State v Prasad [2012] FJMC 159; Traffic Case 15.2012 (16 July 2012)

IN THE FIRST CLASS RESIDENT MAGISTRATES COURT
WESTERN DIVISION
AT NADI

NADI TRAFFIC CASE NO. 15 OF 2012

BETWEEN:

STATE

AND:

ASHISH PRASAD

Sgt. Naidu for prosecution

Accused in person

Date of Judgment: 16. 07. 2012

JUDGMENT

[1] The accused was charged with one count of driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit. The charge reads as follows:-

CHARGE

Statement of Offence

Driving a Motor Vehicle Whilst There Was Present In the Blood a Concentration of Alcohol in Excess of the Prescribed Limit: Contrary to Section 103 (1) (a) and 114 of Land Transport Act, 35 of 1998.

Statement Of Offence

ASHISH PRASAD on the 1st day of January, 2012 at Nadi in the Western Division drove a motor vehicle registration number CN 215 in the Beddoes Circle Road, Namaka whilst there was present in 100 millilitres of his blood a concentration of 94.6 milligram of alcohol which is in excess of the prescribed limit.

[2] He pleaded not guilty to the charge that the matter proceeded to trial.

EVIDENCE OF THE PROSECUTION

At hearing, the prosecution led oral evidence of three witnesses namely PC Amlesh (PW1), PC Navin Kumar (PW2) and PC Vinesh Prasard. The prosecution also marked and produced three documents. They are PW1's statement form (Ex-1), Dragger Alcotest Result (Ex-2) and caution interview of the accused person (Ex-3).

[3] I now state what each witness stated in court. A summary of evidence of PW1 is as follows:-

"I am the arresting officer. I have 7 years service in Fiji Police Force. I am based at Namaka Police Station in Uniform Branch at the moment. I was at the Traffic Branch before. In January I was in Traffic Branch. I do operation on road side for drunk and drive. I attend accidents. Normally we do operation. On the 1st January 2012, I was doing 12hrs traffic duty. We were conducting breath test in several places like Martintar. I spotted the Accused driving a vehicle. I checked him with Breath Test Machine. The Result was 39 micrograms. It was 04.37hrs. The machine was calibrated. We have certificates but not here. It is in Lautoka. We arrest Accused when the result is above the prescribed limit. The Accused was above the prescribed limit. I arrested the Accused Ashish Prasad. He was smelt of Liquor. His eyes were red. He was stable. He said he was coming from Purple Haze Night Club. I gave my statement on the same day. He marked and produced his statement as Exhibit 1"

[4] PW1 was cross examined by the accused. Under cross examination PW1 stated that:-

"He said there was no result when he tested the accused first time at the road side. He denied when it was put to him the result was 32 for the first time. He said that the officer told him to test the accused again when he (witness) complained that the Accused is not blowing properly. PW1 told the machine has been calibrated the certificate is in Lautoka. He admitted the machine may show up and down. When it was put to him that the second time he was not given a new blower he (PW1) denied. He told that he tested the accused two times on the road and 3rd time at the Nadi police station.

[5] In Re-examination PW1 stated that there were two readings. The second reading was 39.00mg which is correct. If the result is above the prescribed limit we have to test the Accused at the Dragger Machine at the Police Station.

[6] A summary of the evidence of the PW2 is as follows:-

"I have 10 years service in Fiji Police Force. I am currently based at Nadi in Traffic Branch. I have 6 years service in Traffic duty. On 01/01/12 I was on duty. We conduct road test to avoiding accident and check the vehicles. I have authority to test by road side machine. Other machine is kept in station because of air conditioning. I was authorized by Police Commissioner. On 01/01/12 I tested the accused on the Dragger Machine. I tested once. I have the result. (Result shown) The reading was 43 mg. 37 is the prescribed limit. 43 mg is in excess. The machine will vary at different times. We use two machines. The Dragger Machine Result is correct. It is calibrated but the certificate is in Lautoka."

[7] PW2 was tested in cross examination by the accused. Under Cross Examination PW2 stated that:-

"The machines are properly calibrated. He was pretty sure of its reading variations due to digestion. He said the prescribed limit was 37mg. He answered that the machines are calibrated to the question that the reading letters and machines are not calibrated. He told there may be different readings because of lapse of time. He told that the result is there when it was put to him that the machine was not giving actual result."

[8] In Re- Examination PW2 told that he was sure the machines are properly calibrated. 35 mg is the prescribed limit. The result is above the prescribed limit.

