Blair v Police
[2018] NZHC 1251
•31 May 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-419-000013
[2018] NZHC 1251
BETWEEN RYAN CHARLES GORDON BLAIR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 May 2018 Appearances:
Appellant in person
A A R Pell for Respondent
Judgment:
31 May 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 31 May 2018 at 11am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Hamilton
BLAIR v POLICE [2018] NZHC 1251 [31 May 2018]
Introduction
[1] Ryan Blair was charged with an infringement offence under the Land Transport Act 1998, namely driving with a breath alcohol level exceeding 250 micrograms but not exceeding 400 micrograms.1 On 19 March 2018, Judge Connell in the Morrinsville District Court found the charge proved following a trial without jury.2 Mr Blair was ordered to pay an infringement fee of $200 and court costs.
[2] Mr Blair now appeals against his conviction on the grounds that the way in which the evidence was obtained was in contravention of the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006. He represented himself in the District Court and is also self-represented on appeal.
The trial in the District Court
[3] The prosecution called one witness against Mr Blair, Constable Knighton. His evidence primarily consisted of his written brief of evidence being read aloud and although it was not recorded on the formal transcript of the evidence, a copy of the brief of evidence was provided for my reference at the hearing of this appeal.
[4] Constable Knighton said that on Saturday 19 August 2017 he was conducting a checkpoint on Allen Street, Morrinsville. At around 6.45pm he stopped a Mazda motor car being driven by Mr Blair having noticed his car had a faulty headlight. He then noticed that Mr Blair’s breath smelled of alcohol and he had bloodshot and glazed eyes. Mr Blair was co-operative and admitted to having consumed alcohol in the form of home-brew spirits. When Constable Knighton produced a handheld breath test device to conduct a passive breath test, Mr Blair commented by saying that he had heard that the presence of a pizza in the car could cause incorrect readings on the handheld device. As Mr Blair had admitted having recently consumed alcohol, Constable Knighton required him to undergo a breath screening test using a Drager 7510NZ handheld device. Mr Blair cooperated and the breath screening test produced a reading indicating a level of over 250 micrograms of alcohol per litre of breath. Having shown Mr Blair the result of the breath screening test, Constable Knighton
1 Section 56(1A).
2 Police v Blair [2018] NZDC 6094.
advised Mr Blair that he required him to accompany him to the Morrinsville Police Station or any other such place for the purpose of an evidential breath test, blood test or both. He said that Mr Blair agreed to accompany him, at which point he informed Mr Blair of his rights under the New Zealand Bill of Rights Act.
[5] Constable Knighton then took Mr Blair with him to the Morrinsville Police Station and upon arrival there, ascertained his full particulars including his full name, address, driver’s licence details and occupation. Constable Knighton said in evidence that he then read Mr Blair the Bill of Rights and evidential breath test advice from the police breath and blood alcohol procedure sheet (the procedure sheet). Mr Blair informed him that he did not want to speak to a lawyer and signed the procedure sheet acknowledging that Constable Knighton had advised him of the reason for his detention and his rights as set out on the procedure sheet.
[6] The relevant section of the procedure sheet read by Constable Knighton to Mr Blair provides:3
You have been detained for the purpose of breath or blood procedures for alcohol.
You have the right to remain silent.
You do not have to make any statement.
Anything you say will be recorded and may be given in evidence in Court.
You have the right to speak with a lawyer without delay and in private before deciding to answer any questions.
Police have a list of lawyers you may speak to for free.
These rights will continue throughout the breath or blood test procedures.
If you wish to speak to a lawyer a telephone will be made available to you for that purpose as soon as practicable. You will be allowed a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.
Would you like to speak to a lawyer? YES/NO
You are required to undergo an evidential breath test without delay.
3 New Zealand Police Breath and Blood Alcohol Procedure Sheet (9 May 2016) at section H.
If you fail or refuse to undergo the evidential breath test, you will be required to permit a specimen of blood to be taken.
If that blood specimen indicates the presence of alcohol, proceedings may be taken against you.
Whether or not your blood test result is evidence of an offence under the Land Transport Act 1998, you may be liable to pay a blood test fee and associated medical costs.
If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a Zero Alcohol Licence, and you fail or refuse to undergo an evidential breath test when required, and your blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 millilitres of blood, you will be liable to pay an infringement fee of $700.
Would you like to speak to a lawyer? YES/NO
[7] Constable Knighton said that he then administered an evidential breath test, obtaining a reading of 297 micrograms of alcohol per litre of breath. Because the reading was between 251 micrograms and 400 micrograms, Constable Knighton advised Mr Blair that he had no right to elect a blood test, and upon being requested to do so Mr Blair again signed the procedure sheet confirming that he had been advised of the positive result of his evidential breath test and that because of the result he had no blood election.
[8]Mr Blair did not give evidence or call any witnesses in his defence.
