Hi I am looking for some advice for my hubby. He has received a summons to attend court in person for some tachgraph infringements. x2 for failing to take adequate breaks (2mins over the 4.5hrs), pulling the card out when he reached the depot (private land) as he has been advised to do if running out of time and creating a false record, his employer advise that the false record is because he pulled his card and 1 offence of failing to hand in a print out after x amount of days.
On the summons the date of the offence is incorrect as he was not driving that vehicle on the date listed. He now does not know whether he should plead not guilty on the grounds of the wrong date or plead guilty but advise the court the date of the offence is incorrect. He had been told that if he pleads not guilty the case could be thrown out because the date is wrong, however i think they are allowed to just amend the date in court.
Also if he did plead not guilty on these grounds would the case then go to trial or would it be dealt with on the day. He has never been to court for anything before and doesn’t know how to go on. We can’t afford a solicitor. Anyone that has been before if you could let us know the full process would be greatly appreciated. It’s a magistrates court he has to attend.
Also if he does plead guilty can anyone advise on what to say in mitigation, there are some factors such as he’s been told to pull the card once he’s on private land and he’s never been told that he has to hand in printouts he just kept it for 28 days then got rid. also in terms of the breach of breaks he got stuck in bad traffic but this has not been accepted obviously.
There’s a lawyer in Manchester who’s made a bloody good living out of finding mistakes in paperwork and procedures to get high profile clients off traffic offences. Go get legal advice but I reckon pleading not guilty and when its brought up in court starting he wasn’t driving the vehicle on that day gives him a good chance it’ll be thrown out. But I’m no lawyer so like I say go get legal advice. Yes its expensive but a good lawyer is well worth the investment.
I am no lawyer. But I served on a jury, and some pretty important dates were amended on some paperwork mid trial. This was because it was a clear mistake.
I pretty much agree with the above. Get proper legal advice.
Although there are plenty of wannabe legal experts on trucknet, I think the best advice you’ll get on here is the contact details of a good lawyer who specialises in transport law.
The 2 mins over 4.5 hrs is a slap on the wrist a fine at worst your husbands problem is the removing his card and continuing to drive/ work being on private land is irrelevant as far as vosa are concerned its a false entry and it has a knock on effect when he next enters details onto his card as they are also considered false because vosa will point to him removing his card and carrying on. On the point that you say he was told that’s what to do I doubt very much his company did even though they are probably aware it happens, they certainly won’t admit it happens to their knowledge it’s more than likely other drivers have said this is what you have to do its what happened to me many many years ago when I started out and I followed till I got caught,got fined and banned for a month.the ministry man’s advice to me which I still follow was record everything on your tacho even if your over hours, write an explanation why with it and even though you may get in trouble you have shown the reason, by removing your card and not recording things your committing fraud and things as I found out become a whole lot worse. Good luck with what ever way you decide to go but remember it doesn’t finish at court if found guilty he will get summoned in front of the area commissioner to explain his conduct and he/ she will probably punish him as well
So going over your time by two minutes, twice, and pulling the card but continuing to drive for what sounds like a few minutes more on private land equals a summons to court, then.
Olog Hai:
So going over your time by two minutes, twice, and pulling the card but continuing to drive for what sounds like a few minutes more on private land equals a summons to court, then.
Ok, not what you will want to hear but you will be found ‘Guilty’.The task for you is through mitigation [lying through your teeth]is to reduce the
penalty.Wthout knowing full circumstances the 2 minutes over could be explained to the Magistrates as, Vosa are now a ‘self financing’ organisation
and taking into consideration our massively congested highways actually finding a parking place is extremely difficult but with Vosa ‘self financing’
this charge is frivolous.2 minutes over, the public were unlikely to face injury.As for taking the card out,you had entered the yard expecting to go
home but circumstances changed and in the melee of preparing to carry on working you forgot about the card.Vosa’s solicitor gets paid on results
and,hell,he probably drinks with the magistrates so if you can’t afford/get legal aid you will be found guilty.Clean yourself up/wear a suit/don’t
use bad language and listen to the tripe Vosa’s solicitor comes out with,even write it down,you might want to question it,he will be looking at you
as a dumb driver…prove your not.
The driver only has to provide the last 28 days of tachograph records.
As said, it is better to keep the card in rather than hide all work activities, the Traffic Commisioner may be in court and throw the forgery and fraud book at your husband which is very serious in legal terms.
The law allows driving over hours in unforeseen circumstances due to road closures or bad weather.
Explain all infringements on the digi printouts.
The journey can be continued to find the next suitable and safe parking for the load and other road users.
The Traffic Commissioner has the power to take away driving licence, remove or reduce vehicles at their operating base, restrict vehicle movements by times of operating.
Take away O licences, fines to pay and in serious cases, impose a prison sentence.
Reference Boyles International transport Ireland,the two brothers that owned it got five years prison for tacho fraud, but drivers were working 21 hours with no rest and breaks.
They were caught by the paper trail evidence of cctv at ferry ports, weighbridges and fuel stations by receipts.
