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Cheers - AE

Wednesday, 28 October 2009

No steering for the wheels of justice.

Drink driving is one of those things that most people agree is probably not a good thing. There may be some debate over the ideal limit, and libertarians may even prefer to test the level of actual impairment rather than compare the quantity of alcohol detected to an arbitrary limit*, but I think it's safe to say that nobody really wants to people who are completely shitfaced to be driving cars. But if you don't think out all the law surrounding the issue with great care you can potentially end up with cases that make the law look... well, inflexible, unjust and stupid. Like getting banned despite an alcohol reading of zero for instance.
In February 2007, Mr Di Milta says he drove home from work to take his sick 11-year-old daughter Marisa to hospital. The girl was in excruciating pain after two lots of spinal surgery and Mr Di Milta admits to rushing home, driving at about 65 km/h in a 60 km/h zone.

Not far from his house, he was stopped at a booze bus, where he told a policewoman about his situation. She told him to get out of the car, but he drove off.

Half an hour later, while his daughter lay in hospital, Mr Di Milta returned to the booze bus, apologised to the same policewoman and took a breath test, which returned a blood-alcohol level of zero.

Mr Di Milta was charged with failing to stop at a booze bus and his lawyer later entered a guilty plea - allegedly without consulting him. A finding of guilt or conviction carries a mandatory licence suspension of two years.
So other than minor speeding to a degree that could also be achieved by a damn good tailwind Mr Di Milta's offence was a technical one. No doubt the law was designed in this way so that those who might consider evading the random tests by driving away from the booze bus are presumed guilty and punished to the same extent, the idea being to make it a waste of time driving off. Clearly that's not the case here since Di Milta not only returned to the booze bus but did so within such a short space of time that it's simply not credible that he'd have been over the limit at the first stop and had a BAC of zero when he came back. So what was he punished for? Failing to offer instant obedience to a police officer? I doubt that one's on the statute books and I also doubt that the cop was taking a vindictive attitude toward a clearly compassionate father put his daughter above obeying her instructions. I imagine there's probably a reporting procedure for drive-aways that she was expected to follow and she may well have expected that someone higher up would sort it out fairly. Like the court, maybe? If that was what the police woman was thinking I can't blame her because it's not an unreasonable expectation that courts are there to see justice done, but either because of the law or because nobody stopped to consider if charging Mr Di Milta was really in the public interest an injustice was done instead.
''No one asked me anything. The magistrate talked with the lawyer and my licence was suspended for two years,'' Mr Di Milta said.
Poor bastard. And insult has been added to injury.
When he returned to court to get his licence back this month, he could not answer a magistrate's question about how long it would take for a standard drink to leave his body to reach a zero blood alcohol reading.

The magistrate then ordered him to undertake a drink-driving course and that an alcohol interlock device be fitted on his car.
Why the hell put him through this? Why bother making him go through the indignity of having to have his car modified as if he was a recidivist drink driver? Why send him on a patently unnecessary course? Why even ask him the fucking question when the test he gave in relation to the offence for which he was banned came back with a zero alcohol reading?
''I thought I'd paid my price,'' Mr Di Milta, a chef, said. ''Why do I get punished for something I did not do? I'm not a drink-driver.''
Why indeed. Apparently the way the law is written may be part of it...
Traffic law experts consulted by The Age said that while Mr Di Milta could have possibly beaten the charge with a defence of necessity, a guilty plea meant that, under the law, the magistrate had no choice but to suspend his licence.

The necessity defence has been successfully run in several traffic cases. They include the case of a man who drove to the chemist to get his ill wife an asthma puffer and ignored a booze bus, only to return to it later and record an blood alcohol reading well above the legal limit.
... but you'd have thought that someone at some stage, either prosecutors or beaks at the original trial or at Mr Di Milta's more recent appearance, would have noticed that they're beating on the poor guy for a trivial technical infringement and that the punishment he's received goes way beyond what we might loosely call his crime.
Legally, magistrates can order people convicted of not stopping at a booze bus to take a drink-driving course, while a minimum six-month fitting of an alcohol interlock device is mandatory for those convicted.
'Can' order, you see, not 'must'. Their hands may be legally tied as far as the (pointless in this case) alcohol interlock device is concerned, in which case you'd hope that intellectual honesty would cut in and they'd be making waves up the chain to get the law amended, but the fact that they're forcing him to go on this drink driving course without any apparent justification for doing so makes it look like the real crime, the unspoken and unofficial offence, was failing to be deferential and obedient to authority. Since Mr Di Milta's insurance company will probably take a dim view of his conviction without taking any interest in the facts he can look forward to his punishment continuing for some time in the form of unnecessarily high premiums. In the quest for safer roads the wheels of justice just keep running this guy over. It'd be ironic if it wasn't so bloody outrageous.

