Anyone a criminal defense lawyer?

[Maseface]

OK, here goes maseface.

A little insight into my past......I was a cop for almost 5 years Melbourne (20 years ago) and have worked in a jail for 5 years. Maybe doesn't make me qualified but I have a reasonable idea and insight.

Before I get jumped on for what I used to do anyone, don't. It was a job....it put food on the table and paid the rent (at the time). This was 20 or so years ago. The job has changed a lot.....a real lot. Not much respect there for those in blue. I wouldn't like to be doing it now.

With regards to your situation, what state are you in, what licence do you hold and how old are you????

IMHO, .106 even for a first offence I would be honest if u got off even with just a fine. The only way you can fight it at court would be due to a technical issue or wrongful proceedings etc. U can get a solicitor/barrister and what happens is that u would front up to court, plead guilty but get the solicitor/barrister to explain your situation i.e. needing licence for work.

Unfortunately these days the courts r fairly heavy handed with drink driving.

At the end of the day u have to be as sincere and apologetic as u can.

thanks for the reply man.

Im in NSW, i've had a license for 7 years ( next week) and i've never even got so much as a parking ticket.
Unfortunately im a 23 (next week) year old male driver, so statistically this is not working in my favor.
I am already pleading guilty, and i've written my speech.
Its really up to the magistrate, it could go either way. Im thinking its going to go towards the worse direction though,

It really sucks, a suspension won't really effect me. Its everyone else that its going to inconvenience.

 

[Bluetongue1]

Maseface,
I don’t intend to labour the point but the issues brought up by others regarding your BAC reading are valid. Something is definitely incorrect. I have gone through it several times to ensure accuracy and the amount of alcohol you consumed would give a maximum possible reading of 1.01 g% if added directly to your blood stream, with no time allowed for the liver to break it down. Yet you blew 1.06 g%.

There are only three possibilities here...

1. The breath testing unit was faulty – highly unlikely as I would imagine they are regularly checked and recalibrated. But still a possibility.
2. You already had a residual amount of alcohol in your body. As you had nothing since breakfast that, that cannot be the case. However, if you did consume something like an “Up and go” drink, it has been reported that these can give a positive alcohol reading on a breathalyser. You’d have to research it if you did.
3. You drank more alcohol than you thought. You stated you are certain you only had three 425 mL glasses of full strength beer. (I worked with 5% alcohol.) The only way you could take in more alcohol then is if someone deliberately spiked your drinks. Is this possible?

On your information, you consumed 50.3 g of alcohol [= 5 1/3 standard drinks] and were tested 2½ hours later (1:30 pm start and 4 pm test). A normal functioning liver breaks down about 7.5 g of alcohol per hour, which would be about 18.75 g in that time, leaving about 31.55 g of alcohol in your system. Given 5L of blood in the body that equates to a BAC of 0.063 g%. This does not take into account absorption of alcohol by lean muscle, which would reduce that. Even if you were very small and only had 4L of blood, the BAC reading would be 0.079 g%. These expected readings are way under what you blew.

I would be working on determining why the difference between the breathalyser and the expected outcome. If you have behaved exactly as stated then you have been far more responsible than the breathalyser indicated. Get some advice from legal aide, as suggested. I cannot advise you as to whether it is worth pursing but if it were me, I would be leaving no stone unturned.

If you want to check the calculations, you need to know that BAC is measured in grams of alcohol per 100 mL of blood. Alcohol in beverages is measured in volume as a percentage i.e. number of mL of alcohol in 100 mL of drink. The alcohol is ethanol and 1 mL weighs 0.789 g. I can PM a copy of the full calcs if you decide to look at it.

Good luck, whatever.

Blue

 

[Bluetongue1]

I know we all love to hate someone but it disappoints me that there are still some out there with an archaic attitude towards police in general. Some of the crap they have to deal with, you could not blame them for becoming hard nosed. They are the target of people’s anger when they pull them up fordoing the wrong thing. Yet who do we want and expect when our house has been broken into or our car stolen or some thug has assaulted us... etc, etc. If people did the right thing, there would be little need for police.

I can remember driving past a nasty accident one time and the ambulance had just left the scene. We had to slow right down and I watched as a young officer walked away from the tangle of vehicles to a bushy part of the median strip. He then proceeded to heave his heart up. We had to move then but it was enough to bring home the reality that they are just as human as anyone else. It is tough job and I don’t think they get paid enough to do it.

Blue

 

[Ambush]

I smell battery acid or smell radiator fluid I have trouble not throwing up. What I have seen will never be forgotten.
If I could put on film what runs through my mind at times. Maybe people would not drink and drive or maybe have a bit more respect on the roads. Even some sounds I still hear are haunting.

 

[Maseface]

I think i've found out why the reading i got was higher than it should have been.
I suffer from anxiety and as a result, also acid reflux.
I failed my frist two attempts of blowing into the breath testing unit because i was suffering from acid reflux ( the reason i hadn't eaten all day)
Then as i was looking for answers i came across this.

