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Using a mobile telephone while driving

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A CU80 driving licence endorsement is classed as a conviction. The rehabilitation period for driving licence endorsements is a period of five years, after which they will be classed as 'spent'. You must declare all 'unspent' convictions to insurers when required to do so. More information can be found here.
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DVLA Endorsement Code: CU80
(remains on driving licence 4 years from date of offence)


Breach of Requirements as to control vehicle (mobile Phone)

s. 41D of The Road Traffic Act 1988 [1] makes it an offence to drive or supervise a provisional licence holder (learner driver) while using a mobile telephone or other hand-held interactive communication device, the act states:

A person who contravenes or fails to comply with a construction and use requirement—

  1. as to not driving a motor vehicle in a position which does not give proper control or full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or
  2. as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device, is guilty of an offence.

It is an offence to drive a motor vehicle or supervise the driving of a motor vehicle by a provisional licence holder (learner driver) while using a hand-held mobile telephone or any other interactive communications device.


Telephone and other interactive communication device

The Road Vehicles (Construction and Use) Regulations Act [2] states that a telephone or other interactive communication device will be treated as hand-held if it is, or it must be, held at some point during the course of making or receiving a call or performing any interactive communication function such as:

Two-way radios are exempt

Two way radios such as those used by the emergency services and taxi cabs are exempt as being classified as an interactive communications device in relation to this offence. Thus any person using a two way radio as defined below will not have committed an offence contravening s. 41D of The Road Traffic Act 1988.

A two way radio is any wireless telegraphy device designed or adapted to transmit and receive spoken messages that operates on any frequency other than 880-915 MHz, 925-960 MHz, 1710-1785 MHz, 1805-1880 MHz, 1900-1980 MHz and 2110 - 2170 MHz.


Defences (exempt circumstances)

s. 110(5) of Road Vehicles (Construction and Use) Regulations Act [2] states:

A person does not contravene a provision of this regulation if, at the time of the alleged contravention—

  1. he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
  2. he is acting in response to a genuine emergency; and
  3. it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

Any person who can prove they were using a hand-held mobile telephone or interactive communication device due to a genuine emergency or to call the emergency services whilst it was unsafe or impracticable for them to cease driving in order to do so will not be guilty of contravening this regulation.

Any person charged with this offence who alleges that any of the exempt circumstances outlined above exist will need to give evidence in a court of law as to the reason why that person was using a hand-held telephone or other interactive communication device whilst driving or supervising a provisional licence holder. It will then be up to the prosecution to prove that the reason given was unfounded.

Where a claim by the defendant that exempt circumstances exist an examination of records held by the operator of the mobile network operator can be obtained and will show the time of any call transmitted and whether or not that call was indeed made to a particular emergency services operator. The details of the conversation can also be obtained as emergency calls are recorded.

The court will take all admissible evidence into account before deciding whether or not any reasons given amount to exempt circumstances.


Penalty

Driving while using a hand-held mobile telephone or any other hand-held interactive communication device is a summary offence that can be dealt with by way of a fixed penalty in circumstances where the driver will not be liable for disqualification under the totting up procedure as a result of obtaining 3 additional penalty points for this offence.

Fixed Penalty

The fixed penalty for this offence is a £100 fine and 3 penalty points which will remain on a driving licence for a period of 4 years from the date of the offence and will be declarable to insurers for five years.

If a driver is offered a fixed penalty, it is up to them whether or not they accept the offer of the fixed penalty. If the fixed penalty offer is accepted then they will usually have 21 days (or a period which may be longer as stated on the fixed penalty notice) in which to pay the penalty and subsequently have their driving licence endorsed.

Once a fixed penalty notice has been accepted, the defendant can at any time before the maximum time stated on the fixed penalty ticket has expired request a hearing at a magistrates court where they can either plead guilty or contest the ticket by pleading not guilty.

If the defendant does not request a hearing or pay the fixed penalty before expiration of the maximum time they were given to do so then their driving licence will be endorsed and the financial penalty will increase to that of 50% above the original financial fixed penalty.

If the case goes to court then the person could be fined up to an additional £1,000 or if they are a driver of a goods vehicle or a driver of a vehicle adapted to carry more than eight passengers (i.e. a bus) an additional fine of up £2,500. They could also face a discretionary driving disqualification.


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Reference:

[1] The Road Traffic Act 1988

[2] Road Vehicles (Construction and Use) Regulations 1986

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