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Sunday 22 November 2009
Drink-driving conviction quashed
In a significant ruling, the High Court has quashed the drink driving conviction of a motorist found sleeping in his parked car on an expressway shoulder - even though his breath alcohol level was above the legal limit.
Motorist found sleeping in his car; judge rules lesser charge applies
K C Vijayan 20 November 2009
In a significant ruling, the High Court has quashed the drink driving conviction of a motorist found sleeping in his parked car on an expressway shoulder - even though his breath alcohol level was above the legal limit.
Ruling that, at best, the driver was guilty of being intoxicated while in control of a vehicle on a road, but not driving it, Justice Lee Seiu Kin ordered that he be charged with a less serious offence.
The written grounds for the judge’s decision in the case of R. Subramaniam, 55, were published on Wednesday.
Subramaniam had been fined $3,000 and banned for two years from driving in January. But he appealed, and this was heard in July.
In his written judgment, Justice Lee ruled that it could not be presumed that Subramaniam was drink driving before he fell asleep, since there was no evidence of his alcohol level then.
He was tested by police only after they found him - almost two hours after he first pulled to the side of the road to catch 40 winks.
The case began on Dec 2 two years ago, when the storekeeper went to a coffee shop in Tanjong Pagar at about 10pm.
He drank for about an hour, he said, but remained in the coffee shop till about 2am, after which he got into his Hyundai Avante to drive to his home in Hougang.
But just 15 minutes after he started his journey, he felt sleepy, and pulled over.
Nearly two hours later, police - alerted by an eyewitness - came upon his car and administered an initial roadside breathalyser test.
Subramaniam failed the test and was arrested for being intoxicated while in charge of a car. He was taken to Traffic Police headquarters for a further test.
That test showed that the alcohol level in his breath was eight microgrammes above the legal limit of 35 microgrammes of alcohol per 100ml of breath. He was then charged with drink driving.
During his trial, the prosecution said it could be presumed that the storekeeper had had the same breath alcohol levels at 2am, when he first began driving, as he had at about 5.42am, when he was given the breath alcohol analyser test.
But during his appeal, his lawyer, Mr. S. K. Kumar, told the High Court that the assumption could only be made if a driver had been stopped at a roadblock.
If the motorist were found in a stationary car, the more serious offence of drink driving could not be substantiated, as there would be no evidence of his alcohol level while driving the car.
In his written judgment, Justice Lee noted that the police had initially arrested Subramaniam on the lesser offence of being in control of the car while under the influence of alcohol, and not drink-driving.
They amended the charge to drink driving after Subramaniam told them he had been driving for 15 minutes from about 2am.
The judge said that, in effect, this meant that the storekeeper would have been better off if he had refused to submit to the police breathalyser test.
If he had done so, the judge said, prosecutors would not have been able to charge him with the more severe offence of drink-driving without the test results.
This could not have been the intention of the law, the judge said.
‘The conclusion that can be drawn is that it may be used only in relation to the offence under which the person is arrested,’ he said.
Subramaniam will appear in court again on Tuesday to indicate if he wants to admit to the lesser charge, or contest it.
If he pleads guilty, or is convicted of the charge of being in control of a vehicle while intoxicated, but not driving it, he could be fined up to $2,000 or jailed up to three months, but will not be subject to a mandatory driving ban of at least 12 months.
Lawyers said the case had shown that there could not be a broad-brush approach to prosecuting offenders under drink-driving based on certain presumptions.
‘The judge has brought a sharp analytical bearing to explain the fine distinctions in this area of the law, especially at a time when more are being booked for drink driving,’ said lawyer Amolat Singh.
2 comments:
Drink-driving conviction quashed
Motorist found sleeping in his car; judge rules lesser charge applies
K C Vijayan
20 November 2009
In a significant ruling, the High Court has quashed the drink driving conviction of a motorist found sleeping in his parked car on an expressway shoulder - even though his breath alcohol level was above the legal limit.
Ruling that, at best, the driver was guilty of being intoxicated while in control of a vehicle on a road, but not driving it, Justice Lee Seiu Kin ordered that he be charged with a less serious offence.
The written grounds for the judge’s decision in the case of R. Subramaniam, 55, were published on Wednesday.
Subramaniam had been fined $3,000 and banned for two years from driving in January. But he appealed, and this was heard in July.
In his written judgment, Justice Lee ruled that it could not be presumed that Subramaniam was drink driving before he fell asleep, since there was no evidence of his alcohol level then.
He was tested by police only after they found him - almost two hours after he first pulled to the side of the road to catch 40 winks.
The case began on Dec 2 two years ago, when the storekeeper went to a coffee shop in Tanjong Pagar at about 10pm.
He drank for about an hour, he said, but remained in the coffee shop till about 2am, after which he got into his Hyundai Avante to drive to his home in Hougang.
But just 15 minutes after he started his journey, he felt sleepy, and pulled over.
Nearly two hours later, police - alerted by an eyewitness - came upon his car and administered an initial roadside breathalyser test.
Subramaniam failed the test and was arrested for being intoxicated while in charge of a car. He was taken to Traffic Police headquarters for a further test.
That test showed that the alcohol level in his breath was eight microgrammes above the legal limit of 35 microgrammes of alcohol per 100ml of breath. He was then charged with drink driving.
During his trial, the prosecution said it could be presumed that the storekeeper had had the same breath alcohol levels at 2am, when he first began driving, as he had at about 5.42am, when he was given the breath alcohol analyser test.
But during his appeal, his lawyer, Mr. S. K. Kumar, told the High Court that the assumption could only be made if a driver had been stopped at a roadblock.
If the motorist were found in a stationary car, the more serious offence of drink driving could not be substantiated, as there would be no evidence of his alcohol level while driving the car.
In his written judgment, Justice Lee noted that the police had initially arrested Subramaniam on the lesser offence of being in control of the car while under the influence of alcohol, and not drink-driving.
They amended the charge to drink driving after Subramaniam told them he had been driving for 15 minutes from about 2am.
The judge said that, in effect, this meant that the storekeeper would have been better off if he had refused to submit to the police breathalyser test.
If he had done so, the judge said, prosecutors would not have been able to charge him with the more severe offence of drink-driving without the test results.
This could not have been the intention of the law, the judge said.
‘The conclusion that can be drawn is that it may be used only in relation to the offence under which the person is arrested,’ he said.
Subramaniam will appear in court again on Tuesday to indicate if he wants to admit to the lesser charge, or contest it.
If he pleads guilty, or is convicted of the charge of being in control of a vehicle while intoxicated, but not driving it, he could be fined up to $2,000 or jailed up to three months, but will not be subject to a mandatory driving ban of at least 12 months.
Lawyers said the case had shown that there could not be a broad-brush approach to prosecuting offenders under drink-driving based on certain presumptions.
‘The judge has brought a sharp analytical bearing to explain the fine distinctions in this area of the law, especially at a time when more are being booked for drink driving,’ said lawyer Amolat Singh.
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