Tuesday, August 11, 2015

Australia: Man charged with drink-driving wins $125,000 payout because he made it home before cops could breath test him

A MAN who beat a drink-driving charge was awarded $125,000 ­because police tried to force him to take a breath test at his home.

Real estate agent Bernard Nash was tailed by an officer as he left the Shelly Beach Golf Club, on the Central Coast, and drove 150m to his house at Bellevue St.

Highway patrol Senior Constable ­Michael Hicks, who was driving in the opposite direction, did a U-turn and gave chase, suspecting the 53-year-old was over the drink-driving limit.

When he caught up, Mr Nash had already parked in his driveway.

Constable Hicks pulled into the driveway and said “Just here sir” and “You’re under arrest”.

Mr Nash was heading down the side of his property when the officer ran towards him, put him in a “bear hug” and told him he was under arrest.

The officer then wrestled Mr Nash to the ground and pinned him with his knees before threatening to use capsicum spray.

Mr Nash did not give a breath test but was charged with driving under the ­influence and resisting arrest.

However, the law says police cannot force suspected drink-drivers to take a breath test at their home.

Mr Nash beat the charges in Wyong Local Court and then sued the state over the incident, which occurred on October 13, 2011.

In a judgment published last week, Judge Judith Gibson ruled in NSW District Court that the incident amounted to wrongful arrest and malicious prosecution and ­ordered the state to pay Mr Nash $124,958 in damages.

Judge Gibson said the fact Mr Nash was on his own property meant he didn’t have to take a breath test.

The other issue was that Constable Hicks had no evidence that Mr Nash was drunk or had committed an offence, Judge Gibson said. This left the officer with no legal reason to arrest Mr Nash.

The court heard that Mr Nash said he was not drunk and had three light beers while he was at the club.

The precise time the officer turned on his siren and lights was also “hotly contested”.

This was because Mr Nash could not legally ignore the officer’s order to pull over.

Mr Nash told the court he did not see the police lights nor hear the ­sirens. Constable Hicks was “never sufficiently close to Mr Nash’s car to ­activate the sirens and lights”.

The judge awarded Mr Nash $70,000 for malicious prosecution, $25,000 for wrongful arrest, $25,000 for assault and battery and $4958 for special damages.

A police spokesman said they were not looking to appeal. Constable Hicks is still working as an officer.

Original report here

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