Do you have a question about criminal law offences?

IT IS FREE TO ASK
OR
SELECT Y0UR STATE
OR
SELECT Y0UR STATE

Charges of drink driving and negligent driving occasioning grievous bodily harm have been lodged against the accused

A man who was driving his son home from soccer practice crashed his van into a pole in Kemps Creek, a western suburb of Sydney. At last report, the 8-year-old boy was in critical but stable condition. We extend our best wishes to the boy and hope for a full recovery.

According to news reports, the driver (whose injuries were minimal) has been charged with mid-range drink driving and with negligent driving occasioning grievous bodily harm. An explanation of those offences might benefit NSW residents who are following the story.

Negligent driving occasioning grievous bodily harm

Section 117 of NSW’s Road Transport Act 2013 (RTA) makes it an offence to drive a motor vehicle on a road negligently. Courts have defined negligent driving as a failure to follow the same standard of care that an ordinary driver would follow under the same circumstances. In simple terms, negligent driving means careless driving.

The offence is more serious when the negligent driving causes grievous bodily harm. Grievous bodily harm includes permanent or serious disfigurement. In addition to a fine, the maximum penalty for causing grievous bodily harm by negligent driving is 9 months imprisonment for a first offence or 12 months for a second or subsequent offence.

Whether negligent driving caused the boy’s harm depends on the facts. The court must consider such factors as the condition of the road, the presence of other traffic, and obstructions or road hazards. The driver is presumed innocent and remains so unless and until his negligence is proved or admitted in court.

Mid-range drink driving

Driving with a prescribed concentration of alcohol (PCA) is an offence in NSW. The PCA depends upon the kind of licence the driver holds. For an adult driver with an unrestricted licence, section 110 of the RTA prohibits driving with a blood alcohol concentration (BAC) of 0.05 or higher.

The RTA divides penalties for drink driving into three groups. The low-range penalty applies to offences involving a BAC of less than 0.08. Mid-range penalties apply when the driver’s BAC is at least 0.08 but less than 0.15. High-range penalties apply to offences with a BAC above 0.15.

In addition to a fine, the maximum penalty for a mid-range offence in NSW is imprisonment for 9 months in the case of a first offence. The maximum increases to 12 months for a second or subsequent offence.

Blood alcohol curve

News reports state that the result of a breath test administered at the scene of the crash was 0.132. When the driver was tested again at the police station, the reported test result was 0.087.

There are two possible explanations for the discrepancy. One is the difference in the testing devices used. At the scene of the crash, the test was probably administered with a handheld device. The breath analysis instrument used at the police station is a more sophisticated device that is generally considered to be more accurate.

In addition, the driver may have been on the downhill slope of the blood alcohol curve between the two tests. Beginning with the first sip of alcohol, BAC constantly changes, depending on whether the body is absorbing or eliminating alcohol. BAC may increase for a short while even after drinking ends, as alcohol in the stomach continues to be absorbed into the blood. At some point, alcohol begins to be eliminated from the blood. Charting BAC creates a curve as BAC rises and falls.

The news stories do not specify how much time passed between the two tests. While the difference between the two tests is substantial, a long delay between tests that resulted in alcohol being eliminated from the driver’s blood could account for the smaller BAC in the second test. Both results are within the mid-range for PCA offences, although the 0.087 result is closer to the borderline that separates low-range from mid-range.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

Ask a Question - It Is Free