"But GERD can cause alcohol to travel from the stomach back to the throat and
mouth. When this happens, the DUI suspect blows this "mouth alcohol" (rather
than alveolar air alcohol) into the breath machine. The machine then provides a
reading higher, often times dramatically higher, than the DUI suspect’s true
BAC. A person with a true BAC of .05 can read .20."

"If you are suffering from Gastroesophogal Reflux Disease (GERD), acid reflux or heartburn, the condition may cause a false high reading in breath analysis for blood alcohol content (the BAC test). While a blood test directly measures blood alcohol concentration, the BAC measures the amount of alcohol in the subject’s breath"

"Acid reflux, or gastroesophageal reflux disease, can greatly exacerbate the mouth alcohol problem. The stomach is normally separated from the throat by a valve, but when this valve becomes herniated, there is nothing to stop the liquid contents in the stomach from rising and permeating the esophagus and mouth. The contents—including any alcohol—are then later exhaled into the breathalyzer."

All of the above were taken from different sources and could possibly explain as to why my reading was abnormally high?
Im going to the doctors ASAP to get my condition in writing.

 

[andynic07]

I think i've found out why the reading i got was higher than it should have been.
I suffer from anxiety and as a result, also acid reflux.
I failed my frist two attempts of blowing into the breath testing unit because i was suffering from acid reflux ( the reason i hadn't eaten all day)
Then as i was looking for answers i came across this.

"But GERD can cause alcohol to travel from the stomach back to the throat and
mouth. When this happens, the DUI suspect blows this "mouth alcohol" (rather
than alveolar air alcohol) into the breath machine. The machine then provides a
reading higher, often times dramatically higher, than the DUI suspect’s true
BAC. A person with a true BAC of .05 can read .20."

"If you are suffering from Gastroesophogal Reflux Disease (GERD), acid reflux or heartburn, the condition may cause a false high reading in breath analysis for blood alcohol content (the BAC test). While a blood test directly measures blood alcohol concentration, the BAC measures the amount of alcohol in the subject’s breath"

"Acid reflux, or gastroesophageal reflux disease, can greatly exacerbate the mouth alcohol problem. The stomach is normally separated from the throat by a valve, but when this valve becomes herniated, there is nothing to stop the liquid contents in the stomach from rising and permeating the esophagus and mouth. The contents—including any alcohol—are then later exhaled into the breathalyzer."

All of the above were taken from different sources and could possibly explain as to why my reading was abnormally high?
Im going to the doctors ASAP to get my condition in writing.

Wow that is something new to me. I have had really bad reflux from when I was about 19. Hope you are being monitored with that. Both my father and his mum died from stomach cancer that was triggered from acid problems in the oesophagus.

 

[Maseface]

Wow that is something new to me. I have had really bad reflux from when I was about 19. Hope you are being monitored with that. Both my father and his mum died from stomach cancer that was triggered from acid problems in the oesophagus.

Damn man that sucks.
I've never gone and had it diagnosed, never needed to try and prove it to anyone else before.
I usually just chew heaps of quick-ez and it makes it managable.
Now that you've said that im a bit worried because i've been having bowel problems for a while now.

 

[andynic07]

Damn man that sucks.
I've never gone and had it diagnosed, never needed to try and prove it to anyone else before.
I usually just chew heaps of quick-ez and it makes it managable.
Now that you've said that im a bit worried because i've been having bowel problems for a while now.

Check it out mate!!!! My dad and his mum had really bad heartburn for years and it was blown off by doctors for a long time, my dad around 20 years ago collapsed at work and was found to have a low blood count due to stomach ulcers and through subsequent test they found cancer. He had a massive operation to remove 1/3 of his stomach and 10cm of his oesophagus, they cut all his cancer out but it took years to recover and went through very big lifestyle changes. He then had monitoring (cameras) every 6 months for years and then was reduced to one a year until recent times where they had gone to every second year. He started to have problems eating recently and was admitted to hospital for tests, he was in there for two weeks before the tests found his cancer had returned, they started radiation this time and he died about a week later, this all happened maybe 4 months ago. The reason I have put all of these details up on a snake forum is to highlight to you the importance of getting tested.

 

[Darlyn]

Interesting stuff the last few posts. Thanks

 

[reptalica]

Maseface - just another thing when u appear at court say in Melbourne for example, in the courts we have what's called Legal Aid......the role they play is to assist those that have offended to be represented, pro-bono (free of charge) and what they will do is speak a few words on your behalf.

Well worth it...just depends how busy they are.

Good luck with it.

 

[Irbz_27]

Maseface - just another thing when u appear at court say in Melbourne for example, in the courts we have what's called Legal Aid......the role they play is to assist those that have offended to be represented, pro-bono (free of charge) and what they will do is speak a few words on your behalf.

Well worth it...just depends how busy they are.

Good luck with it.

Not anymore mate... Not for driving offenses. You can chat to them but they won't jump up in front of the magi for you

 

[wokka]

Not anymore mate... Not for driving offenses. You can chat to them but they won't jump up in front of the magi for you

Isn't legal aid means tested and so a fully employed boilermaker would not qualify?
Mase face, It does sound as though there may be a way that you could cast doubt on the accuracy of the breath test. It will probably be more costly to prove than to ware the charge , however it may set precidence for others. Is there a 'Gastric reflux association" who may assist with legal representation or evidence, as it would seem to be an unknown side effect to people effected by this complaint.

