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Magistrate clears intoxicated man sleeping in car with engine on

A heavily intoxicated Central Queensland man has been found not guilty of being in charge of a vehicle while under the influence of liquor after he was found asleep in the driver’s seat by police with the keys in the ignition, the engine running and headlights on.

Mitchell Russell Murray, 27, was arrested and charged by police after returning a blood alcohol content (0.168) – more than three times the legal driving limit – with being in charge of motor vehicle while under the influence of liquour after he was found asleep in his Navara utility parked off Rasmussen Ave, Hay Point, about 12.55am on 4 June 2020.

In 22 February 2021, Murray entered a plea of not guilty to the offence at the commencement of a summary trial in Mackay Magistrates Court – saying his only intention was to sleep in the car because he “didn’t have any place to stay”.

Acting Magistrate John Aberdeen, in a 23-page decision delivered last Tuesday (10 August), found Murray not guilty and dismissed the charge against him.

The court was told the prosecution relied on one witness – police officer Constable Ari Kuster, to make out its case, while Murray testified in defence of the charge.

“Constable Kuster gave evidence that on 4 June 2020 that … at about 12.55am, he was performing patrols with Senior Constable Jamal Hall along Rasmussen Ave, Hay Point,” Mr Aberdeen said.

“As he did so, he observed, on the right hand side of the road a four-door utility, stationary on the side of the road, with the headlights illuminated … and that the taillights, and the right hand indicator were operating.”

The court was told, while Constable Kuster conducted checks on the vehicle and registered owner via the police communication system, Constable Hall walked to the driver’s side of the utility, reached inside, turned off the ignition, and removed the keys.

“Mr Murray could be seen lying in the vehicle,” he said. “The back of the driver’s seat had been reclined and Mr Murray was lying on the seat … (and his) body was contained within two compartments – the driver’s compartment contained the lower part of his body, while the left-rear compartment contained his head and chest down to the waist area.”

Upon being woken, Murray was breath-tested at the scene and returned a blood alcohol content reading of 0.187 – more than 3½ times the legal driving limit.

Murray was then take to the Mackay Police Station, where another sample of his breath was taken for analysis and this time returned a (BAC) reading of 0.167. Police subsequently cancelled his driver’s licence and charged him with the offence being in charge of a vehicle while under the influence of liquor.

In defending the charge, Murray said his car was parked outside a co-worker’s home and the pair had been celebrating the completion of a five-week shutdown at the Dalrymple Bay Coal Terminal.

When asked by his solicitor as to his recollections of the night of the incident, Murray replied; “Just drinking. Just wrap – wrapping up our working time that we’d just done. It wasn’t really going to get out of hand.

“About 8 o’clock I knew that I was ready to be done … (and) sent a couple of messages to people to be picked up, knowing that, like, I didn’t have a place to stay at that point.

“Well, Brad (whose house I was parked outside of) had offered me to stay, but I did not feel in place to stay there, due to the kids being in the house. Like, we have a pretty – obviously , having kids of my own, we don’t really let anyone stay that’s not within the family, so I have a strong belief that I didn’t have a place to stay.

“I opted to sleep in my car, thinking nothing more than that.”

Mr Aberdeen, in his ruling to acquit Murray said: “By his actions Mr Murray manifested the intention, by overt acts, to refrain from driving his car while he was under the influence of liquor … until he was sufficiently sober.

“At all relevant times, Mr Murray was not under the influence of liquor … to such an extent that he was incapable of understanding what he was doing; or he was incapable of forming the intention to refrain from driving his car until he was sufficiently sober.

“At all relevant times, Mr Murray’s vehicle was parked in such a way as not to constitute a source of danger to other persons or to traffic.

“I find Mr Murray not guilty of the offence … (and) I dismiss the charge and, I discharge Mr Murray.”

It remains unclear at this stage if the Queensland Police Service will appeal the decision.

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