#195 Caloundra DUI Work Licence

Join Wiseman Lawyers Traffic Lawyer Andrew Wiseman at Caloundra Magistrates Court as he represents a client charged with Drink Driving. Watch Andrew explain what happened in the courtroom, along with the outcome which he achieved and how he achieved it.

All right. Today, I'm at Caloundra Magistrates Court, mid-coronavirus epidemic. Clearly, the courts haven't stopped. Clearly, the fact that I'm here today, shows that the police haven't stopped breath testing people. My client was intercepted last week. He'd been at home. He wasn't in lockdown, but given that there's nothing to do at the moment due to the virus, he was at home having a few drinks. About midnight, got a call from friends saying, "We're having a bit of a get together. Come on over." He thought he'd paced himself and took that chance, drove from home to a friend's place, so it wasn't your traditional, going out to dinner and having one too many wines or going to the pub and getting it wrong. At home, like most people are at the moment during this coronavirus, having a few drinks.

All the pubs are closed, but I don't know if you've driven past a Dan Murphy's in the last few days, but Dan Murphy's is big business. So, what I'm getting at is, people aren't at pubs getting their consumption calculations wrong, or they're not at restaurants with waiters topping up their glass of wine without them monitoring how much is going in. It's people at home, bored out of their mind, sick of watching Foxtel, or whatever it is, Netflix these days, having a beer or wine at home, just wasting the evening away, and then, bored out of your mind, someone rings or texts you, "Mate, come on over," and I suppose when you've got cabin fever and someone's saying, "Come around..." Don't get me wrong.

It wasn't a wild party. It was only two or three people. I'm not suggesting he was disregarding the distancing rules and whatnot, but he was bored out of his mind. A friend said, "Come around for a beer." And as I said, he wasn't sitting at home counting his drinks or with his little measuring cup out, measuring one standard drink per hour. I'm not standing here, or sitting here, pretending that he was being a scientist with his consumption, but he was at home trying to, I suppose, avoid his boredom by having a beer at home. Friends say, "Come around," and he foolishly thought, oh well, I should be okay. I haven't been putting them away too hard. I should be right. And he wasn't obviously, that's why I'm making this video, and he was just simply intercepted driving from his house to a friend's house to catch up.

He blew mid-range, reading at 0.125, and I'll go into the outcome in a moment, but what I'm trying to get at is, when I made a video on this earlier about the Queensland police service suspending static RBTs due to the coronavirus, and the demeanour in social media and even the mainstream media in that 24-hour period was that it was going to be a free-for-all. And I laboured the point that, no, it won't be, because it's simply RBTs that aren't in operation. There's still plenty of police on the street. Most police who pull you over for speeding will have the capacity to breathalyse you, or if you reverse into a car at Coles' car park and someone calls the police, you'll get breathalysed. Don't get a false sense of security, because as I said, the fact that I'm in court today shows that, A, police are still breath testing people. B, people are still getting caught, and C, the courts, albeit at a reduced capacity, are still operating and still hearing matters.

So, yes, a lot of matters are being requested for three months, but that's more at the request of the person charged rather than a across the board rule. The status at the moment is it's the court's preference that matters be adjourned for three months without anyone actually rocking up, meaning if you've got a lawyer, they'll communicate with the court themselves. I'm not quite sure how it works if you're unrepresented, given that, obviously, I don't act for unrepresented people, I act for represented people, being my clients. But everyone who's signed up in the last week who wants an adjournment, it's just simply a matter of sending an email, and the reasons you may want to adjourn vary.

But certainly, if a client wants me to adjourn the matter, I'm not going to argue with him, especially in the current situation we're in. But at the same time, if someone's going to suffer hardship because they can't drive for work, the courts aren't going to just send you on your way, not at this stage anyway. So, what I'm getting at is my client was mid-range. He was facing up to a 12-month disqualification, [inaudible] three months. He needed his licence for work. He worked in construction, even though there's not a great deal of construction going on at the moment. I suppose you take what you can get when work's dropping off. So, he needs his licence for work. So, given he hadn't lost his licence for any reason the last five years, given his read, he was below 0.149, so it was as I said, 0.125, and given that he'd satisfied a number of other criteria that I won't go through now, he was eligible to apply for a drink driving work licence, and that's what he instructed me to do.

He wasn't self-employed. He worked for another company. So, I had to do about an eight-page affidavit up for him to sign, talking about income, expenses, family situation, what he does, why he needs his licence to do it, what happened on the day in question, which I've already gone through. I've also got to do about a four-page affidavit up for his employer sign, saying that if he can't drive for work, he'll lose his job. And I drafted all of that. Filed it all to the court prior to today. Met him at court this morning. Ran through it all. We went in when we were called, because as I said because of this virus business, it's not packed courtrooms anymore. The courtroom has the prosecutor, the magistrate, the lawyer, and the person being dealt with at that moment, then everyone else is out in the main waiting, it's raining today so no one's outside, but the main waiting area. It's a pretty quiet court day, so it's not like the lobby was full of people. There's probably only about 15 there in total, but everyone was complying with all the distancing measures.

And I'm sure that if they weren't, registry staff or security would've told them to do it. When we went in the courtroom, I went to the bar table. So, the bar table's the table that the prosecutor's at. And if you've got a lawyer, the lawyer goes to the middle and then you as the defendant is to the left. That's normally what happens, whereas today, I was directed to go to the bar table and my client was directed to stand in the back where you would ordinarily sit, waiting your turn, obviously to maintain those distances. In any event, like 80% of the work is in the drafting of the affidavit. I've been around the block enough times to know. I've been specialising in traffic law for over a decade. I've seen all the pitfalls, and once bitten, twice shy, every potential pitfall is built into my affidavits.

So, 80% of the work's in getting them right. And adding any extra information that's unique to my client, but that said, the affidavits alone won't get it over the line. I won't say there wasn't any resistance, I had to do a bit of dancing on my feet, but the point I'm getting at is, you can't just go there with strong affidavits and expect it to be given to you. Obviously, having strong affidavits helps a lot because if you go there with rubbish, you'll be laughed out of the courtroom if the magistrate's in a good mood, or yelled at if they're in a bad mood, but what I'm saying is the affidavits alone don't get it over the line. That said, 80% of our work's put into the affidavits to make sure they're bulletproof, but we still need that 20% presence to guide. Sure, you can be winning the Sydney to Hobart with the best yacht in the world, but if some unforeseen circumstance comes up, if you've got some garbage captain sailing the ship, you're not going to win the race.

So, I had to do a certain amount of talking, but it was simply me referring to the affidavit, the information within it, clarifying a few questions, and then persuading the magistrate that he was a fit and proper person to be given a second chance. Look, long story short, the application was granted. He's permitted to drive 4:00 AM to 7:00 PM, seven days. Obviously, he's not going to lose his job as a result of that. He's extremely happy. And again, life continues on, notwithstanding this coronavirus. Police are out there. Police are charging people. People are getting charged, being given court dates, and courts are still functioning and dealing with people. So, A, don't think you can get away with it. B, if you do get caught, don't put your head in the sand because your day at court will come. And if you're not adequately represented, the penalty will be not as you would hope. Stay safe. Comply with those distancing rules and don't put your head in the sand. The police are still out there and the court's are still operating. I'm Andrew Wiseman at Caloundra Magistrates Court. Thanks for watching.