Dräger follies see alleged drink driver walked free

johnboy 13 May 2010 33

From the Magistrate’s Court comes the intriguing tale of how Matthew Jon Windle hired a good lawyer to get off a drink driving charge.

It started with a red light run from Cooyong Street onto Northbourne in front of police. It followed a predictable path of slurred speech, reeking of alcohol, and some difficulty standing.

Then it all started to go wrong:

An analysis was subsequently carried out by Constable Dzido and the Drager Alcotest 7110 Mark V breath analysing instrument recorded that the defendant had a reading of 0.221 grams of alcohol per 100 millilitres of blood. A Section 41 Certificate (Exhibit A) was tendered without objection save Mr Pappas had raised, quite properly, very early in the proceedings that the defendant contested two facts:
(a) the Drager Alcotest 7110 Mark V was not an approved instrument; and,
(b) that Constable Dzido was not an approved operator.

It seems that the “a” in Drager has an umlaut. Because we are L33t we can write it like this: “Dräger”

But whomever drafted the Notifiable Instrument N12004-134 and shoved it under Bill Wood’s nose for signing was not L33t at all, and left out the umlauts.

Magistrate Cush in the end decided that this was being silly buggers, and who needs umlauts anyway. But then another case reared it’s head.

Carlos Gonzalez had a go at chucking out N12004-134 on the basis that it only approved the Drager as a screening device and not an analysis device. Something which so alarmed the ACT Government they put out a new instrument the same day the oversight was raised.

The instrument also cited the wrong section of the Act from which it is derived.

Magistrate Cush decided these problems too were silly buggers.

But the matter of Constable Dzido not being approved as an operator a year and a half after he had completed the appropriate course was something the Magistrate could not overlook and so the repeat offending Matthew Windle with a reading of 0.221gm is still on our streets.

It’s a hell of a way to run a Territory.


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33 Responses to Dräger follies see alleged drink driver walked free
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Queen_of_the_Bun Queen_of_the_Bun 1:28 pm 14 Jan 14

carnardly said :

This gem has done it again – hit and run an old lollypop lady while he was texting.

Given his no prior convictions – cough… (albeit on a technicality) and his good character he got off fairly lightly i reckon.

6 months in the big house and no licence for a few years.

He should’ve been off the road well before this though.

http://www.theage.com.au/victoria/man-jailed-for-running-into-lollipop-lady-while-using-phone-20131202-2yljl.html

And now look what’s ahppened to the lollipop lady – poor woman.
http://www.theage.com.au/victoria/lollipop-lady-witnessed-husband-die-in-oakleigh-crash-20140114-30rov.html

CraigT CraigT 8:22 pm 04 Dec 13

Who cares if the law is too poorly written to result in a convixtion in what is otherwise an open and shut case?
Far more importantly, we have homosexual marriage!!!!

Ben_Dover Ben_Dover 6:51 pm 04 Dec 13

Blen_Carmichael said :

Incidentally, don’t think there’s too much gnashing of teeth at the police station over the result. They’re probably shrugging their shoulders and saying “what goes around comes around.”

Yes, this oaf came around again..


Ms Parsons, 62, sustained a broken pelvis, broken ribs and tissue damage

http://www.theage.com.au/victoria/man-jailed-for-running-into-lollipop-lady-while-using-phone-20131202-2yljl.html

I hope he gets royally reamed while in jail.

Blen_Carmichael Blen_Carmichael 6:10 pm 04 Dec 13

Fair dinkum, I’m the first to have a shot at defence lawyers for not playing by the rules, but this backlash is unwarranted. Yes, by all means nod the head if you did the crime and feel you that you must atone by pleading guilty – you will get points for doing so. But if you there’s a loophole in there and you want to give it a run, do so. It keeps the coppers on their toes, and that’s not a bad thing.

Incidentally, don’t think there’s too much gnashing of teeth at the police station over the result. They’re probably shrugging their shoulders and saying “what goes around comes around.”

carnardly carnardly 5:36 pm 04 Dec 13

Ben – I remember one who advertises his phone number as something like 1800-drinkdrive but have no idea who it is.

but why should someone try to get off? They did the crime, let em do the time – maybe just maybe next time they might think of us poor innocents before they get behind the wheel 3/4 pished…

peitab peitab 1:55 pm 04 Dec 13

The bad guys aren’t the lawyers or the bureaucrats (although they didn’t help); it’s the guy who committed the crime the first place, and then didn’t have the guts to stand up and say “I did wrong, I’ll accept the consequences”.

Ben_Dover Ben_Dover 1:17 pm 04 Dec 13

Wasn’t there a lawyer who used to boast about his getting a drunk driver off due to the missing umlat?