[9] In his oral decision at the conclusion of the trial, Judge Connell set out the evidence and held that he was satisfied the proper procedure was followed in terms of the New Zealand Bill of Rights Act (NZBORA) and the Land Transport Act. He recorded that Mr Blair did not take issue with the actual steps taken by Constable Knighton or the outcome, namely an evidential breath test result of 297 micrograms of alcohol per litre of breath. The Judge therefore concluded:4
The fact that no issue is taken with it and the evidence that I heard from Constable Knighton satisfies me that those procedures were carried out step by step in the order required, using the correct devices, with the end result being some 297 micrograms of alcohol per litre of breath.
4 At [7].
[10] Mr Blair made various submissions as to the unavailability of a blood test and the information Constable Knighton gave him concerning a blood test.
[11] First, Mr Blair argued that he should have had the opportunity to do a blood test. The Judge dismissed this argument by reference to s 70A(2) of the Land Transport Act, which provides that a person does not have the right to elect a blood test where the evidential breath test indicates a breath alcohol level of between 250 and 400 micrograms of alcohol.
[12] Mr Blair then submitted that he should have been informed prior to taking the evidential breath test that if the result was between 250 and 400 micrograms, he would not have the right to a blood test. He relied on s 24 of the NZBORA (rights of persons charged with an offence) in making this submission. Judge Connell held that the legislation simply did not require this advice and the requirements of s 24 were met:5
To make it a requirement that a suspect be advised prior to any testing of the unavailability of a blood test seems pointless. A failure to advise of such would not have any consequential effect in terms of any other rights or options or course of action available to the suspected driver. In particular there is no unfair consequence, there is no breach of any right, there is no prejudice suffered by a suspect driver in those circumstances.
[13] The Judge also dismissed Mr Blair’s arguments that there had been a breach of his right not to be compelled to confess guilt, and a failure by Constable Knighton to observe basic standards of natural justice. He found that the evidence was not improperly obtained in terms of s 30 of the Evidence Act.
[14] Mr Blair also raised s 29 of the Evidence Act, which concerns statements influenced by oppression. He said that Constable Knighton had informed him a blood test would cost around $400. Mr Blair found this a prohibitive cost due to his limited income, and likened the unavailability of a blood test to oppressive conduct in breach of s 29 of the Evidence Act. The Judge found that this did not fall within s 29, noting that the “oppression” of cost never arose in any event, as Mr Blair had no right to a blood test under the Land Transport Act.
5 At [14].
[15] The Judge then addressed Mr Blair’s submissions as to the scientific accuracy of the breath testing devices used, noting that if their accuracy was to be challenged then experts should be called in Court and the police would likely also obtain their own expert opinion. Mr Blair also contended that the takeaway pizza in his car might have produced vapours that affected the breath alcohol reading. The Judge held that this was of no consequence, as the legislation removed the right to a blood test in the context of an infringement offence. He commented:6
… no matter what you might think about the right of people to have a blood test so that you get around that issue of possible inaccuracy in the testing devices is not one that you and I can do anything about. Likewise with your view that you should be advised prior to any tests that a blood test is not available.
[16] The Judge found the charge proved and held that Mr Blair was liable to pay the infringement fee.
Submissions on appeal
Appellant
[17] Mr Blair’s submissions begin by addressing the factual narrative. He emphasises that he did not realise at any point that he would be prevented from electing a blood test if he provided a positive breath test. He also says that as he is hard of hearing, he could not hear much of what Constable Knighton was saying to him when he explained his rights and responsibilities.
[18] Mr Blair’s written legal submissions reiterate many of the arguments addressed by Judge Connell in the District Court. In essence, he contends:
(a)breath testing devices are inaccurate, and those used in his case were inaccurate;
(b)s 70A(2) should be read consistently with the NZBORA;
6 At [25].
(c)fairness and due process require a person with a positive breath test result to be allowed to elect a blood test (referring to ss 6, 24(a), 25(d) and 27(1) of the NZBORA and s 30 of the Evidence Act);
(d)blood tests are an important protection against the consequences of an error in a breath screening or evidential breath test (referring to Aylwin v Police);7
(e)the cost of a blood test ($400) is prohibitive for those on low incomes and amounts to oppressive treatment under s 29 of the Evidence Act;
(f)if someone is not informed about the provisions of s 70A(2) of the Land Transport Act, they are effectively compelled to confess guilt in breach of s 25(d) of the NZBORA; and
(g)the police should have informed him that no blood test was available prior to administering the evidential breath test, especially given the legislative amendment is so recent.
[19] Mr Blair states that he would have elected a blood test had one been available to him, despite the financial consequences. He points to his lack of prior convictions and maintains his innocence on the present charge.
