Area of Law – Driving – Drink Driving Offences

An Article about Can a Court dismiss a drink driving offence under s. 49(1)(b) rather than s. 49(1)(f)

An Article about Can a Court dismiss a drink driving offence under s. 49(1)(b) rather than s. 49(1)(f)
It is usually more difficult for the police to establish with any precision whether a person at the time of driving a motor vehicle was over the prescribed limit (the offence under s. 49(1)(b)). The standard practice is for a police officer to charge a person under s. 49(1)(b) and s. 49(1)(f). Section 49(1)(f) concerns a reading over the prescribed limit at the point of providing the breath sample and within 3 hours of driving the motor vehicle. The offence under s. 49(1)(f) is more easily established than an offence under s. 49(1)(b). Hence, the prosecution will usually proceed with the offence under s. 49(1)(f). Can section 49(1)(f) be withdrawn in preference to s. 49(1)(b). The following case discusses this issue.

Johnstone v Matheson [2008] VSC 567 was an appeal concerning a Magistrate’s decision to dismiss a charge under s. 49(1)(f) in preference to s. 49(1)(b). The prosecution proceeded with both chages at the earlier hearing and the defendant was found guilty of both charges.

However after hearing evidence from the defendant about the amount of alcohol he had consumed and the timeframe of his consumption, and evidence from an expert who approximated his BAC to be 0.67% at the relevant time of driving, the Magistrate dismissed the offence under s. 49(1)(f) and “read down” the bac to 0.67%. This had the effect of allowing the Magistrate to exercise discretion as to whether to impose a period of disqualification.

The Magistrate fined the defendant but did not disqualify him. On appeal, the Court of Criminal Appeal held that the offences under s. 49(1)(f) and s. 49(1)(b) are distinct offences with separate elements. The charging of a person with both offences does not offend the double jeopardy principle. Further, the double jeopardy principle cannot be used to dismiss the more serious offence under s. 49(1)(f) in preference to the less serious offence under s. 49(1)(b).

 

Date: 01/09/2009