endorsement remains effective.[2]

And that:

At the end of the period for which the endorsement remains effective the Secretary of State must remove the endorsement from the person’s driving record.[3]

Specifically with regard to drink driving (and drugs) offences it states:

“Where the offence was one–

(a) under s.3A, 4(1) or 5A(1)(a) and 2 of that Act (driving offences connected with drink or drugs),

the endorsement remains effective until eleven years have elapsed since the conviction.”[4]

Therefore this suggests that the endorsement should only be removed after it becomes effective ie. 11 years. However, after five years it doesn’t have to be disclosed to an employer or to an insurance company.

The DVLA have confirmed that they would hold the records for the effective period as allowed by the Road Traffic Offenders Act. However, when the “share my licence” system is used, only the convictions which are not Spent will be visible. This means that it’s possible for a driver to have had a drink drive conviction say, 6 years ago, which will not be visible to the employer.

The reason the DVLA have to keep the records for eleven years, is because the minimum penalty increases for anyone convicted of more than one similar offences within 10 years.

 

What will be the impact on Insurance?

The change is unlikely to impact on insurance policies. There is no requirement to disclose Spent convictions to insurance companies. Therefore they can’t refuse to indemnify employers for failing to disclose a Spent conviction such as a 6 year old drink drive conviction. Obviously if a driver were still disqualified, the conviction would not be Spent and would be visible on his record. Hopefully this will set minds at rest.

It does however appear that some employers have policies which meant they won’t employ anyone who has been convicted of drink driving. However, employers who have such a policy need to be careful. It’s generally not allowed to discriminate against anyone on the basis they have a Spent conviction and there is case law on this. The whole idea of the rehabilitation period is that once it’s over, it’s as if the person never had the conviction.

In summary, it appears that the new system is nothing to be afraid of and is in theory, a good thing. It should be more accurate than a piece of paper and gives real time information. However the DVLA must make sure the system’s always available and make it easier for employers to access their drivers’ records. The current system which relies on drivers to obtain a code from DVLA before their details can be shared seems unnecessarily long winded, particularly when you bear in mind the fact that many drivers are far from computer literate. Surely a downloadable permission slip to be signed by the driver and kept on file would be just as effective and far easier to deal with.

If you have any questions about Drink Driving Convictions, call 0330 1330 081.

 

[1] S.3 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order 2014/423

[2] s.45A(1) – s.45A in force since 8 June 2015

[3] s.45A(2)

[4] s.45A(2)(5)

 

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