Rational driving

Anyone using the roads these holidays will be pleased with the Supreme Court's decision in Aylwin v Police [2008] NZSC 113 (19 December 2008). Some people who will be caught driving with excess breath or blood alcohol levels will be displeased that unmeritorious and technical defences are disappearing, but the huge majority enter pleas of guilty at an early stage and accept responsibility.

There were two offences in Aylwin: failing to accompany an officer (s 59(1)(b) Land Transport Act 1998), and driving with excess breath alcohol (s 56(1)).

On the failing to accompany charge, a point of general interest was made. The defence had not challenged the witness's evidence that the breath screening test and the evidential breath test had been carried out properly so as to bring them within the statutory definitions of those tests. At the time of the defended hearing the Evidence Act 2006 was not in force, but the Supreme Court, upholding the Court of Appeal, held that unless challenged by the defence the witness's evidence that the tests were carried out is sufficient proof that they were. One would have expected the rule in Browne and Dunn to have applied, but in any event s 92 of the Evidence Act 2006 now requires cross-examination on "significant matters that are relevant and in issue".

It was open to the defence, on the failing to accompany charge, to cross-examine on whether the procedures that had occurred complied with the requirements of the definitions of the tests. The defence could, as always, advance any allegation of bad faith if the circumstances warranted that.

The excess alcohol charge was different in that errors in carrying out the breath tests are rendered irrelevant by s 64(4) and (5), so that the prosecution need only establish (para 14 of the Supreme Court judgment):

(a) The fact that a breath screening test was conducted;

(b) The fact that an evidential breath test was conducted;

(c) The results of these tests; and

(d) That [the defendant] was advised of his right to have a blood test.

As protection against errors in the breath testing procedure (whether human error or machine error), the person can elect to have a blood sample taken for analysis (para 11, referring to s 70A). The defence could still allege bad faith, but on the present facts there was no suggestion of bad faith.

There is no mention here of the right to legal advice that a person has during the testing procedures, which arises because of the element of detention necessarily inherent in the process. Breach of that right remains a matter relevant to the admissibility of the evidence of the result of the testing – whether of breath or blood - and this will be determined by the s 30 Evidence Act 2006 balancing exercise.

The judgment does not elaborate what challenges may be made to points (a) and (b) above, other than to mention bad faith. If the defence took issue with whether what was done amounted to, for example, an evidential breath test, then - given that errors in carrying out the test don't count - attention would focus on whether the device used was an approved device. A challenge based on bad faith would be directed at disputing the witness's honesty.