[9] The summary of the evidence of the PW3 is as follows:-

"I am based at Namaka Traffic Unit. On 01/01/12 I was on duty. I interviewed one Ashish Prasad in English. His is in Accused Box. I gave his rights. I put the allegation of Drunk and Drive. I signed. The Accused also signed. (He marked and produced the caution interview as Ex-3)."

[10] PW3 was cross examined by the accused. In Cross Examination PW3 denied that the first reading was 32mg. he told that at any time the accused did not mention that the first reading was 32mg.

[11] In Re- Examination PW3 stated that the accused did not tell him that the first result reading was 32mg.

DEFENCE CASE:

[12] After finding a case to answer the court explained to the accused his rights to give evidence and call witnesses to give evidence on his behalf.

[13] The accused told that he would prefer to give sworn evidence and also informed that he has a witness to call to give evidence on his behalf, namely Avnil Narayan.

[14] The summary of evidence of the accused is as follows:-

"When I was 1st tested I saw the result. Police stopped my vehicle. He asked to park my vehicle and asked me whether I had drink. I said yes with limit. Then he asked me to blow. I saw on the screen. The reading was 32. He went inside. After few minutes he came and asked me to blow. He did not give me a fresh mouth piece. 2nd time it was 39 mg. I asked why different reading. He said you are talking too much. I must take you to the station.

I was very sober. I was in good condition to drive. I told him I would arrange my own transport. I was travelling towards Namaka. There I wanted to stay over night and go the following morning. He took me to the Police station and tested me. It was 43mg. Then again I asked why the different reading.

I was interviewed in the morning. I was brought to Court and bailed out. I am not agreeing with the value. The machines were not calibrated. They did not give me fresh mouth piece for the second time. (Accused gives clear evidence without any hesitation).

I seek justice in the case. I was not exceeding the prescribed limit. The Officer did not allow me to arrange my transport. He told me I was drunk.

I say the machine was not properly calibrated. Machines are not giving accurate result. I have a clear record."

[15] Under cross examination the accused stated that he studied up to Form 7 and have fair knowledge. He also told that he does not agree with the result of the machine at the police station which was 42mg. He further said that he is disputing the result because it was after 30 minutes and they took minutes for my test. It was 4.00am they arrested me. He left the night club 3.00am. He admitted taking 4 glasses of Fiji Bitter.

[16] In re-examination the Accused told that he is not agreeing with the results as they are unsure.

[17] The summary of evidence of DW1 is as follows:-

"Accused had 2 – 3 glasses of drinks that night. He was driving towards Namaka. We were stopped somewhere in Namaka at the check point near the LTA building. Police asked him about the drink. He said yes. Police asked him to park the vehicle and come for the test.

He asked him for the 1st time, the result was 32 mg. I saw the result myself. 2nd time I did not see the result. They told me to move away. After 2nd test, they took him to station. Then I left. He was at the station.

Accused was in good condition to drive. He was sober. Maybe 5 minutes drive to station from the place where they stopped."

[18] Under Cross Examination DW1 stated as follows:-

- "He is my close friend. We came together to court. We did not discuss the evidence to be given in court.

- I saw the 1st result was 32 mg by myself. He had 2- 3 glasses of drink. After 3 glasses we left.

- I went at 10.00. He came at 1.00. After midnight we left the nigh club.

- There was a table we were sitting. He did not stay for long.

- I had few drinks. I was sober.

- I don't agree he had more than 3 glasses. Most of the time I was with him.

- I was sitting at the back of the vehicle".

- He got off the car. I came with him. I saw the test. I was ½ metre away.

- I saw the reading, I was not drunk.

- I am not saying what he told me to tell the Court. I am telling the truth.

- I am not lying in Court.

[19] In Re-examination DW1 stated that the accused had few drinks and he did not drink continuously. He was able to see and walk.

CLOSING SUBMISSION OF THE PROSECUTION

[20] A summary of the closing submission of the prosecution is as follows:-

"Evidence is before the Court. PW 1's evidence is clear. PW2's evidence is also clear. The Accused has made statement in caution interview. That was voluntary. We have proved our case."

[21] A summary of the closing submission of the accused is as follows:-

"I am not guilty. There are many different readings in the result. The machines are not properly calibrated. I totally disagree with the result. Still I haven't seen the certificate that the machines were calibrated. They just said machines are calibrated and have certificate. My witness (DW1) gave clear evidence. I have never been to this. I was sober."

