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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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The Lawyer, Further to my previous questions below I

Customer Question

Hi, Chris the Lawyer,Further to my previous questions below I consulted two Auckland barristers who specialize in drink driving. Both told me unequivocally that I had a defence due to the fact that I had NOT been breath tested at the side of the road but instead carted off to a police station. However because they were in Auckland and I was in Whangarei the costs to employ them were prohibitive.As whatever fine I get will be less than legal expenses and I don't care if I can't drive for 6 months I have pleaded not guilty and I am defending myself in person. I have very little to lose other than my unblemished record.My defence, both experts tell me, is in the Supreme Court Judgment SC 116/09 (2010) NZSC109 - Mathew ***** *****ler v NZ Police. One expert on her web site plainly states that anyone that has been taken to "another place" without an initial breath screening test at the scene has had his rights under the Bill of Rights breached.I have read "Birchler" many times but I don't have the right mindset to understand it completely. Can you explain in words of one syllable how it relates to me please? What do I say at the trial? I will not hold you accountable if it goes pear shaped!Two sergeants came, both without a screening device. I understand about the "readily available" bit - of a breath screening device, but as we were 25 minutes away from one source of devices they are claiming it wasn't "available". Is there a legal definition of "Readily" please. To me petrol is "readily" available but I have to drive 25 minutes to get to a petrol station. Semantics I know but important.I have read your answer to another drink driver where you discuss "proximity" between the driving and the blood test. Is 3 hours close enough "proximity"? Plus I had a drink between driving and my arrest - how does that factor in?I understand there is a balancing act between the Land Transport Act, the Evidence Act and the Bill of Rights. If my rights have been breached is the evidence collected then inadmissible at the trial?Confused ? I am.regards
Martin Ruston
Submitted: 4 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 4 months ago.

I am just looking at this

Expert:  Chris The Lawyer replied 4 months ago.

The issue to me seems to be whether there has been reasonable compliance with the requirements of section 64 Land Transport Act. This will depend on whether as you observe, whether the breath screening device was readily available. The Birchler case is a tangled web because this actually was sent back for a hearing in the District Court, and I am unsure if he was then convicted

Expert:  Chris The Lawyer replied 4 months ago.

In paragraph 19 of the case, the court talks about two issues, the first being proof of compliance with the necessary steps, and the use of section 64 to dispense with the need for strict compliance. The second issue is whether the evidence is admissible because of breaches of the Evidence Act and possibly of the New Zealand Bill of Rights Act. So in your case you will need to carefully look at the police notes about what happened when they first stopped you, but did not have the necessary breath screening device. The issue will be whether they were able to require you to accompany them, and whether you received the appropriate warnings are your rights under the New Zealand Bill Of Rights Act. Then you will need to consider whether there has been reasonable compliance with the requirements of the act.

Customer: replied 4 months ago.
Hi again,What exactly would constitute a breach of the Bill of Rights and what would be a definition of "readily available"? There were several options at the time for them to get a screening device but they have said "none was available" which I dispute.The Birchler case was sent back to the District Court but the police chose not to pursue it any further.What about "proximity" and having had a drink after I stopped driving?
Expert:  Chris The Lawyer replied 4 months ago.

A breach of the Bill of Rights would be something like failing to advise you of the right to ring the lawyer once you were detained by the police. That has happened in some of the cases as you will read.

Whether the breath screening device was readily available would be a question of fact. In a country area, this would have to be considered in the light of what is a difficult distance, and something like half an hour away may not be considered unreasonable. It can depend on factors like available manpower and other police incidents taking place at the same time. If they just could not be bothered, and it was readily available, they may have an issue.

The issue of having a drink after you stopped driving has been raised in a reasonable number of cases, but requires pretty good evidence. It would mean someone independent watching you have a drink. It generally does not succeed as a defence, but is sometimes used as special circumstances to justify no disqualification.

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