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Drunk man beats charge

Discussion in 'The Pub' started by Jeffco, Sep 1, 2013.

  1. Don't know if this is the right area for this so mods please move if required. Just thought it was an interesting case.

    This is from this mornings HS, personally I don't have a huge problem with the outcome of this.

    It doesn't mention that he had actually driven any distance at all, just that he may have been going to before passing out and being found.

    Wondering what others think

    A MAN nabbed asleep at the wheel of his car with the engine running and more than five times the legal alcohol limit has beaten a drink-drive conviction after a judge ruled it hadn't been proven he was in charge of the vehicle.

    Sean Halley was found slumped over the wheel of his Holden on Huntingdale Rd, Huntingdale, in January last year by Sgt Mark Kershaw.

    Sgt Kershaw had to knock on the car window several times and it took more than seven minutes for Halley to sit up and open the door.

    He was taken to Oakleigh police station where he returned a blood alcohol reading of .266, more than five times the legal limit.

    He was convicted at the Moorabbin Magistrates Court last October, fined $500 and lost his licence for two years.
    But Supreme Court Justice Stephen Kaye last week quashed the decision, ruling the magistrate had erred because it had not been established Halley was in charge of the vehicle.
    Justice Kaye also refused Sgt Kershaw's bid to have the matter reheard, which means Halley is free to drive and will not be punished.

    "(The) evidence would be entirely inadequate to entitle a court to conclude, beyond reasonable doubt, that the informant believed, on reasonable grounds, that (Halley) was intending to drive the vehicle."

    Barrister Michael Kuzilny, a lawyer who specialises in drink-drive cases, said the community would be disappointed Halley got off.

    "He gets a lawyer, who argues the points of law were not correctly applied and he gets off. It just shows you that the law is an imperfect science, and many people must wonder how silly our legal system really is," Mr Kuzilny said
    "There is no doubt this person presented a great danger to innocent road users, families and children in the vicinity.

    "The judge in this case believed that the presiding magistrate did not apply the right principles of law when coming to his final conclusion.

    This person could have driven and killed someone, or the car could have rolled and caused serious injury.

    Even if the car did not move at all, the law is quite clear, we cannot be drunk and in charge of a motor vehicle."

  2. If the engine was running it is obvious he intended to drive so he definitely should not have been left off.

    If on the other hand the engine was turned off, it's possible he might have just decided to spend the night in his car rather than catch a cab home, which is okay.
  3. Fair enough. He wasn't seen driving. Engine may have been turned on to keep him warm or stop flat battety with the radio going.
  4. I still think he intended on driving but was either just sober enough to change his mind before passing out or too drunk to finish what he started. Never should have got behind the wheel in the first place. Now every other would be drink driver may get off cause of this guy.

    People who drink regularly may be able to handle their alcohol better than others, but they still get drunk. All fun and games until you run someone over.
  5. The Road safety Act 1986 defines "Circumstances in which person is to be taken to be in charge of a motor vehicle" below:

    3AA. Circumstances in which person is to be taken to be in charge of a motor

    (1) Without limiting the circumstances in which a person is in charge of a
    motor vehicle, the following persons are to be taken to be in charge of a
    motor vehicle for the purposes of this Act-

    (a) a person who is attempting to start or drive the motor vehicle;

    (b) a person with respect to whom there are reasonable grounds for the
    belief that he or she intends to start or drive the motor vehicle;

    (c) a commercial driving instructor while the person whom he or she is
    teaching to drive is driving or in charge of the vehicle;

    (d) an accompanying licensed driver while the person whom he or she is
    sitting beside is driving or in charge of the vehicle.

    (2) Subsection (1)(c) or (d) does not affect any liability of the person being
    taught or accompanied for any offence committed by that person while driving
    or being in charge of the motor vehicle.

    Link: http://www.austlii.edu.au/au/legis/vic/consol_act/rsa1986125/s3aa.html

    So does he fall within dot point (1)(b) or not?
  6. Not that traffic law is my bread and butter, but i don't think attempted drink drive is on the books.

    Give it a couple of weeks and some quick amendments and I'm sure the powers that be will fix that up, though.

    Insert new s22AB:

    22AB Attempted drink drive

    (1) a person who-
    (a) while having a prescribed blood alcohol content of 0.08 or greater; and
    (b) has access, or intends to gain access, to a motor vehicle;
    Shall be considered, and not limited by any other section in this Act or any other Act of parliament, to have attempted to drive on public roads with a prescribed blood alcohol content exceeding the legal limit.
    Penalty: your mum.

    (2) In this section-
    drive means operate any motor vehicle or donkey within the meaning of any section of this Act.
    person means any man, woman, child, horse or applecart capable of conscious thought.
    • Funny Funny x 1
  7. If I had been drinking and intended on sleeping in the car I would have probably slept in the passenger. I definitely would not have had the engine running. But there could be more to this case than what the media has portrayed.
  8. Maybe he was trying to kill himself but forgot to run the pipe from the exhaust...
    • Funny Funny x 1
    • Informative Informative x 1
  9. I'm entirely OK with the outcome. It should be difficult to obtain a conviction for any offence. Think carefully about the potential consequences of the alternative.

