Parking defence drives appeal
A JUDGE will decide if a Torquay mother of two was in control of her car when police breath-tested her last year.
The matter is central to the drink-driving conviction appeal of Melissa Charles who blew 0.11 on April 12 last year.
Charles was spotted by police asleep behind the wheel of her car on The Esplanade, Torquay, about 1am after she had drunk “four or five” drinks at the nearby Torquay Hotel.
Charles told the Geelong County Court yesterday she had about two drinks at home hours before the incident, and left the hotel about 10pm.
“I drove to The Esplanade. I turned my car off and sent a text (message) to my friend.”
Charles claimed she later restarted the car because she was “cold” and “wanted to activate the heater and heated seats”.
“My intention was to sit in the car and sleep,” she said.
The court heard the car’s engine and headlights were on when police spotted Charles with bloodshot eyes.
Charles’ barrister, Brendan Murphy, QC, said there was no evidence at the time of the breath test the police officer who performed it, Acting Sergeant Trent Mellington, had formed the opinion his client was in control of the vehicle.
“You never made a single solitary note about her intention to drive,” Mr Murphy told Sgt Mellington.
A recording of the exchange, taken from a camera worn by Sgt Mellington and played to the court, reveals he did not tell Charles he believed she was in control of the car.
Defence claimed that was a requirement before a roadside breath test could be performed.
Crown Prosecutor Allan Sharp said Sgt Mellington thought Charles was driving home at the time because the engine was running and she was on a “direct route” between the hotel and her home.
Charles told the court she believed she’d driven to The Esplanade over the limit.
But Mr Murphy said it could not be concluded that Charles’ blood-alcohol concentration was higher than 0.11 at the time she drove from the hotel to The Esplanade.
He said BACs had the ability to fluctuate rapidly like “shark teeth”.
Charles was convicted, fined $800 and disqualified from driving for 11 months by the Geelong Magistrates’ Court last year.
Judge Gerard Mullaly adjourned the appeal to March 24 when he is expected to hand down his decision.