State v Dahia [2005] FJMC 11; Traffic Case No 1768 of 2004 (12 May 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Traffic Case No. 1768 of 2004

STATE

V

RAMAN DAHIA
s/o Atma Ram

Prosecution: Sgt. Wilson
Defence: Mr D Sharma & Ms Y Fatiaki

JUDGMENT

The accused has been charged under S103 1(a) of the Land Transport Act for driving with excess alcohol in his blood. The facts are not disputed by the defence.

On 28th February 2004 the accused was at a friend’s place for drinks and dinner. He consumed about 6 bottles of stubbies and left after dinner for home driving vehicle No. DU277. He was arrested by a police officer and brought to the station for testing.

He was tested at 2220 hours at CPS. The result showed 107.8 milligrams of alcohol in 100 ml of blood. He was later interviewed and charged. The arresting officer did not give evidence. It is not known if a road test was conducted or the time when the accused was arrested. According to the accused he was stopped on road side at 12.30 am.

ISSUES

The defendant has questioned the accuracy of the dragger Alcotest 7110 machine. They questioned its’ operation by PW1 and his knowledge of it’s collaboration by the operator.

I have closely examined the evidence. The prosecution has tendered a certificate under 11(2) of the Regulation 2003 of L.T.A. Act. This is prima facie evidence of the machine used for breath test was in good working condition (PW1). Now, the onus is on the defendant on balance of probability to show otherwise.

The defence has merely cross-examined the tester (PW1) but called no evidence to discharge its onus. PW1 knew the workings of the machine and its’ operation even though he did not know the machines of how the results are achieved. I do not accept that the defence has discharged its onus and prosecution entitled to rely upon the results of the test conducted in its’ alcotest 7110.

Not tested on road side.

Defence says no test on roadside is fatal. The accused has been charged under S103 1(a) of LTA Act.

Regulation 3(2) states evidence of alcohol in blood can be given by sample taken from person by his consent or by reference to the reading on a breath analyzing instrument in accordance to regulation 3. It is not necessary by statute or a prerequisite that a roadside test be carried out.

The prosecution can rely on the test conducted at the C.P.S. alone.

S104 – Time of testing

It is defence submission that accused was kept for testing and taken to CPS after 2 hours. He was detained and tested at 0220 hours.

The arresting officer did not give evidence for the prosecution. The defence evidence as to time is therefore not challenged.

Section 104 proviso (b) states

(b) "a person shall not be detained for the purposes of breath test or analysis for more than 30 minutes."

It appears that the accused was detained for longer than 30 minutes for analysis. He was also tested around the 2 hour mark. The prosecution has not shown it was due to the condition of the accused that the testing was on the border line of these proviso.

In the circumstances I reject the test results as ‘unfair to the accused" in the circumstances it was taken.

Can the accused be found guilty without the analysis?

The arresting officer did not give evidence. There is no evidence before court of the manner of driving of accused or under what circumstances he was taken from the roadside. Test was conducted about 2 hours after his arrest.

The testing officer did say that there was a smell of alcohol in defendant’s breath but that’s all the evidence against him. Under S103 prosecution has to prove the concentration of alcohol above the prescribed limit in 100 ml of blood.

I find in evidence before court, the prosecution is unable to prove its case beyond reasonable doubt. The circumstances from arrest to the testing leaves a gap by lack of evidence from the arresting officer and the time limits in the provisos.

I therefore find the accused not guilty and acquit him.

Dated this 12th day of May 2005.

(Sgd) Ajmal G Khan
RESIDENT MAGISTRATE