I hope he gets hit and run by a drunkard too.

carnardly carnardly 12:15 pm 04 Dec 13

This gem has done it again – hit and run an old lollypop lady while he was texting.

Given his no prior convictions – cough… (albeit on a technicality) and his good character he got off fairly lightly i reckon.

6 months in the big house and no licence for a few years.

He should’ve been off the road well before this though.

http://www.theage.com.au/victoria/man-jailed-for-running-into-lollipop-lady-while-using-phone-20131202-2yljl.html

Misseur Bernard Misseur Bernard 8:42 pm 16 May 10

I agree with Misseur Radar, this fellow Pappas obviously has the talent to be appointed to the highest court in your land. In my home country of France he would go to the very top, and in the United States I’m sure he would make Supreme Court nominee – if it weren’t for his appalling haircuts

Radar Radar 5:06 pm 15 May 10

Pork Hunt said:

“I can’t wait for the howls of derision if and when Pappas is appointed an ACT Magistrate…”

I think Pappas is too good for that – surely he should be Chief Justice?

Tooks Tooks 11:03 am 15 May 10

Thankfully, this ‘man’ was pulled over when he was. Who knows what might’ve happened if he kept going through the next red traffic light.

I only hope this grub learned a lesson – other than the fact expensive lawyers can get you off on a technicality.

bd84 bd84 9:43 pm 14 May 10

The law should not be taking into account administrative errors in making judgements, there are too many cases thrown out for such stupid reasons.

It was sensible to throw out the spelling mistake argument, but if the law worked correctly, the court should not be taking into account a procedural error in filing a document, rather that the officer had been fully and properly trained in the use of the device, therefore making his use of the device proper. The only excuse that should be accepted is if the officer was not properly trained or if the system was misused.

WonderfulWorld WonderfulWorld 10:19 pm 13 May 10

PH yeah I’m thinking the same or is that just too much TV. I also thought you could request blood test.
I’m not an optimist like GG so my natural thinking is this guy will offend again.

Special G Special G 10:12 pm 13 May 10

Some people need to go back to look at how legislation comes about. Here’s the short version on how everyone fits in.

Legislature (polititians) make the laws.
Police enforce laws.
Courts interpret the laws.
Defence solicitors poke holes in the laws.

It was well within Magistrate Cush’s powers, even though Dzido hadn’t been issued the certificate as such that he was still trained and had carried out the proceedure correctly, therefore accept the drager results as evidence Windle was drink driving. Obviously he ruled that it was too predjudicial therefore threw it out.

astrojax astrojax 9:26 pm 13 May 10

There’s a difference between ‘doing what you’re paid to do’ and consciously weasling around the intent of the law so that a very clearly guilty man goes free.

no it isn’t – and especially not when you’re mssr pappas…

…not that i disagree that it is in many ways a thing of revulsion. but as long as the law doesn’t work against those with no money (ie. is generally fair and provides for the protection of rights) then that some money might acquire some more favourable result is the nature of a capitalist society and we should be thankful we don’t live where they take us out and shoot us without a fair hearing (not that i’m looking at china or anything…)

Pork Hunt Pork Hunt 6:34 pm 13 May 10

Not being familiar with the way paralytic (.221 allegedly) driver are processed, I always thought that once screened on the roadside one was taken to the cop shop and had to blow in the “big machine” which was highly accurate and used to charge one with DD.

Pork Hunt Pork Hunt 6:13 pm 13 May 10

I can’t wait for the howls of derision if and when Pappas is appointed an ACT Magistrate…

dtc dtc 4:27 pm 13 May 10

Huh, Jack Pappas was the barrister, who would have thunk it . . .

(by which I mean to say, he is THE guy you want on your side)

georgesgenitals georgesgenitals 3:33 pm 13 May 10

It’s definitely poor form that someone who did something dangerous and illegal got off scott free, but at the same time the police should really have their house in order. The guy got off because the cop who tested him wasn’t approved/certified for the testing procedure, even though it looks like he did the course and knew what he was doing.

Look on the bright side – no one got hurt, the guy who got caught hopefully got a big scare, and the police got a wake up call to check their administration, so when something big happens they’ll be in order.

Aurelius Aurelius 3:32 pm 13 May 10

I should point out that I don’t agree that lawyers should twist the law the way they do, but hey, it’s a battle between two sides, and one of those sides writes the rulebook. And if you write the rulebook and still cannot win, clearly you need to take a long hard look at yourself.
And the lawyer is paid to do a job. If the law was written better, there’d be fewer loopholes.

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