Man in driver’s seat lose DUI appeal
A man seen in the driver’s seat of a parked car after he had been drinking has lost an appeal against his conviction for being in care and control of the car while over the limit.
Denzil Nelson argued that prosecutors had not proved that he intended to drive the car.
But the Supreme Court ruled the Crown only had to prove that he had care and control of the vehicle, not that he had intended to drive.
Assistant justice Delroy Duncan said in a decision dated January 21: “The prosecution was required to prove beyond a reasonable doubt that the defendant intended to assume care or control of the vehicle after the voluntary consumption of alcohol.
“The learned magistrate accepted that the defendant’s breath analysis reading was 131mg of alcohol in 100ml of blood and that he sat in the driver’s seat of the vehicle.
“The learned magistrate then found that the defendant actually assumed care or control of the vehicle when he placed the keys in the ignition and turned on the headlights and the radio.”
Magistrates’ Court heard in April this year that police saw Nelson and a woman get food from Ice Queen in Paget and go to a car parked nearby at about 4.20am on Christmas Eve 2017.
Officers said Nelson, who appeared to be unsteady on his feet, got into the driver’s seat, put the keys in the ignition and turned the key, turning on the vehicle’s lights.
The officers spoke to Nelson, who admitted to having “two drinks”.
He was arrested and taken to Hamilton Police Station, where he provided breath samples which revealed he had 131 milligrams of alcohol in 100 millilitres of blood. The legal limit is 80mg/100ml.
Nelson denied charges of having care and control of a vehicle while over the legal blood-alcohol limit at his original court appearance.
He argued that he had no intention of driving and had only sat in the driver’s seat to eat.
But magistrate Khamisi Tokunbo said “the mischief and intent to drive” depended on the evidence of Nelson being in the driver’s seat with the key in the ignition and the car’s electrics activated.
Mr Tokunbo said: “The defendant had the immediate ability and intent to drive. I do not accept that he was going to vacate the driver’s seat and that the lady was going to drive and that he was sitting in the driver’s seat simply to eat food.”
Mr Tokunbo fined Nelson $1,500 and banned him from driving for 18 months.
But Nelson launched an appeal against the judgment on the grounds that prosecutors had not proved he had the intention to drive.
He argued that when he placed the key in the vehicle’s ignition and turned on the radio, the headlights came on automatically.
Nelson also argued that the Crown’s case had “factual inconsistencies”, but Mr Duncan rejected the claims.
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