Thousands of drink-driving convictions are at risk because of a legal cloud over the right of more than 1500 police officers to operate breath-testing devices.
SA Police are working to correct the loophole that saw a P-plater escape conviction after recording a blood alcohol level of 0.127. The Supreme Court has ruled that the wording of a Government Gazette in mid-2009 means the driver cannot be held responsible for his alleged actions. Lawyers believe the decision makes it possible for other drivers charged since that date to challenge their convictions and win.
Lawyer Michael Woods, last night said anyone accused of drink-driving from July 2009 should seek legal advice because of the court's decision. "In my view ... they will have trouble proving the case against anyone (convicted of drink-driving since then)," Mr Woods said. "I think the prosecution would have trouble proving the breath analysis operator was properly approved to operate the instrument. I think the cases may fail."
Police, however, believe that is not the case. "SA Police are considering an appeal to the Full Court of the Supreme Court," a spokeswoman said yesterday. "It is understood the decision will not impact on future, or historical, prosecutions relating to drink-driving matters."
State Budget papers show police detected 10,865 drink-drivers in 2009-10 while 10,305 detections were estimated in 2010-11. The Supreme Court decision states police had alleged that, on July 29, 2010, the P-plater was pulled over on Montague Rd, Modbury. He allegedly recorded a blood alcohol reading of 0.127, and was charged with drink-driving and contravening the conditions of his provisional licence.
The Adelaide Magistrates Court subsequently found the P-plater had no case to answer on the drink-driving charge.Under the Road Traffic Act, officers that operate breathalysers must have signed authorisation from Commissioner Mal Hyde to do so. Without signed authorisation, it ruled, a case could not be mounted against the driver. Police have lodged a Supreme Court appeal against the acquittal. They argued that, on July 7, 2009, a notice in the Government Gazette gave that officer - and 1500 others - the right to operate the machines. That Gazette, they said, was sufficient permission.
However, Joana Fuller, for the man, said the wording of the Gazette gave officers power to operate the machines on July 7 only - no other day. She said the wording did not confer ongoing power to those 1500 officers. The Gazette, she said, was also not signed by Commissioner Hyde and so it failed to satisfy the requirements of the Road Traffic Act. In his ruling, Justice Tim Anderson agreed. "The (authorisation) certificate, on its face, must show that the authority is current at the time of the offence," he said. "This Gazette does not do that. It is not to the point that someone was authorised at an earlier point of time." He said that, for a person to be accused of drink-driving, police must prove the officer involved was authorised to operate a breathalyser, and it was not.
Ms Fuller told Channel 9 last night the decision "might affect some cases in the short term and it's a matter for the Commissioner and the prosecution as to how they go about fixing this particular problem." The police statement said: "The decision is the result of a technical matter in relation to the certificate which authorises a police officer to operate a breath analysis machine."
Source: The Advertiser 19 August