* We've all seen those Police-Camera-Crash type TV shows from the US where suspected drunk drivers are made to stand on one leg or precisely walk along white lines or touch their nose while keeping their eyes closed. Compared to simply getting drivers to blow into a tube and nicking 'em if a light turns red the American cops look like they're working with stone knives and animal skins, but the truth is quite different. The roadside impairment tests are really rather clever at identifying drivers who have drunk enough to make them poorly co-ordinated and therefore unlikely to drive well. And there are two big advantages to testing impairment: first, a big guy who can hold his booze well might be less impaired than a two pot screamer who drank much less, yet with a hard blood / breath alcohol limit it could well be the guy who drank less who'd be under the limit and allowed to drive the rest of the way home. Secondly it would automatically pick up drivers who haven't had a drop but are impaired for other reasons - drugs, lack of sleep, medical reasons, whatever. When you take your driving test all that's being considered is your ability to operate a car safely, and those who can't are knocked back. The same thinking should be applied to road side testing. All that matters is whether I am safe to drive - if I'm not the reasons are pretty irrelevant.


Mummy x said...

This is where my argument for prevention instead of cure falls flat on it's face. Doh. With drink driving, as with many driving 'laws' the prevention just doesn't seem to be working. There will always be muppets that think they can drive after drinking, drive whilst on a phone, drive with out having passed the required test etc. I my opinion the only way to deal with this problem is to make the punishment so severe and unbending that it is just not worth the risk. At the moment there are so many sub-laws, fines etc tied to driving that it has all become too complicated. I think we need to revert to a simpler system, take your chance but if you get caught, holy crap, you will pay the price. Do what you want behind the wheel but if you harm another person in the process you can't say you didn't know the consequences. If you kill someone with your car whilst you were drunk, high, speeding, phoning, texting, having sex etc it's life. You knew the risks, knew the punishment but still went ahead and did. No mitigating circumstances. End of. Seat belt laws should only apply to passengers. Not wearing a seatbelt never caused an accident, it just makes the chances of surviving one much slimmer. So if you are driving other people you should be bound by law to ensure that if you (the driver) fucks up, or some one else fucks you up, your passengers should be safe. What you choose to do with your own body is up to you.


Mummy x

am having a ranty day, you have been warned x

Angry Exile said...

Hi MummyLL

I've read your bit on prevention vs cure over at your place. Actually I don't think what I blogged about the Victorian cops and courts here stuffing Mr Di Milta with a drink driving charge despite zero alcohol, or even if he'd been pissed out of his brains, would make a lot of difference to what you said. I think you're right about having too many laws and needing a simpler system, though I think we needn't go too draconic (draconic penalties don't stop drug smugglers risking the death penalty in some parts of the world) and could go even simpler. We just need to ask two questions of any motoring offence - is it a victimless crime and if so are victims really likely if nothing is done. If it is a crime with a victim then that's that - it needs to be addressed. If there was no victim some would argue that there has been no crime, but then that would ultimately allow a combination of recklessness and luck (or even malice and incompetence) to go unchecked. If victims are likely, as with a driver impaired through alcohol (as opposed to being under or over an arbitrary limit), then there should be some punishment. I feel we're probably in the right area there as things stand - just that currently we're letting some go who should be prosecuted and prosecuting others who are not impaired.

Re seatbelts. If there's a crash and the unbelted driver is flung into a passenger wearing their belt, injuring or killing the passenger, doesn't the driver bear some responsibility? In fact, if a single vehicle accident it could be all the responsibility? I'd suggest that a reasonable law might be that all occupants including the driver should wear belts if there are two or more people on board. When it's driver only it should be up to the driver whether or not they choose to wear it. I'm open to the idea that taxi drivers could keep their exemption, and in compartmented taxis possibly single passengers could also be exempted since the driver and passenger would be shielded from each other.

Dick Puddlecote said...

Don't flog your guts out worrying too much about seat belt laws (the supposed success of which is one of the statistical nonsenses of modern times btw), because the Aussies, I reckon, will be first to make protective headgear for car occupants mandatory. Serious.

Angry Exile said...

Why am I not surprised? Still, nearly ten years on and there's no noise about actually going through with it. I wonder if further research found that driving with your head covered in bubble wrap made you more likely to crash in the first place. Or possibly drivers being scum take low priority behind peds and cyclists. Or it would be a law for the individual states and none want to make the first move. Probably a combination, but since they've made electronic stability control mandatory on new cars from next year (I think) I wonder if it's mostly that they're going down the active safety route of avoiding the crash instead of passive devices like more belts and bags.

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