IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000320 [2014] NZHC 1252
BETWEEN RAYMOND LESLIE CULLEN Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 19 November 2013 Appearances:
S C Blake for Appellant
K C Francis for RespondentJudgment:
5 June 2014
JUDGMENT OF KEANE J
This judgment was delivered by me on 5 June 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Blake Law, Auckland
Meredith Connell, Auckland
CULLEN v POLICE [2014] NZHC 1252 [5 June 2014]
[1] On 30 October 2013 Raymond Cullen was convicted of driving with an excess breath alcohol level on 29 March 2012. His level was 578 micrograms of alcohol per litre of breath. His offence was in the aggravated category. He was sentenced to 80 hours community work and six months community detention and disqualified indefinitely. He appeals his conviction and sentence.
[2] On his appeal against conviction, Mr Cullen contends, the Judge who convicted him, Judge C S Blackie, could not on the evidence conclude that, after the evidential breath test proved positive, the officer ‘without delay’ advised him of his right to elect to have a blood sample taken for analysis, or that he advised him of that right fully. He also contends that the officer failed at that point to re-advise him of his NZBORA rights.
[3] As to his sentence, Mr Cullen contends, the sentencing Judge, Judge Andrée
Wiltens, could not impose on him a zero alcohol licence. His offence date was 28
July 2012. The power to impose a zero alcohol licence did not come into force until
10 September 2012.
Prosecution evidence
[4] Sergeant Painter, the sole witness for the prosecution, said that at 12.57 am on 29 July 2012, as he was entering Great South Road, Manurewa, he saw a car travelling past at a slightly excessive speed. He signalled it to stop and he had the driver, Mr Cullen, undergo a breath screening test the result of which was ‘failed general over 400’.
[5] Sergeant Painter said that he showed Mr Cullen the result and required him to accompany him to a nearby ‘booze’ bus for an evidential breath test, blood test or both. As he was then detaining Mr Cullen, Sergeant Painter said, he gave him his NZBORA rights.
[6] At the bus, Sergeant Painter said, he began to complete the standard police breath/blood alcohol procedure sheet. He recorded that at the roadside Mr Cullen had told him that he had been drinking at a sports club and when he had his last
drink. Sergeant Painter then repeated to Mr Cullen his NZBORA rights and Mr
Cullen agreed that he had received those rights by signing the form of advice.
[7] Sergeant Painter said that he had Mr Cullen undergo an evidential breath test, using an approved device into which Mr Cullen blew twice. The lower of Mr Cullen’s two readings was 578 micrograms of alcohol per litre of breath; and when the device printed three copies…
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