Changes to drink-driving laws could see sober drivers being convicted of an offence

South Australia recently changed its drink-driving laws, controversially allowing individuals to be convicted of drink-driving, even if they were sober at the time they were behind the wheel of a vehicle.

For example, if there has been a traffic accident, the motorists involved are usually directed by police to submit for a breath test immediately. If for some reason any of the motorists involved leave the scene of the accident without being tested, they may be called upon to do so, within hours afterwards. If any of these drivers record a blood alcohol level over the legal limit, they have previously been able to present evidence that ‘intervening drinking’ may have affected their breath analysis result. However, the Road Traffic Act has been amended to remove this provision and extend the legal presumption that the result of a person's breath analysis test is deemed to have been their blood alcohol concentration for the preceding three hours (previously two hours), and therefore are assumed to have been drink-driving.

The primary aim behind these changes has been to assist in the prosecution of repeat offenders who used the 'intervening drinking' defence as a loophole to avoid conviction - even though this scenario was uncommon.

It is important to note that police officers can now immediately disqualify a driver's licence upon obtaining a positive result, leaving motorists in this situation with no alternative but to abstain from alcohol consumption less than three hours after driving.

To defend a charge of drink-driving, individuals must review whether all legal requirements relating to the conduct of the breath analysis were complied with. This is a highly technical area of law, and it is recommended to seek advice from experienced traffic lawyers, such as Scammell & Co Solicitors, who can advise individuals charged with drink driving or any other type of traffic offence.

Our lawyers can help you navigate the justice system and represent you in any court proceedings. They will examine your situation (including the facts and circumstances surrounding the offending). They will undertake any negotiations with Police Prosecution, pursue your defence at a trial, or prepare and conduct submissions in mitigation of penalty and if appropriate, an application for no conviction to be recorded.

For further information about the services offered by a Scammell & Co Traffic Offence lawyer, please follow the link HERE

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

The use of colloquial Aussie language could constitute threatening behaviour

An Adelaide man recently lost a Supreme Court appeal against an Intervention Order placed upon him by the District Court of South Australia. The Intervention Order came about after the gentleman sent his former lawyer a series of threatening emails and letters peppered with Aussie colloquialisms that were taken as direct threats.

In one such instance, the gentleman emailed his lawyer saying he wanted to give a summons to her personally so she could “bend over and I can stick it up your arse”. In another instance, the gentleman referred to the perpetrator of the Port Arthur massacre, claiming that he “truly understood the Martin Bryant’s of this world”.

In his defence, the gentleman claimed that he was simply reverting to the use of “Australian English” and that the threats he issued against his former lawyer were misunderstood.

Offensive or threatening language is addressed under the Criminal Law Consolidation Act (SA) 1935. Regardless if the language used is intentionally threatening or not, if it is unwanted and has the purpose or affect of violating one’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person it is directed at, then it is likely to amount to harassment. Moreover, a person who threatens to cause harm to another, or creates fear that a threat will be carried out, is committing a criminal offence. The maximum penalties for someone found guilty of such an offence is 5 years imprisonment for a basic offence, or 7 years imprisonment for an aggravated offence.

At the gentleman's hearing, Justice Sandi McDonald, dismissed his appeal against the Intervention Order, saying in her summary, “it was not unreasonable to suspect that, given [the defendant's] feelings towards the protected person, that he will, without intervention, commit an act of abuse against the protected person in the future.” Justice McDonald went on to say that “the material referred to in those allegations contained offensive material constituting an abuse”.

An experienced Scammell & Co lawyer can assist clients with Intervention Order applications, variations, and revocations. They will also diligently represent either protected person(s) or defendants in any court proceedings. For further information about Intervention Orders please click here

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Losing demerit points due to driver distraction can put you at risk of losing your drivers licence. Here are your options.

Driver distraction is a major contributor to deaths and serious injury on SA roads. In an Australian Road Safety Foundation survey, a whopping 79 per cent of Australian motorists admitted to general risky behaviour. SA police figures show that between 2015 and 2019 43 per cent of fatalities and 48 per cent of serious injuries were attributed to distraction. So far, 24 lives have been lost on SA roads in 2020 (08 Aug) due to driver distraction.

Some of the traffic offences which can result from driver distraction include:

Despite the obvious dangers, a third of SA drivers surveyed admitted to regularly using their mobile phones in the illegal hand-held mode. SA drivers caught using a mobile phone while their vehicle is
either moving or stationary in traffic (for example, waiting at traffic lights) will be issued with a $544 fine, as well as a loss of 3 demerit points.

Drivers in receipt of a traffic infringement notice may wish to challenge their fine. Your options are either to defend the matter if your lawyer can identify a defence, or you can apply for a reduction of the demerit points if your offending was trifling in nature, or other proper cause exists relating to your driving behaviour.

Either way, it is important not to pay the fine, for even if you are guilty, once your fine is paid you will automatically lose the demerit points that we could otherwise have reduced to avoid a Notice of Disqualification issued by the Department of Transport and Infrastructure.

At your earliest opportunity, contact a Scammell & Co. traffic offence lawyer to discuss your options.

For further information about our traffic and driving offence services please click here.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Your options if you have been wrongly accused of speeding due to a malfunctioning speed gun

If you have received a speeding fine but believe it a has been issued in error due to a malfunction of the speed gun, you may have recourse.

If you elect to be prosecuted and defend a speeding allegation, there is always a presumption of innocence and prosecution must prove, beyond reasonable doubt, that the offence was committed. One of the things that prosecution need to prove for speeding charges is that the device used to detect the vehicle is accurate. Prosecution are allowed by the law to rely on a certificate, signed by a senior police officer, that certifies that the speed gun used was reliable and the speed alleged is accurate.

Speed guns are required to be calibrated every 12 months and a report be issued which states that the gun is accurate to within a specific margin of error. In addition, police are required to perform tests on the day that the device is used. The results of these tests are then used when producing the certificate.

In Supreme Court judgments published in July 2018 Justice Peek held that prosecution could not rely on the certificate because the daily testing by police doesn’t show that the devices are accurate to within +2/-3kph and found that the defendant did not need to prove that the device was inaccurate, but only that the daily testing done by police didn’t prove that the device was accurate to the extent claimed in the certificate.

A statement has been issued by SAPOL confirming that they are assessing the judgments “to fully comprehend if changes need to occur”. In the meantime, it is likely that defendants will continue to successfully defend speeding charges.

Image courtesy of The New Daily.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.