IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000105 [2015] NZHC 1899
BETWEEN DAMIAN JAMES DUFFY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 June 2015
Further submissions filed up to 7 August 2015
Counsel:
A Haskett for Appellant
S O'Connor for RespondentJudgment:
11 August 2015
JUDGMENT OF ASHER J
This judgment was delivered by me on Tuesday, 11 August 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
A Haskett, Auckland.
Meredith Connell, Auckland.
DUFFY v NZ POLICE [2015] NZHC 1899 [11 August 2015]
Introduction
[1] On 26 March 2015 the appellant Damian Duffy was convicted by Judge N Mathers of driving with excess blood alcohol after a defended hearing. On the same day Judge Mathers fined him $650, ordered him to pay court costs of $130 and disqualified him from driving for six months.
[2] The incident which led to Mr Duffy being charged took place on 21 August
2014. Mr Duffy was stopped at a checkpoint by a police officer, Sergeant Kennedy. He underwent a passive breath test which indicated there was alcohol on his breath. He was then asked to undergo a breath screening test, which he did, which gave a reading of over 400 micrograms of alcohol per litre of breath. At that stage, at
12.46 am Sergeant Kennedy required Mr Duffy to accompany him to the nearby truck or van where such persons are processed (which I will refer to by the commonly used name of “booze bus”) for an evidential breath test.
[3] Mr Duffy underwent an evidential breath test which disclosed a reading of
568 micrograms of alcohol per litre of breath. Mr Duffy was advised of this result at
12.56 am. Sergeant Kennedy then read to him the advice under the heading “positive evidential breath test given without delay and the Bill of Rights Act 1990 blood procedure” from the standard breath and blood alcohol procedure sheet.
[4] Mr Duffy indicated that he did not wish to speak to a lawyer. The 10 minute period in which a person in Mr Duffy’s situation can elect a blood alcohol test commenced at 1.01 am. It is the Police case that shortly after the start of that period Mr Duffy stated that he wished to undergo a blood test. Sergeant Kennedy arranged for a blood test and it was administered at 1.32 am by a medical officer, Ms Maugham. That test showed a blood alcohol reading of 126 milligrams of alcohol per 100 millilitres of blood.
[5] Mr Haskett for Mr Duffy has raised a number of arguments which he says were wrongly not accepted by Judge Mathers, and which should have led to the charge being dismissed. Overall it is submitted that because there was no admissible evidence of a valid election, there was no evidence the blood specimen was “taken
under” ss 72 and 73 of the Land Transport Act 1998, and therefore that element of
the offence under s 56(2) was not…
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