Respondent
[20] Mr Pell for the respondent says that no miscarriage of justice has occurred and the appeal should be dismissed. He submits that the legislation is clear: s 70A(2) specifically excludes the right to elect a blood test for a breath alcohol level in excess of 250 micrograms and below 400 micrograms per litre of breath. There is no authority for the proposition that the police should explain that a blood test is not available in respect of this breath alcohol level. Mr Pell says Mr Blair appears to be challenging the fairness of the legislation itself, which does not provide any basis for appeal.
7 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].
Approach on appeal
[21] Mr Blair appeals his conviction under s 229 of the Criminal Procedure Act 2011. The test on appeal is whether or not a miscarriage of justice occurred, either in the Judge’s assessment of the evidence or for any other reason.8 A miscarriage of justice means any error, irregularity, or occurrence that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.9 A miscarriage of justice is therefore “more than an inconsequential or immaterial mistake or irregularity”.10
Analysis
[22] Constable Knighton was entitled to require Mr Blair to undergo a breath screening test.11 Given that the breath screening test showed that Mr Blair’s breath alcohol level exceeded 250 micrograms per litre of breath, Constable Knighton was then entitled to require Mr Blair to accompany him to the police station to undergo an evidential breath test.12 Having required him to do so, Constable Knighton was obliged to inform Mr Blair of the following matters:13
(a)that if the person fails or refuses to undergo the evidential breath test, the person will be required to permit the taking of a blood specimen under section 72(1)(a); and
(b)that if the result of a blood test indicates the presence of alcohol in the person’s blood the person may be issued with an infringement offence notice or charged with an offence, depending on the proportion of alcohol; and
(c)of the infringement fee payable for a breach of section 56(2B); and
(d)that the person may be liable to pay a blood test fee and associated medical costs, whether or not the result of the blood test establishes that the person has committed an offence against this Act.
[23] From Constable Knighton’s brief of evidence which he read as his evidence in the District Court, and from the procedure sheet used by Constable Knighton and
8 Criminal Procedure Act 2011, s 232(2).
9 Criminal Procedure Act 2011, s 232(4).
10 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
11 Land Transport Act 1998, s 68(1).
12 Land Transport Act 1998, ss 69(1)(ab) and 69(4).
13 Land Transport Act 1998, s 69(4A).
which was produced as an exhibit, it is clear that Mr Blair was properly informed of these matters and read his rights. Mr Blair signed the procedure sheet confirming that he had received that information. Having been so informed, Mr Blair did not refuse to undergo the evidential breath test.
[24] Having undergone an evidential breath test yielding a positive result, a person whose breath alcohol level exceeds 400 micrograms has the right to elect a blood test. There is however no right to elect a blood test for those persons whose breath alcohol level is between 250 and 400 micrograms. Section 70A of the Land Transport Act provides:
70A Right to elect blood test
(1) A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood, if the result of that person’s evidential breath test appears to be positive, and—
(a) the result of the person’s evidential breath test indicates that the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath; or
(b) the person is apparently younger than 20; or
(c) the person holds an alcohol interlock licence or a zero alcohol licence.
(2) A person does not have the right to elect to have a blood test to assess the proportion of alcohol in his or her blood if the result of the person’s positive evidential breath test indicates that the proportion of alcohol in the person’s breath exceeds 250 micrograms of alcohol per litre of breath but does not exceed 400 micrograms of alcohol per litre of breath.
(3) Subsection (2) does not apply to a person who is apparently younger than 20 or who holds an alcohol interlock licence or a zero alcohol licence.
[25] Section 70A(2) was inserted into the Act on 1 December 2014.14 It was part of a number of amendments designed to address the problem of alcohol-impaired drivers, including the creation of an infringement offence for drivers with breath alcohol levels between 250 micrograms and 400 micrograms.15 Section 70A(2) makes it clear that where an evidential breath test indicates a driver’s breath alcohol level is
14 Land Transport Amendment Act (No 2) 2014, s 10.
15 Land Transport Amendment Bill 2013 (175-1) (explanatory note).
within that infringement offence range, there is no right to elect a blood test. The Ministry of Transport’s Departmental Disclosure Statement, issued when the amendments were introduced, comments on this change as follows:16
Accordingly, adult drivers found to have an alcohol level in the range of 251 to 400mcg will be exceptions to the usual principle that a blood test can be elected that would render the evidential breath test result inadmissible. This is intended to create a self contained regime applying to adults in the infringement range of 251 to 400mcg of alcohol per litre of breath. This is expected to support the effectiveness of the enforcement regime in light of the decision to lower the legal alcohol limits for adult drivers.
