Drunk driving charge with no EBA test?

[swansongnz]

Im just wondering if the police can actually charge you for drunk driving, when they havent done an EBA test on you. I wouldnt of thought so, and is someone signing a statement that says you were drunk, enough to lay the charge without any test being done?

[Ixion]

Yep. They can. Unusual, but.

EDIT:

Sect 11 of the Lanfd Transport Act 1998 lays down the law about EBA , etc

But Sect 12 just says



Persons not to drive while under influence of alcohol or drugs
A person may not drive or attempt to drive a motor vehicle while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.


So, yes they can, under Sect 12. But it's unusual. If you are being charged with this see a lawyer ASAP. And don't admit ANYTHING.

[swansongnz]

Ok. Does that still stand when the person wasnt even arrested by the cops, that they had gone into the police station the next day about their car being impounded, then being arrested for sustainded loss of traction, that they had done the night before. And the cops had taken a statement from the house owner, saying this person was drunk the night before when they did this when they went to impound the car?

[Ixion]

IANAL. But I would say that if the cops think they can make the charge stick, yes. But I would think any half way competent lawyer could tear that case to shreds. How qualified is the house owner to judge degrees of intoxication? But then again, if he is a credible witness and prepared to swear that the accused had sculled 10 bottles of bourbon in the space of an hour ?? BTW, I don't think you can be arrested for sustained loss of traction? (Might be wrong on that).

Basically: driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle is illegal. Full stop. And properly so.

The rest of the argument is just about how the cops establish the two points of "under the influence" and "incapable". They may do that in any way that they can. Just that usually the EBA route is the easiest and least susceptable to clever defense lawyering.

[Jantar]

The police can lay a charge based on this, but any competent defence lawyer would get it thrown out fairly quickly. That is unless the person laying the complaint and making the statement is qualified to say that someone is intoxicated. (eg he is a qualified medical practioner).

[FJRider]

Ok. Does that still stand when the person wasnt even arrested by the cops, that they had gone into the police station the next day about their car being impounded, then being arrested for sustainded loss of traction, that they had done the night before. And the cops had taken a statement from the house owner, saying this person was drunk the night before when they did this when they went to impound the car?

If any of the charges are disputed , get a lawyer. They may need to go to court to fight it.

[firefighter]

So you were drunk or no?

[swansongnz]

Thanks all, i told him to get a lawyer, since it all seemed a bit wrong, and to top it off he wasnt even drunk. Was an off duty cop who saw him do a burnout. Nothing was done till the next day when they just turned up and took his car. He wasnt notified or anything, found out when he went in to see where his car was. And the chick who ended up arresting him was the off duty cop who saw his car doing it. Ok fair enough he gets done for the burnout. But to be done for D.I.C when there really isnt any proof seems a bit off, i even went to pick him up because he had had a couple of beers and didnt wanna drive home.

[Winston001]

Sounds defendable. Will cost $1500 probably to defend, maybe more for an experienced criminal lawyer. Not a case he'd want to try and defend himself. Expensive burnout. :eek:

[Mole_C]

Could be charging him with driving whilst incapable, not EBA. Don't need tests for that.

[Winston001]

Could be charging him with driving whilst incapable, not EBA. Don't need tests for that.

Exactly. This can't be an EBA prosecution. Simply a charge of driving while under the influence of drug or alcohol - as Ixion has already pointed out. The judge needs to hear evidence of the offenders driving plus any other evidence of his drinking if that's available. However erratic driving might be enough. Still defendable on what we've been told so far.