Cops using wrong charge for drunk driving

- former traffic magistrate McDoom

Former traffic magistrate Moenuddin Mc Doom says the police have been instituting the wrong charge as it relates to drunk driving and it is only if the harsh penalties provided in the law are applied that this growing scourge can be stopped.

Mc Doom, who is a Senior Counsel and head of the law firm Mc Doom and Associates, expressed concern that the police are only applying the 2008 amendments to the Motor Vehicles and Road Traffic Act, which attracts a small fine on conviction. More so, he says the police are charging people with being over the prescribed limit of alcohol and not driving under the influence, which is by far a more serious offence and which would attract a much greater penalty; jail time or being disqualified as a driver.

During an interview with Stabroek News, Mc Doom noted that instead of charging persons with drunk driving police are instituting a charge related to being above the legal limit which are two different things as they represent different levels of seriousness.

“What vexes me all the time is that this thing is being used to tap people on the wrist. You have got to jail people…you have got to disqualify people,” he stressed while adding that there is a reason why developed countries treat drinking and driving with the seriousness it deserves. He called a vehicle a weapon as if it is used improperly it can result in serious injury and death.

Mc Doom referred to the existing laws which relate to alcohol consumption.

Section 39 (1) of the Motor Vehicles and Road Traffic Act state, “Any person who when driving or attempting to drive, or when in charge of, a motor vehicle on a road or other public place is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, shall be liable on summary conviction to a fine of not less than thirty thousand dollars nor more than sixty thousand dollars or to imprisonment for twelve months, and in the case of a second or subsequent conviction to a fine of not less than forty thousand dollars nor more than eighty thousand dollars and to such imprisonment as aforesaid.”

Section 39 (2) of the law states, “A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, be disqualified for a period of twelve months from the date of the conviction from holding or obtaining a licence.”

The 2008 amendments, the Senior Counsel said, provided some additions to what is contained in Section 39.

One such, Section 39A(1) speaks about a driver’s breath or blood alcohol levels exceeding the prescribed limit and such an offence attracting a $7,500 fine on conviction. The amendment goes on to state that after two consecutive offences the driver is disqualified for a period of twelve months and on a third conviction permanent disqualification.

The other amendments to the section speak of the breath test, breath analysis, laboratory tests if a blood sample has to be taken due to the person’s inability due to his physical condition to do a breath test and the refusal of a driver to consent to taking or providing a sample.

Accordingly, Mc Doom said, the 2008 amendments speak nothing about being incapable. “That is the problem and that is where I feel the error is. This is why these people are driving and paying these small fines. [If] I am on the road and somebody drives under the influence of alcohol and crashes into me or a relative you can’t talk about $7,500,” he said before stressing that such an amount is too small.

He posited that persons ought to be charged under Section 39 (1) if the person is determined to be incapable of driving if they are drunk and not under the amendment Section 39 A (1). “Under the amended Act you don’t have to go to jail, you don’t get disqualified unless it is a second offence but there must be a deterrent because what is happening is people are drinking all over the place and driving,” he stressed.

He recalled that he had raised his concerns with former traffic chief Neil Semple prior to his retirement but was told that the law had changed and that was what the Traffic Department of the Force was using. Mc Doom said Semple then presented him with a copy of the amended act. “He was saying that the old law has been superseded by the new law,” Mc Doom said, while noting that from his understanding this is not the case.

He said he believes the police are looking only at the amendments because “that is the easiest way to go.”

He insists, “Being incapable is a serious matter. If you are incapable it’s like a gun. You can kill people. I don’t know of anybody who has been charged like that for the longest while.”

Mc Doom recalled that during the few months in 1970 that he sat on the bench, policemen trained in noticing the signs of drunk driving appeared before him to give evidence. He said that a traffic rank ought to know the smell of alcohol, know about the dilatation of a person’s pupils and must be able to recognize other signs of being under the influence such as the inability of a driver to walk in a straight line and staggering.

“Things of that nature make you incapable of driving but what has happened is the police are now charging the people when they are in that condition with this lesser offense and this is wrong,” he said.

He said the amendments make provisions for a driver suspected of being under the influence who for one reason or the other had to leave the scene of an accident to seek medical attention. He also recalled a case where a judge was involved in a traffic accident but did not take a breath test because of problems with his breathing. He said the amendments outline what can be done in these circumstances.

During the latter half of last year the police started a campaign in which they began publishing the names and photos of persons found guilty of drunk driving. Asked about this, Mc Doom told Stabroek News that it must be understood that the police are not charging people with drunk driving but rather with being above the limit.

This, he stressed, is not drunk driving. “I can be above the limit and be driving properly but when I am drunk it is a different matter. I am incapable. The law speaks about being incapable of driving. If you are incapable of driving then you shouldn’t be in the driver’s seat,” he said.

He noted too that another difficulty that the police will have with Section 39 (1) and (2) is that they must have the evidence to support the charge.

“My position is that if you are charged under the influence of drink you must go before the court and if convicted you must be disqualified or sent to jail,” he said adding that this issue ought to be taken seriously. He said drivers ought to understand that they have a “lethal weapon” in their hands and must not be allowed to get away with a $7,500 fine.

Mc Doom told Stabroek News that during yesteryear the police had legal advisers and this ensured that the laws were followed and applied in the right manner.

Asked if he plans to engage the new traffic chief on this matter, he responded, “I don’t have a problem speaking to him, but I think that this needs to be corrected immediately because if a man knows he is going to jail, if he knows that he will be disqualified on the first offence, he will drive differently.” He recalled that he had sent persons to jail for drinking and driving.

“I disqualified a man [who was driving under the influence] at 8 am…,” he said, adding that the man was a taxi driver. “People ought to take their driving more seriously,” he said.

Mc Doom had earlier vented on this issue in a letter he wrote to the Guyana Times.