[26] Mr Blair’s evidential breath test gave a reading of 297 micrograms of alcohol per litre of breath, placing him within the infringement offence range. He therefore had no right to elect a blood test. He contends that this is a breach of fairness and due process. He refers to the Supreme Court’s description of blood alcohol tests as providing “effective protection against the consequences of an error in a breath- screening test or an evidential breath test”.17 However, Parliament has specifically chosen in s 70A(2) to remove the ability to elect a blood test for those in Mr Blair’s position. It has used plain language in doing so. Even if s 70A(2) were inconsistent with an NZBORA right, which I do not consider to be the case, the wording of the subsection is so clear that there is no way in which it can be read down or interpreted alternatively by the courts.
[27] When, prior to the evidential breath test, Constable Knighton referred to the procedure form and advised Mr Blair of his rights and the testing procedure that was to be followed, there were a number of possibilities that could arise depending on the result of the test, and depending on whether Mr Blair cooperated with the requirement that he submit to the test. In the course of receiving that advice Mr Blair was told that if he failed or refused to undergo the evidential breath test, he would be required to permit a specimen of blood to be taken. That advice informed him that if he was not willing to undergo an evidential breath test, he would be required to provide a specimen of his blood.18
16 Ministry of Transport “Departmental Disclosure Statement: Land Transport Amendment Bill 2013” (19 November 2013).
17 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].
18 Land Transport Act 1998, ss 69(4A)(a) and 72(1)(a).
[28] Mr Blair, however, contends that he should have been informed, prior to undertaking an evidential breath test, that he would have no right to elect a blood test if his results were within a certain range. There is no statutory right to be informed of the operation of s 70A(2). The District Court Judge held that such an obligation would be “pointless”, as it “would not have any consequential effect in terms of any other rights or options or course of action available” to Mr Blair.19 However, a person who has undergone an initial breath screening test with a positive result may refuse to undergo an evidential breath test and then be required to undergo a blood test instead.20 Arguably this is a choice Mr Blair might have made had he been informed that he would have no right to elect a blood test if his evidential breath test results were within the infringement offence range.
[29] However, while the legislation has retained the right to elect a blood test when the evidential breath test result is over 400 micrograms and the penalties and consequences for an offender are more serious, it has not chosen to do so in relation to infringement offences where the associated fines and demerit points are much less serious.21 Having regard to the lower levels of penalty that arise where the evidential breath test result falls within the infringement range, I do not consider that a person’s rights to be informed of the process, so as to enable them to make an informed decision regarding the process, include a right to be informed that an infringement-level evidential breath test result will mean they will not be able to elect a blood test. Here Mr Blair was clearly advised prior to the evidential breath test being administered that if he failed or refused to proceed with that test he would be required to provide a specimen of his blood, and at that stage he elected to cooperate and proceed. The possibility that his evidential breath test result might fall in the infringement range meaning he would not be able to elect a blood sample was of course just that, a possibility. There being no statutory obligation on the police to inform a person of the operation of s 70A(2), and having regard to the less serious consequences that apply
19 At [14].
20 See Land Transport Act 1998, ss 69(4A)(a) and 72(1)(a). There is a higher penalty for persons who refuse to undergo an evidential breath test and instead undergo a blood test which shows them to be over the legal limit; see s 56(2B) of the Land Transport Act and sch 1 of the Land Transport (Offences and Penalties) Regulations 1999.
21 Compare the maximum penalties for a first or second breach of s 56(1) (breath alcohol exceeding 400 micrograms: three months’ imprisonment or a $4,500 fine) and a breach of s 56(1A) (breath alcohol exceeding 250 but not exceeding 400 micrograms: $200 fine).
in the case of an infringement offence, I do not consider it can be said that Constable Knighton had any obligation to inform Mr Blair of the possible operation of the section prior to administering an evidential breath test.
[30] Mr Blair’s additional submissions regarding the cost of a blood test amounting to oppressive treatment have no real relevance in the present case, as he had no right to elect a blood test after undergoing an evidential breath test. In any event, “oppression” is a high standard, defined in s 29(5) of the Evidence Act as meaning:
(a)oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or
(b)a threat of conduct or treatment of that kind.
[31] Constable Knighton’s conduct and treatment of Mr Blair simply does not fall into any of those categories, nor can the cost of a blood test which is prescribed by the Minister of Police by notice in the Gazette.22
[32] Mr Blair also argues that it is a breach of the right not to be compelled to confess guilt (s 25(d) of NZBORA) if the suspect is not informed of the operation of s 70A(2), combined with the prohibitive cost of a blood test. I do not consider that this submission has any force. Mr Blair was required by law to submit to an evidential breath alcohol test or a blood alcohol test. He cooperated and underwent the evidential breath test procedure. There can be no miscarriage of justice arising from the carrying out of the required procedure in accordance with the Act.
[33] For these reasons I conclude that no miscarriage of justice occurred, and that Mr Blair was properly convicted of the infringement offence.
Result
[34]Accordingly, Mr Blair’s appeal is dismissed.
Paul Davison J
22 See s 67 of the Land Transport Act 1998.
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