THE LAW

[22] Section 104 of the Act provides:-

104. - (1) A police officer may require –

(a) a person in respect of whom section 102(2) applies;

(b) the driver of a motor vehicle that has been required to stop under subsection (2); or

(c) a person the police officer believes on reasonable grounds has within the preceding 2 hours driven or been in charge of a motor vehicle when it was involved in an accident,

to undergo a breath test or breath analysis according to the procedures prescribed in the regulations:

Provided that –

(a) no breath test or analysis shall be conducted after 2 hours have elapsed from the time the driver has been driving or in charge of the motor vehicle unless the breath test or analysis could not have been carried out earlier due to the condition of the driver;

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

(2) A police officer may stop any motor vehicle for the purpose of conducting random breath testing in accordance with operational instructions for such testing issued by the Commissioner of Police.

[23] Section 103 of the Act provides for an offence of driving

"3. (1) For the purpose of section 103(1) (a) the prescribed concentration of alcohol is 80 milligrams of alcohol in 1000 millilitres of breath.

(2) Evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by reference to a sample of the person's blood taken with his or her consent, or by reference to the reading on a breath analysing instrument in accordance with sub-regulation (3).

(3) A reading or a breath analysing instrument in microgrammes of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood."

ANALYSIS OF EVIDENCE:

[24] The accused has been charge with driving a motor vehicle while there was present in the blood a concentration of alcohol in excess of prescribed limit contrary to section 103 (1) (a) of the Land Transport Act [the Act].

[25] Pursuant to section 103 (1) (a) the prosecution must prove three elements namely:

(i) The accused;

(ii) Drove the motor vehicle registration number CN 215;

(iii) While there was present in 100 millilitres of his blood a concentration of 94.6 milligrams of alcohol which was in excess of the prescribed limit.

[26] Elements (i) and (ii), as outlined above, are not disputed by the accused and therefore it is not necessary to discuss these elements in this analysis.

[27] However the accused strenuously disputed the third element of driving the car while there was present in the blood a concentration of alcohol in excess of prescribed limit which is 37. The accused stated that the Alco Test Machine and the Dragger Machines are not properly calibrated and the results are not accurate. He also stated that when he was first tested on the road side he clearly saw the reading on the screen which was 32.

[28] As stated above, PW1 told that when he stopped and checked the accused with the Alco-test machine along the road side the result was 37mg. According to accused when he was tested first time the result was 32mg which he clearly saw on the screen. PW1 under cross examination maintained that there was no result when he tested the accused first time. PW1 further said in evidence that on the instruction of the officer he tested the accused second time then the result was 37. It is to be noted that the accused was tested with the Alco-test machine at the road side two times. PW1 offered no explanation as to why there was no result in the first test of accused.

[29] PW2 in evidence stated that he is qualified to test an accused with the dragger machine and he has a certificate for that. He also told that the dragger machine at the police station and the machine used at the road side are calibrated and have certificate for that but the certificate is not with him at the moment but it is in Lautoka. According to PW2 he tested the accused with the Dragger machine at the police station once the result was 43 and the Dragger machine result is correct. He said that he is qualified and have authority to test an accused with the Dragger machine and the Alco-Test machine and the Dragger machine are calibrated. However, he could not produce in court his authority to perform dragger test and the certificate to confirm that the dragger machine is calibrated.

[30] The accused gave sworn evidence and called one witness (DW1). The accused in evidence stated that when he was tested on the road side he clearly saw on the screen the first result which was 32. DW1 also confirmed this. DW1 who was beside the accused at that time told in court that he was close to the accused and saw the first result on the screen which was 32. He also told that he could not see the second result as he was bit away on the request of PW1. He denied in cross examination the prosecution's assertion that he told whatever the accused told him to tell in court.

[31] I should say that the accused and DW1 gave clear evidence and they answered cross examination questions at once without any hesitation or delay. Further, defence evidence was not shaken in cross examination.

[32] PW2 told to court that he is authorized by the police commissioner to test by road side machine but he did not produce any document to establish this. PW2 also said that the machines are calibrated but the certificate is in Lautoka. The prosecution did not take any attempt to get the certificate of calibration. The accuracy of the result was strongly challenged by the defence. PW2 merely told in court that the dragger machine result was correct. PW2 is not an expert witness to confirm the accuracy of the result of the dragger machine. The court cannot rely on PW2's evidence in relation to the correctness of the result. It has created a reasonable doubt.

[33] It is the duty of the prosecution to prove all elements of the charge beyond reasonable doubt. In this case the prosecution was not able to prove the crucial element of the charge that there was present in the blood a concentration of alcohol in excess of the prescribed limit.

[34] I therefore acquit the accused from the charge of driving a motor vehicle while there was present in the blood concentration of alcohol in excess of the prescribed limit, contrary to section 103 (1) (a) and 114 of the Land Transport Act, 35 of 1998.

M. H. Mohamed Ajmeer
Resident Magistrate

At Nadi
16th July 2012