    As for this particular case, yes, it may have been quashed on what you might regard as a technicality or a point of law but I would again point out that such technicalities and points of law form part of the system of safeguards against miscarriages of justice.

    So yes, I'd rather dodge the odd potentially unpunished drink driver than I would a Police force, justice system and, ultimately a government who might find it convenient to convict people they shouldn't.
    • Like Like x 1
    • Agree Agree x 1
  10. Maybe the argument that they put forward was he couldn't be in control as he was asleep.
    Who knows.
    All we have is a tabloid news article at this stage. Not something I would call credible
  11. I thinks shouldn't cut it in a court of law. Was he intending to drive? Probably. But that should not be enough to convict someone.
  12. I was always told, in NSW if you intend to sleep it off in your car at a party, Then you should leave the keys inside the house.

    As having the keys in your possession even sleeping in the back seat can have you charged as in control of the motor vehicle
  13. I had a house mate who did this:

    Went out drinking, then slept in his car in the parking lot.
    Freezing cold night, so turns on engine and heater.
    Goes to sleep.
    Cops wake him up.
    Proceed to throw book at him.

    Whatever happened to innocent until proven guilty?

    Just wondering, what happens if you just don't acknowledge them, and keep sleeping until such a time that you're BAC is low enough?
  15. I'm with PatB on this one, should have would have could have doesn't matter. It may been a "point of law" from a smart lawyer but it should be difficult to gain convictions.

    I'm willing to bet that points of law have been used to get more people off more serious charges than drink driving.
  16. The real problem with charging people for not drink driving but sitting in their cars is that it sends a horrible message. The fact is people will be drunk, get chucked out of the pub or party and end up with no where to go but their car. Here the smart people will decide not to drive and sleep it off (some with engine running for the heater, it is cold at night), although some will decide to drive. I'd say the proportion of these that decide to drive but pass out before succeeding is incredibly low in comparison.

    If sitting in your car sleeping off a big night is considered by law the same as drink driving people will invariably go for the driving decision because you decrease your chance of getting caught. You either take the relatively short drive home or you go to sleep for many hours in the same spot, with engine running so it's incredibly obvious to anyone patrolling.

    The driving decision seems more sensible to me and I'm sober for the time being.
  17. That ought to have been enough. Maybe the police didn't use this part?

    Long ago, a friend of mine was rubbed out because the cops found him alseep in the back seat of his car, dead drunk. I had put him there to keep him out of harm's way (he was offending people and liable to get punched) and I had kept his keys when I went back into the pub. He was judged to have been in control of the vehicle.
  18. Well obviously not. It would be great to read the verdict as I'm sure the judge will go into detail regarding what constitutes control of the vehicle.
  19. Here's someone else beating a drink driving charge

    Tony Abbott staffer Peta Credlin escapes drink-driving conviction
    September 10, 2013 - 12:10PM
    7 reading nowRead later
    Michael Inman

    Drink Driving Offencewww.lewenberg.com.au
    Expert Criminal Lawyers With 40 Years Experience. Call Us. VIC.

    Tony Abbott's chief of staff, Peta Credlin arrives at the ACT Magistrates Court. Photo: Rohan Thomson
    Federal Election 2013 coverage
    Federal Election 2013 results
    Prime minister-elect Tony Abbott's chief of staff Peta Credlin has avoided conviction for drink-driving.

    Ms Credlin, 42, appeared before the ACT Magistrates Court on Tuesday on a low-level drink-driving charge.

    Tony Abbott's chief of staff, Peta Credlin has escaped a conviction for drink driving. Photo: Rohan Thomson
    Ms Credlin blew 0.075 when she was tested by police outside her Canberra home after Mr Abbott's budget reply speech about 1.10am on May 17.

    She previously indicated she would plead guilty and maintained that position when formally charged on Tuesday.

    Defence lawyer Ben Aulich said the low-level reading was a big mistake from an experienced driver.

    Mr Aulich tendered a letter from Liberal member George Brandis, QC, which described Ms Credlin as a person of "utmost integrity" who was "universally respected" with a "deep sense of ... public duty".

    Mr Aulich said Ms Credlin had already been punished via the enormous amount of media attention the charge created.

    Magistrate Maria Doogan dismissed the charges, which means Ms Credlin escaped conviction and suspension, as it was the first time she has been charged with an offence in 21 years of driving.

    But Mrs Doogan ordered Ms Credlin pay $69 in court costs.

    The matter was originally listed for July but postponed until after the election due to Ms Credlin's busy travel schedule with Mr Abbott.

    Speaking outside court, Ms Credlin said she had no excuse for breaking the law.

    "I did the wrong thing, I made a mistake and I asked for the matter to be dealt with in the usual way, which has been done today," she said.

    "I thank the police for their work, the court for their work and, as you may well know, I've got a job to do myself,