A magistrate has excluded evidence in a drink driving case after finding that police used unlawful force when dealing with the accused.
Magistrate James Lawton labelled the behaviour of the officers 'deplorable' and that their conduct needed to be denounced.
He held that evidence of the defendant's failure to supply a sample at the road side should be excluded.
He also ordered his reasons be sent to the ACT Chief Police Officer.
Drink Driving Allegations
Two officers had followed the man after he allegedly ran a red light. Body camera footage of the vehicle stop and subsequent arrest was played in court. Officers claimed they suspected the man was drink driving.
One of the officers can be heard saying, "Out of the car mate...Turn it off, turn it off, turn it off. Get out of the car. Out, out. Hands behind your f***ing back now, c***."
It showed officers pull the accused from the vehicle. They then handcuffed him and pushed his face into the gutter, while they waited for other police to provide a breath-testing kit. The accused cries out in pain as the officers hold him down.
The Magistrate found the officers were aggressive and treated the accused in a cruel and degrading manner.
"They behaved deplorably, by leaving him face down in the gutter...The [alleged] offender appears frightened and disoriented."," Magistrate Lawton told the court.
Actions of Police "Outrageous"
Magistrate Lawton was scathing in his assessment of the evidence the police officers gave.
He described their claim that they were worried the man would keep driving as disingenuous.
"I consider the actions of the officers... were outrageous...There was an unlawful use of force. The evidence could have been obtained by simply leaving him in his car and waiting. The actions of these officers [were] deplorable and should be denounced."
The footage went on to show the man fail to provide a breath test and struggling to understand the instructions of police.
His Honour found that the evidence of the accused failing to supply a sample at the road side should be excluded from the drink driving case.
The accused still faces a charge of failing to provide a sample at the police station, after Magistrate Lawton found the earlier behaviour had not ruled out the second alleged offence.
Drink Driving Lawyers Sydney
There have been a number of recent examples of these charges being dismissed after an accused retains experienced traffic lawyers. There have also been a number of Section 10 for drink driving charges.
There are primarily two defences to drink driving charges that can be employed.
The first defence is known as the '2 hour rule'. This is set out in Clause 2(d), Schedule 3 of the Road Transport Act 2013 (NSW).
It explains that a police officer cannot require a person to submit to a test, analysis or assessment, or to provide a sample two hours after they were driving.
This period extends to four hours for a blood sample, urine sample and oral fluid test.
Secondly, there is the defence known as the 'home safe' rule. Clause 2(e), Schedule 3 of the Road Transport Act 2013 (NSW) sets out that a police officer cannot require a person to submit to a test, analysis or assessment, or to provide a sample at the person's home.?
Importantly, a person's home incudes any part of their property such as a driveway, front yard and back yard.
Often Police are unaware of these clauses and as such an experienced drink driving lawyer will be able to have the charges dismissed.
Sometimes, a person will attempt to argue that they were not 'driving' the vehicle. In order for this defence to be successful, you will have to prove that you were not:
(a) in control of the steering, movement or propulsion of a vehicle,
(b) in relation to a trailer, drawing or towing the trailer,
(c) riding a vehicle.
These factors are set out in Section 4 of the Road Transport Act 2013.