Author: Nyman Gibson Miralis

Burwood Local Court

Represented by Nyman Gibson Miralis

Case Facts:

Police attended the scene of an accident where our client had driven through a red light and collided with another vehicle. No persons were injured. However, both vehicles were damaged such that they needed to be towed away from the scene. Upon arrival, the police submitted our client to a roadside breath test [section 13 Road Transport (Safety and Traffic Management) Act 1999, which returned a positive result. Our client was arrested [section 14 Road Transport (Safety and Traffic Management) Act 1999] and taken to the police station for breath analysis.

He was later charged with Low Range PCA or low range drink driving, with a blood alcohol concentration (BAC) of 0.079 pursuant toSection 9(2) Road Transport Safety and Traffic Management) Act 1999. The threshold reading for mid-range drink driving commences at 0.080. Therefore, the reading in this case was at the high end for low range drink driving.

Potential Penalties:

The potential penalties for Low Range PCA are a fine of $1100 and an automatic disqualification period of 6 months. The disqualification period can be reduced to not less than 3 months. It is possible to have no conviction recorded and therefore avoid disqualification if the Magistrate can be persuaded to find the offence proved but inexpedient to record a conviction pursuant to section 10 Crimes (Sentencing Procedure) Act. Factors to be taken into account include the offender’s age, antecedents, character, health, mental condition, trivial nature of the offence, extenuating circumstances in which the offence was committed, and any other matter the court thinks proper to consider. In other words, it is a discretionary matter for the court.

Our client was aged in his mid 70s and had held a driver’s licence for over 50 years. His driving traffic record revealed that he had received some infringement notices over that time. He had no criminal record. Our client had retired and was intent on travelling around Australia and the world with his wife. Loss of licence would have impacted on his travel plans. We booked him in to complete the Traffic Offender Intervention Program – a number of our traffic law experts and criminal defence solicitors lecture at these programs.

Despite his prior good character, the facts of this case were serious. Not only was our client at the high end of low range drink driving, he was also involved in a motor vehicle collision caused by him going through a red light. The accident and driving contrary to a red light were aggravating factors. The higher reading increased his moral culpability which may lead to consideration of higher penalties being imposed. This was always going to present a difficulty, particularly as our client wished to avoid having a conviction recorded for this offence so that he could fulfill his retirement dream and drive around Australia.

Plea in mitigation:

Appearing in court without a lawyer can be daunting and intimidating. The Magistrate knows the law – but few self-represented persons can say the same. Having a criminal defence lawyer and traffic expert appear to present your plea can have obvious advantages. In this instance, the court was persuaded that it was appropriate not to record a conviction, having taken into account all of the subjective and objective factors. The matter was dismissed. The client avoided becoming a disqualified driver, thereby keeping his licence. The client was very happy and relieved, as was his wife – who much preferred the passenger seat.