Legal Lines

LEGAL LINES Drink driving cases could be reviewable

As many of you may now be aware, there have been the offence does attract a fine and demerit points. A positive several District Court decisions where driving with test over 400 micrograms of alcohol per litre of breath is excess breath alcohol charges have been dismissed an imprisonable offence which can lead to a conviction and on the basis of the wrong advice being provided disqualification from driving. by police to motorists. However, there have also been District Judges who have been dismissing drink-driving charges have Court decisions going the other way where this defence has reasoned that there is a material difference in the meaning been unsuccessful. of the words ‘prosecution’ and ‘conviction’ in light of the new

The solicitor-general has now two-tier regime. While the police applied to the Court of Appeal under section 313 of the Criminal Procedure While the police have chosen not to appeal against any adverse decisions, it is interesting to Act 2011 to have a solicitor-general’s have chosen not to note that they have now changed the reference in relation to this issue in order to settle the matter once and for appeal against any wording in section J of the form to include the word ‘conviction’. all. The Court of Appeal has accepted adverse decisions, it is that there is a question of law and has instructed that the hearing be set down interesting to note that What can be done about it now as a matter of urgency. they have now changed The error in section J of the form could Prosecution vs the wording in section potentially lead to six-years’ worth of similar convictions being appealed conviction J of the form to include because the old form has been used When a motorist fails a roadside breath-screening test they are required the word ‘conviction’. for roughly that length of time. It is estimated that this could affect up to to accompany the police to undergo 85,000 drink-driving convictions. So an evidential breath test. While conducting testing procedures not only does it affect people who currently have active charges the police use a form which prompts them to give people their before the court, but also people who have drink-driving rights. These rights include being given the opportunity to convictions within the past six years who were unaware that speak to a lawyer and to elect to give a blood specimen. This they had a potential defence to the charge at the time they form is called the ‘Breath and Blood Alcohol Procedure Sheet’ entered their guilty plea. and has 16 sections labelled from A through to P. The courts have been taking a pragmatic approach to the

What has been happening is that after returning a positive problem by adjourning active cases before the court to a evidential breath test, the advice provided to motorists by call-over hearing to await the result of the solicitor-general’s the police has been inconsistent with s77(3) and (3A) of the reference. For people who have convictions for drink-driving Land Transport Act 1998 (‘the LTA’). The advice motorists during the relevant period, they can file a notice of appeal have been receiving was that if they did not within 10 minutes against conviction to preserve their position in the event that request a blood test, the evidential breath test they had the solicitor-general’s reference upholds the defence. That just undergone could, of itself, be conclusive evidence in a means that if the decision is favourable, then it may apply prosecution against them. We know this was the advice being retrospectively to all appeals that were filed prior to the release given by the police because this was wording used in section J of the decision. However, there is no guarantee that even if the of the Breath and Blood Alcohol Procedure Sheet. court finds in favour of the defence, it will rule that the decision

By contrast, s77(3A) of the LTA requires that a motorist is applies to earlier cases, but you have to be in to win!  advised that the evidential breath test they have just undergone could of itself be conclusive evidence that could lead to their conviction. The argument is that the failure to provide the Please note that this article is not a appropriate advice is fatal to a prosecution for drink-driving. substitute for legal advice and if you have a particular matter that needs Drink-driving infringement notices to be addressed, you should consult Since December 2014 there has been a two-tier drink-driving with a lawyer. Danielle Beston is a offence regime under the LTA. An adult with a positive breath barrister who specialises in transport test between 250 micrograms and 400 micrograms of alcohol law and she can be contacted on per litre of breath commits an infringement offence where (09) 379 7658 or 021 326 642. there is no conviction and no disqualification from driving, but Danielle Beston