Police v Monk DC Dun
IN THE DISTRICT COURT AT DUNEDIN
Sergerant T Scouller for the Informant
J Westgate for the Defendant
M was charged with driving with excess blood alcohol, and careless driving. M lost control of his motor vehicle but was not breath tested for eight hours — whether such a delay was too long a period of time to constitute sufficient proximity between driving and breath testing — whether the blood test result was obtained in breach of s68(1)(c) Transport Act 1998 (power to require a person undergo a breath screening test) — whether the evidence was thus “improperly obtained” in terms of s30(5)(a) Evidence Act 2006.
Held: The wording of s68(1)(b) LTA (granting power to require a person undergo a breath screening test if they have good cause to suspect a person has recently committed an offence) clearly required a degree of proximity between the relevant driving and the breath screening test. The wording of s68(1)(c) LTA (a driver of a vehicle in an accident) was less clear. A literal reading of s68(1)(c) did not require proximity and anyone who was the driver of a vehicle which was in an accident could be tested: it could not have been Parliament's intention to permit tests to be administered at a significant time after a crash especially when intervening events could render the presumption in s77 a nonsense. Whether there was sufficient proximity was a question of fact. Delay was only relevant where there had been a breach of s68(1)(c). The presumption in s77 could not be circumvented by delay. There must be some proximity between a defendant's driving and any subsequent request for a breath test. A delay of almost nine hours was too long a period of time to constitute such proximity between driving and breath testing. Because the blood test result was obtained pursuant to a breach of s68(1)(c) the evidence was thus “improperly obtained” in terms of s30(5)(a) Evidence Act 2006. The exclusion of evidence was proportionate to the impropriety. There was a lack of evidence of M's careless driving beyond his own explanation. Charges dismissed.
RESERVED JUDGMENT OF JUDGES J O'Driscoll
This case raises the interesting point as to how long after a crash involving a motor vehicle has occurred the police are entitled to breath test the driver.
A defended hearing was heard by me in the Dunedin District Court on 21 January 2010. While I used the phrase “defended hearing” no witnesses gave viva voce evidence and I was simply presented with written statements. Both the prosecution and the defence accepted certain facts and I was then asked to consider the legal issue as to whether, in the accepted facts, the police had a right to request a breath test from the defendant. There is also an associated careless driving charge before the Court.
As a result of the defendant's driving, he faces two charges. They are charges of driving with an excess blood alcohol level of 91 milligrams of alcohol per 100 millilitres of blood and careless driving. Both offences are alleged to have occurred on or about 15 November 2008.
Sometime after 9.00 pm on Friday, 14 November 2008 the defendant was driving his Subaru motor vehicle on Portobello Road, Dunedin. He lost control of the vehicle and it crashed into the harbour basin. The defendant removed the number plates from his vehicle and left the plates next to the vehicle. He then walked to his home which was a distance of 4.35 kilometres from the scene of the crash.
The defendant's vehicle was discovered partially submerged in the harbour at 3.43 am on 15 November 2008. The police attended the scene of the crash shortly after they were informed of the presence of the vehicle.
Subsequent enquiries by the police established that the defendant was the owner of the motor vehicle. The police arrived at the defendant's address at 4.50 am.
The defendant admitted driving his vehicle at the time of the crash. The defendant was then required to undergo a passive breath test at 5.00 am. He then underwent a breath screening test at 5.26 am. A subsequent blood sample take from him at 6.38 am revealed a level of 91 milligrams of alcohol per 100 millilitres of blood.
The defendant accepted drinking alcohol prior to driving his vehicle and that that had occurred between 4.00 pm and 9.00 pm on 14 November 2008.
The defence accepts that the blood alcohol level as ascertained by the sample taken from him gave a result of 91 milligrams of alcohol per 100 millilitres of blood.
No issue is taken with any of the breath or blood alcohol procedures in the breath and blood testing procedures except to the extent that the issue of the officers' jurisdiction to request the initial breath test is challenged.
It is accepted by the defence that there was no alcohol consumed by the defendant during the time between the crash and the breath and blood test procedures being undertaken.
There are two relevant statutory provisions which apply in this case. They are ss 68 and 77 of the Land Transport Act 1998. I set them out below:
68 Who must undergo breath screening test
(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a) A driver of, or a person attempting to drive, a motor vehicle on a road:
(b) A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
(c) If an accident has occurred involving a motor vehicle,-
(i) The driver of the vehicle at the time of the accident; or
(ii) If the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.
(2) An enforcement officer may not require a person who is in a hospital or doctor's surgery as a result of an accident involving a motor vehicle to undergo a breath screening test.
(3) A person who has undergone a breath screening test under this section must remain at the place where the person underwent the test until after the result of the test is ascertained, and an enforcement officer may arrest the person without warrant if the person refuses or fails to remain at that place.
(4) If an enforcement officer is entitled to require a person to undergo a breath screening test, the officer may also require that person to undergo a test using a passive breath-testing device, which test is one where the officer holds a passive breath-testing device near the person's mouth for the purpose of ascertaining whether or not there is any alcohol in the person's breath.
(5) The use or non-use of a passive breath-testing device does not of itself affect the validity of a breath screening test.
77 Presumptions relating to alcohol-testing
(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.
(2) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.
(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if-
(a) The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,-
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that...
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