Driver freed by testing bungle

A REPEAT drink-driver has avoided jail after he was let off a high-range drink-driving charge on a technicality.

Gerard Francis Cotten, of Ulmarra, was stopped for a random breath test on the Pacific Highway at Ulmarra in July.

It resulted in the 51-year-old facing his seventh drink-drive charge and his fourth for high-range drink-driving.

His last conviction, in 2002, brought nine months in jail. If convicted of drink-driving again, another jail term was likely.

According to facts tendered to the court, police pulled Cotten over in Ulmarra and asked him if he'd had anything to drink.

Cotten allegedly said he had. When asked how much, police said Cotten replied: “Enough to be well over the limit.”

Noticing he smelt of alcohol and had bloodshot eyes, the police officers attempted to give him a roadside breath alcohol test.

The test kit failed to operate and police took him to Grafton Police Station, where he was administered a formal breath test.

Cotten was found to have a reading of 0.175 - more than three times the legal alcohol limit.

According to police, he told them he drank 12 stubbies of beer in the four hours before he was pulled over. He was charged with high-range drink-driving, unlicensed driving, and driving an unregistered and uninsured vehicle.

Cotten pleaded guilty to the charges. It wasn't until some time later that his solicitor, Neil Johnson, read the police facts and realised there was no roadside test. Mr Johnson applied for Cotten's plea to be changed to not guilty. He also asked that the charge be dropped, arguing police were not authorised to do a breath analysis at the station.

Mr Johnson argued a breath test could only be administered if a person had failed a roadside test or refused to undergo a roadside test. The argument obviously worked as police withdrew the high-range drink-driving charge in Grafton Local Court last Monday.

Cotten was convicted of the other charges and fined $700.



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