Motorway cameras, tacho and real time activity did not tally up together.My advice is to borrow money from friends or family to hire a transport specialist lawyer.
As posted Citizens Advice Bureau.Advice is free to get the ball rolling.
You need to get proper legal advice, creating a false record is a serious offence which in the worst case scenario can carry a custodial sentence as the penalty. It sounds like he puled the card on more than one occasion and the more he has done it and will likely lead to a stiffer penalty. The fact the boss told him to do it isn’t mitigating circumstances, he is expected to know the regulations and abide by them regardless of being told to do otherwise. If found guilty it will almost certainly lead to at least a suspension of his licence for a while so you really need proper legal representation. A lot of solicitors offer a short free consultation so that might be worth a try or Citizens Advice would be another option.
The wrong date on the summons is not a way out of this, there is something called the ‘Slip Rule’ which allows things like this to be corrected on the day of the case so this won’t be a way of getting out of this.
The 2 minutes over 4.5 hours driving time wouldn’t normally receive a summons, and would often just be a warning, but things like that are added in when they are looking to prosecute for a more serious offence. Without the pulling of the card, and thereby creating a false record, he probably wouldn’t be facing any penalty for the 2 minutes over.
What was the print out a failed to hand in? I assume it was one on which he was explaining a deviation from the rules or he was making a manual record for some reason? They are the only ones that need to be handed in.
Olog Hai:
So going over your time by two minutes, twice, and pulling the card but continuing to drive for what sounds like a few minutes more on private land equals a summons to court, then.
Is there nothing more to it than that?
Hi thanks for replying, There is nothing more to it, he was 4hrs 32mins when he arrived at the yard and stupidly pulled his card, he did not further work after this as his shift was finished…
T2015 Question…how did Vosa find out he had taken card out on entering yard ?Ah just read the previous post seems your company is being
targetted for failing in so many ways.If I may add on being found Guilty of an offence it is ‘your’ duty to inform Traffic commisioner for your area
adding relevant excuses.
Olog Hai:
So going over your time by two minutes, twice, and pulling the card but continuing to drive for what sounds like a few minutes more on private land equals a summons to court, then.
Is there nothing more to it than that?
Hi thanks for replying, There is nothing more to it, he was 4hrs 32mins when he arrived at the yard and stupidly pulled his card, he did not further work after this as his shift was finished…
Trouble is in the eyes of VOSA and the regulations he did further work after this. Parking the vehicle, handing in paperwork and keys etc all counts as work and should be recorded. Sounds like there was very scant regard to the regulations at this company with the amount of drivers facing prosecution.
A visit to the TC is almost certain for the drivers, especially the ones who’ve created false records, and the company will be heading for a meeting without a doubt. They will be facing various possible sanctions from curtailing the number of vehicles on their operators licence to total loss of it and bans for the owners/directors from holding a licence for a period.
trucker2015:
there are some factors such as he’s been told to pull the card once he’s on private land and he’s never been told that he has to hand in printouts he just kept it for 28 days then got rid.
Neither of those are mitigating factors because it is a requirement that you know all of this. It is basic tachograph knowledge that you do not remove the card until the end of the shift and that you must hand in printouts, although you have a maximum 42 days to do this but must retain them on your person for production at a roadside check for 28 days. As I said these are basic things that you are required to know that a commercial driver using a tachograph would be expected to know. Saying “my boss told me to pull the card and I didn’t know better” is going to harm any defence, not aid it.
In regards to the pulling the card and doing extra work, I’m afraid he did. VOSA would expect at least an additional 15 minutes for end of duty tasks as highlighted above by Coffeeholic.
There’s a possibility that he’s going to end up in front of a traffic commissioner as well and possibly facing suspension or revocation of his HGV entitlement. His employer won’t tell him anything about that because they won’t get any advanced warning, just a summons to appear. The TC will make this decision based upon the ruling in the magistrates court when the TC gets notified about it. So just because you don’t hear something by the time you’ve gone to court don’t assume you’re in the clear.
You need to find the money for a lawyer. Depending upon the severity and the number of times he’s actually done it compared to what he’s told you, drivers have gone to prison for this. 7 of these drivers got between2 months to 12 months in prison, the average being 8 months and the rest got suspended sentences. The bosses got 2 years in prison.
Olog Hai:
So going over your time by two minutes, twice, and pulling the card but continuing to drive for what sounds like a few minutes more on private land equals a summons to court, then.
Is there nothing more to it than that?
He’s knowingly created a false record. That is outright fraud. It goes beyond driving offences and into the realms of criminality. He may have only driven a few minutes more on private land but thats no indication of how long he has continued to do non-driving work without taking a 45 minute break. For all we know he could have jumped straight out of the truck and spent an hour in the warehouse “off card.” And we only have what he’s told his wife which may be the polar opposite from the truth either because he doesn’t want her to know or in his mind it was such a minor thing to bother about he’s not remembered just how many times he actually has done it.
You may find it trivial but this is the reality of the risk you take when you flout the law. Its why some of us continually bang on about it despite people like Dieseldog etc calling us ■■■■■■■.