Totting Up Ban / 12 Penalty Points

What is the definition of totting up?

Totting up is the accumulation of 12 or more than 12 penalty points for driving offences committed within the same 3 year period, which would normally lead to a licence disqualification of at least 6 months.

How does the totting up procedure work?

Any driver who commits an offence that would potentially result in them reaching 12 penalty points within 3 years of the offences, will be referred to Court to decide whether a 6 month driving disqualification should be imposed. 

Although a totting up ban is recommended for reaching 12 points, it can be avoided in certain circumstances. The driver will need to attend Court in person so that the Justices can consider the appropriate penalty.

How do I avoid a totting up ban?

Any driver reaching 12 penalty points and facing a totting up ban can present an exceptional hardship submission, which, if accepted, will prevent a ban. To succeed, you will need to satisfy the Court that your reliance upon the licence is so significant, that a ban would go so far beyond inconvenience, that it would be practically impossible to cope with.

What is exceptional hardship?

There is no specific legal definition. Exceptional hardship will vary according to the circumstances of the Defendant who will be expected to establish the loss of a driving licence, would go far beyond the inconvenience that would normally be anticipated. The Court will automatically assume that any suspension will result in hardship and will emphasise that is the purpose of a disqualification.

You need to show that your reliance upon the licence is so great, that it would be nigh on impossible to cope with a ban, i.e., the hardship caused would be “exceptional”.

An exceptional hardship submission does not have to be limited to the licence holder. A ban can potentially be avoided if it can be demonstrated that other parties, who are reliant upon the Defendant to drive, would be adversely affected and unable to overcome the adverse implications that would arise should the Defendant be banned. It therefore makes sense for all aspects of the exceptional hardship case to be considered. Even if you feel that you personally can cope, it may be that the implications for others would avoid a ban regardless of whether you can get by personally.

What if I can show I will lose my job as a result of a driving ban?

The Court will consider this issue, but loss of employment alone is not normally sufficient as most courts will point out, the Defendant would have undoubtedly been aware of the effect that a ban would have on employment before the offence was committed. That said, loss of employment can be used to develop further themes, which combined, can prevent a ban.

Is my exceptional hardship case strong enough?

If you face a totting up ban, your exceptional hardship submission must be thoroughly prepared to have any chance of success. If you simply attend Court and indicate that you will lose your job, you should expect to be disqualified. It is essential that your case is not only properly prepared but does not give the Magistrates the option to conclude that there are alternative solutions or the effect of the ban would not be so bad that you cannot cope. The standard imposed can be quite high, so it is essential that all issues are correctly addressed.

With the correct guidance and support, it is quite feasible that your case will be much stronger as there will undoubtedly be issues that can be used that you had not considered.

If you are not sure whether you can meet the criteria for exceptional hardship, We can review and provide initial guidance under a no obligation, fixed fee, Summary Telephone Advice service.

You would only be able to use the arguments again, if more than 3 years has expired since the previous hearing. Otherwise, you would have to rely upon new reasons for your exceptional hardship case.

How long does a totting up ban last for?

The recommended mandatory period of disqualification for a totting up ban is 6 months. Some Courts do exercise discretion if there are particularly unusual circumstances but in theory, if you reach 12 points and cannot convince the Court that you should be allowed to keep your licence, you are off the road for 6 months.

Can a totting up disqualification be longer than 6 months?

Yes. The rules state that a disqualification should be for “at least” 6 months. It is extremely unlikely the Court will feel the need to go beyond the minimum duration, although if you have faced a previous totting up disqualification within 3 years, and accumulated 12 or more points again, the minimum disqualification is 12 months, if your exceptional hardship submission is unsuccessful.

Am I at risk of totting up?

Your risk of a totting up disqualification will depend upon the number of points on your licence at the time the offence was committed, the type of offence alleged and the severity of the incident. All motoring offences carry penalty points but for some offences the endorsement is fixed where as for others, there is a range of points. For example, if you had 3 penalty points, but were prosecuted for driving without due care and attention (which carries between 3 and 9 points) you would face a totting up ban if the maximum penalty was imposed. However, if you had 8 points already, but were prosecuted for failing to comply with a red traffic light, which carries a penalty point endorsement fixed at 3 points, you would not be at risk of a totting up ban. If you have 9 penalty points, any offence committed will trigger a potential totting up ban.

If there is a range of points for the offence committed, you can potentially minimise the number of points subject to the circumstance of the offence and the mitigation presented. The mere fact that the maximum punishment would trigger totting up, does not mean that you will automatically receive the maximum number of points. If you have been given the option to plead guilty by post / online, tactically, it makes sense to use that as an option to minimise the penalty and if successful, you will not face totting up. If your letter is rejected, a hearing date will be allocated for you to attend, at which you can again mitigate the number of points, or if necessary, present an exceptional hardship submission to avoid a totting up ban, should the penalty reach a total of 12 or more points.

How long do penalty points/offences remain on my driving licence?

Points are valid for 3 years from the date of the offence but cannot be removed from your licence until their fourth anniversary. If you amass 12 penalty points in any 3 year period, you face a totting up disqualification.

Some of my points expire before my Court appearance. Will I still face a totting up ban?

Yes. The Court will consider the number of points that you had at the time of the offence. Even if points expire before the Court hearing, they will be relevant if they were valid on the day the offence was committed.

My points were due to expire shortly after the most recent offence was committed. Will the Court take this into account?

In theory, no. However, if the appropriate exceptional hardship submission is put forward, most Courts will take on board the dates of the offences when considering whether to exercise discretion. The Court needs to consider the complete history as well as the implications. What emphasis the Court puts on that information is entirely discretionary.

Can I be banned from driving under the Fixed Penalty Notice System?

If the number of points imposed by a Fixed Penalty will take you to 12 or more, you will not be able to resolve matters via the Fixed Penalty Process. Even if you attempt to accept a Fixed Penalty, the conditional offer will be withdrawn and your case referred to Court.

Why have I received a Fixed Penalty Notice if I cannot accept it?

The Fixed Penalty Notice is issued by a Process Section. At that stage, no check is carried out to clarify the number of points on your driving licence. That check is only undertaken if you attempt to accept a Fixed Penalty. If it is then apparent that acceptance will trigger totting up, the offer will be withdrawn and the case referred to Court.

What happens if I am at risk of totting up, but accept the Fixed Penalty Notice anyway?

In theory, the staff in the Process Section should spot that you do not meet the criteria, reject your acceptance and refer the case to Court. In those circumstances, both your payment and your licence should be returned. However, in the unlikely event that the Process Unit fail to appreciate that you do not meet the criteria and process your acceptance, your licence will be returned with the additional points added, taking you to a total of 12 or more. 

Consequently, as a totting up ban can only be applied by the Court, not the Process Unit, but no disqualification has been imposed by the Court, you are entitled to continue driving. However, if it is still possible that when the DVLA are advised of the penalty, they will notify the Police of the Process Unit who will then refer matters to Court.

Can I appeal a totting up ban?

Yes. If your exceptional hardship submission is rejected in the Magistrates’ Court, you have 21 days from the date of the hearing to lodge an appeal to the Crown Court. You can also apply for your licence to be reinstated so you can continue driving even though on 12 points, whilst the appeal date is awaited.

What are the rules for new drivers?

Although new drivers would still be subject to a totting up ban when reaching 12 penalty points, additionally the licence is also revoked for reaching 6 penalty points within the first 2 years of passing the driving test. Consequently, in extreme circumstances, a new driver could both be banned under the totting up system and have their licence revoked, meaning that once the ban is served, they would still have to take the test again.