Court quashes driving exemptions

The Crown has successfully appealed a Grand Court decision that allowed a disqualified driver to drive during working hours.

The Court of Appeal gave its decision on Thursday. Crown Counsel Scott Wilson told the Caymanian Compass that the Legal Department would now lodge appeals against any ‘intermittent disqualifications’ handed down in Summary Court since the Grand Court’s ruling in August.

Driving offences are typically dealt with by a magistrate in a Summary Court sometimes referred to as Traffic Court. The appeal of a magistrate’s decision is heard in the Grand Court.

It is not known how many drivers will be affected by the Court of Appeal’s decision. However, at least one magistrate has said she hears requests for ‘intermittent disqualification’ almost every day that she sits in Traffic Court.

The case that led to the Grand Court decision involved a man who was disqualified for two years after pleading guilty to driving under the influence of alcohol. His blood/alcohol level was .256, more than two and a half times the legal limit.

After Hurricane Ivan, he appealed the disqualification, saying his employer needed him to travel to various construction sites to assist with the rebuilding of the island (Caymanian Compass, 16 August).

In an extensive ruling, the Grand Court judge noted that other jurisdictions do have intermittent disqualifications.

This type of penalty does carry considerable potential to deter offenders, he said. It can protect the public from the danger of a repeat offence by covering hours when alcohol would most likely be consumed. It can also serve a public service, in that the offender does not lose his ability to work and support his family.

In the August case, the driver had no previous convictions; there was no accident, no damage to person or property.

The judge was persuaded that discretion could be exercised in favour of the appellant. He therefore substituted a sentence of two years disqualification, but with permission to drive during the man’s working hours.

In the Court of Appeal last week, Mr. Wilson submitted that the Grand court judge erred in imposing an intermittent sentence. Both he and Attorney Anthony Akiwumi, who had appeared for the driver, agreed that the judge had not had a pertinent section of the law brought to his attention.

The 1991 Traffic Law stated that a person convicted of DUI ‘shall’ be disqualified. In law, shall means must. The Traffic Law was revised in 2003 to state that a person convicted of DUI was liable to disqualification, meaning that it was discretionary, not mandatory.

But a further section of the law states clearly: Where a person is disqualified from driving by an order of the court, that order shall prohibit such person from driving any vehicle on a road and holding a Caymanian licence in respect of any group of vehicle.

It was this section that was not brought to the attention of the Grand Court judge in August.

As a result the judge believed he had a discretion that in fact does not exist, as Mr. Justice Martin Taylor stated in the court’s reasons for its decision.

Mr. Justice Ian Forte noted there was no provision in Cayman statute for intermittent disqualification.

Court president Mr. Justice Edward Zacca pointed out that the Grand Court judge could have reduced the period of disqualification or he could have done away with it altogether. Instead, the judge must have decided that there must be some disqualification.

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