New Zealand Police v Joshua James Condliffe
IN THE DISTRICT COURT AT LEVIN
Sergeant S P Chamberlain for the Police
K B Campbell for the Defendant
Application under s81 Land Transport Act 1998 (LTA) (Court must order disqualification unless special reasons relating to the offence) — defendant pleaded guilty to a charge of driving with excess breath alcohol contrary to s56(1) LTA — defendant said he had four standard drinks before leaving the house and driving around for 10 minutes — then sat on the roadside and consumed a 1.25ml bottle of cider — submitted that the government's table of estimates of the maximum alcohol consumption permitted which was published in a regulatory impact statement and based on advice from the Institute of Environmental Science and Research Ltd (ESR), showed he was not over the limit when he had driven — whether the defendant could rely on the ESR table to show he was not over the limit when he drove — whether special reasons existed which justified an exemption from disqualification.
The issues were: whether C could rely on the ESR table to show he was not over the limit when he drove; and, whether special reasons existed which justified an exemption from disqualification.
Held: C was caught by the conclusive presumption in s77(1) LTA (breath test — conclusively presumed that breath alcohol proportion at time of alleged offence was the same as indicated by the test). However this type of statutory presumption did not prevent a defendant from calling evidence to prove, on the balance of probabilities, that the actual breath or blood alcohol level at the time of driving was lower than the level he tested at ( ).
C's evidence showed on the balance of probabilities that his actual breath alcohol level when he drove at between 1o.30 and 10.40pm was less than 400 micrograms of alcohol per litre of breath. It was the cider he subsequently drank which put him over the limit.
The estimates the defendant relied on as to the level of alcohol consumption allowed before exceeding the (then) legal limit were contained in a Regulatory Impact Statement prepared by the Ministry of Transport to inform Cabinet decisions about lowering the adult blood and breath alcohol limits. This was properly categorised as expert evidence and the defendant was entitled to rely on it as supporting his position.
The finding that C was under the legal breath alcohol limit was a special reason directly relevant to his culpability. The question that remained was whether the Court should exercise its discretion not to impose the mandatory six month period of disqualification.
This was not a case involving any driving fault or an accident. C was not observed driving at all. He did not intend to drive that night; the reason he left his house was to avoid a domestic argument escalating. His actions in taking the cider with him and drinking it in his car showed poor judgement, but in terms of culpability it was quite different from a situation where alcohol was consumed after driving in a deliberate attempt to mask the amount consumed beforehand. C had no previous convictions for criminal or driving offences.
Special reasons existed under s81 LTA. C was not disqualified.
RESERVED DECISION OF JUDGE S B Edwards
Joshua Condliffe pleaded guilty to a charge of driving with excess breath alcohol contrary to s 56(1) of the Land Trans ort Act 1998 (“the LTA”). On 26 November 2014t he was convicted and fined $450.00t with cow1 costs of $130.00. He applies, under s 81 of the LTAt for an xemption from the otherwise mandatory minimum disqualification period on the basis of “special reasons relating to the offencett.
The defendant has sworn an affidavit in support of his application. He deposes that was at his home in Foxton Beach on he evening of 13 September 2014. Between 8.30pm and 9.30 pm he drank four 330ml bottles of Wild Moose Canadian Whisky & Dryt a ready-to-drink (RTD) bever ge which is 5% alcohol. Sometime after 10.00 pm, he got into an argument with his girlfriend. To avoid the argument escalating, he left the house at about 10.30 pm and drove for around 10 minutes to the Foxton/Shannon road. He stopped at the side of the road and drank a 1.25 litre bottle of Scrumpy Old MoutCider (8% alcohol). The police found him there at 11.05pm, sitting in the driver's seat with the (he says empty) plastic cider bottle between his knees. 1
An evidential breath test undertaken at the Levin police station at 11.26pm showed a result of 499 micrograms of alcohol per litre of breath.
Mr Condliffe is 24 years of age, 175cm tall and weighs 76 kilograms. In support of his contention that he was not over the legal limit when he drove between 10. 30 and 10.40pm, he relies on a table of estimates of the maximum alcohol consumption permitted under the (then) adult limit of 80 micrograms per 100 millilitres of blood 2 published in the Ministry of Transport's 2013 Regulatory Impact Statement “Safer journeys: Lowering the legal alcohol limits for driving” 3, at page 17.
These estimates, based on advice from the Institute of Environmental Science and Research Ltd, provide that “safe” consumption (in order not to exceed the 80mg limit) for a male in the height/weight category into which the defendant falls (85kg, 175cm) is up to five standard drinks 4 over a two hour period. The consumption level categorised as “possibly safe”, in that 50% of the drivers in this category would not exceed the blood alcohol limit, is up to eight standard drinks over a two hour period.
The defendant submits that based on these estimates his alcohol consumption up until the time he drove (the equivalent of around four standard drinks over two hours) would not have put him over the limit and it was the full 1.25 litre bottle of cider he drank while sitting in his car which resulted in his recording a breath alcohol level of 499 at 11.26pm.
Section 81 of the LTA provides that where any...
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