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Before the district judge, the driver pleaded guilty to the charge set out above. He was fined $2,000 and disqualified from driving all classes of vehicles for one year. He appealed against the sentence.
His lawyer argued that there were special extenuating circumstances in the driver's case. These special circumstances, were as follows: the driver had been forced to drink beer by his friends, who had also splashed beer on him; the driver was the sole breadwinner in his family and needed to drive in order to make a living; the driver was remorseful.
The Court held that section 67(2) of the Road Traffic Act (Cap 276) expressly provides that a person convicted on an offence under this section shallbe disqualified from driving for a minimum 12-month period unless the court "for special reasons thinks fit to order otherwise". The "special reasons" must be reasons which relate to the facts or circumstances of the offence and not to the offender himself.
Consider, for example, the man who comes home late one night from a drunken party to find his wife seriously ill. There is no-one else around; there are no taxis easily available; even the ambulance may not be able to respond soon enough. The man decides to drive in spite of his inebriated condition, so as to rush his wife to hospital. He is stopped by the police on the way to the hospital and charged with driving under the influence. In such a case, the urgent and critical circumstances leading to his driving whilst under the influence would very likely be considered "special reasons" exempting him from disqualification under section 67(2).
Consider, on the other hand, another scenario. The same man, having sent his wife to hospital, decides to drive himself home even though he is still over the limit. He is stopped by the police and charged with driving under the influence. He cannot now say that he was compelled to drive by urgent or extenuating circumstances. Nor can he plead as a "special reason" the fact that his invalid wife depends on him to drive her around, or that he has been driving for 30-odd years without any mishap, or that his business requires him to drive. Such factors would not relate to the circumstances of the offence but to the offender himself. Indeed, a driver in such an occupation should have been more careful about not drinking and driving. A taxi driver knows, for example, that a conviction and sentence under section 67 will hurt him more than someone else who rarely has occasion to drive.
The driver argued that he had "only 99mg ethanol per 100ml of blood", which quantity was "not excessive in his individual case to be under undue influence of drink or of a drug to such an extent as to be incapable of having proper control of such vehicle".
When a driver is charged under section 67 or 68, evidence that he had at the material time a blood alcohol concentration in excess of 80mg of alcohol in 100ml of blood creates a presumption that he was incapable of having proper control of the vehicle. The onus then falls on the accused to rebut the presumption. He may not do so, however, by showing that he has a great capacity for alcohol, since the specific limit set in section 70 is plainly intended to preclude the individual accused from introducing medical evidence as to his personal tolerance for drink.
Realistically speaking, therefore, there will not be many cases where the accused can produce evidence sufficient to rebut the presumption. The provision of a specific alcohol limit is clearly intended to preclude accused persons from adducing a plethora of medical evidence as to their individual constitutions and tolerance for drink. Without such a restriction, the court in every case involving a section 67 or 68 offence would be inundated with all sorts of conflicting medical evidence.
Raffleslaw.com