 

[Wing_Nut]

Roughly 5.5 million vehicles registered in NSW. That's roughly $2.2 billion in revenue from green slips. I doubt the cost of injuries caused by car accidents in NSW is that high. Insurance companies aren't charity organisations and only have their profit margins in mind.

I have no doubt the cost of injuries caused by traffic accidents that are covered by MMA would exceed these sorts of figures. Firstly the average 396 fatalities on NSW alone would account for a one off expense in the range of 200 million dollars. For every fatality there are multiple long term rehab and spinal type injuries. The on going cost of rehabilitation for these injuries is astronomical. An example of this is a close friend of mine who was severely injured in a collision with an intoxicated driver. The expected life rehabilitation and on going care will be in excess of 10 million dollars. Given there are considerably more near fatal crashes than fatal crashes the life long liability of a scheme like this is huge and the cost of this type of insurance has premiums the average person could not afford to pay. The cost to the consumer for schemes like this will always cop criticism until you have seen first hand the real cost that is felt by the innocent victims of road trauma.

Kind regards

Wing_Nut

 

[Wilfred]

Ask for a section 10 I do not know if they will do it for a driveing afence but it's worth a try

 

[Bluetongue1]

I think i've found out why the reading i got was higher than it should have been.

I suffer from anxiety and as a result, also acid reflux.

That is both good and bad to hear. It does provide a logical explanation without changing the facts as they stand. Ask your GP to refer you to a good gastric specialist for assessment and treatment. Take the articles along to to the specialist and you can request a letter verifying the potential effects of your ailment on a breath test. At that point you can decide whether to involve legal representation. I would expect that this has been used as a defence before but it is the outcomes that are important. I know absolutely nothing about how it all works. They may still hit you. They may cancel this charge on the stipulation you must be blood tested instead of breathalysed in the future. They may even want manually estimate you BAC from what you drank in what time period. I do not know. Only someone with court experience in this area can answer those sorts of questions.

Good luck with getting it treated.
Blue

 

[Luvbuz]

Maceface, sorry to hear about the reflux condition which may have contributed to your higher than expected reading, but if the instrument used to take the reading and produce the court certificate was a Draegar or similar instrument they refuse inconsistent breath tests. The reason you are made to blow for so long is to take air from the smaller cells in your lungs. Mouth alcohol "floods" the instrument initially and then "lung" air (for want of a simple description) goes through the instrument. As the two will be inconsistent the reading should fail. You would then be asked to sit for twenty minutes to allow the mouth alcohol to dissipate. The instruments are so sensitive that if you "burp" (ie reflux), "Nose breath (like didgeridoo players) or "suck in" instead of blow the instrument shuts down that test. If you are continually unable to produce a specimen for analysis the police would take blood which gives a slightly higher reading anyway. As you seem to have been issued a breath analysis certificate stating your BAC % range either the instrument malfunctioned or the reading was deemed correct. Time for some bucks to hire a traffic expert solicitor maybe?

 

[marleehorne]

Fully licensed, no prior traffic offences apply for a SECTION 10 dismissal of charges, which means you are admitting guilt but charge or criminal conviction is not recorded. MEANING NO CRIMINAL RECORD. This charge on your criminal record is a pain in the bum it will following you for the next ten years until you can apply to have your record cleared.

You can also ask by way of punishment that your willing to attended a traffic offenders program run by your local PCYC (lawyers will usually ask to adjourn your sentencing hearing to complete this, is about 6 week program). Adjourning may not be ideal for you as you will have no license until you are sentenced.

The judge is hit or miss depending on the time of day and the number of people they have had for PCA (percentage concentrated alcohol) charges.
You should definitely give a statement of regret as you have already mentioned and raise the impact it will have on your financial circumstances.

The judge will take it into account your years of driving and traffic record. Being your first Major offence, the impact it will have on your job it may be ok.

Hiring a lawyer will cost $1500 as a minimum. A lawyer will always tell you “ the penalty is maximum fine of $2200 and or imprisonment for 9 months”

Multiple offenders don’t get prison time this is just to give you the worst case scenario and make you happy that the result they get you is the best that could have happened.

Your fine will be $1000 or less
What your hoping for is no disqualification period.

You need to make sure that if you are disqualified from driving, you request the time to start from the date of initial suspension.

 

[Maseface]

For those still interested.
i went to court today without representation.
Got a section 10, no fine or conviction.
I didn't even bother mentioning the reflux or anything.
I was very well prepared and presented and the judge ruled in my favor.

forgot to mention I was also on the phone at the time.

 

[Umbral]

Lucky, welcome to the good behavior club. You are welcome to sit next to me and hang your head in shame like the rest of us.

 

[sd1981]

Very lucky... Just a word of warning, the likely hood of receiving more than 1 section 10 in your life holds worse odds than winning lotto, or to be more precise, the Wests Tigers (my team) have more chance of winning the Grand Final this season....