Legal Research
Cases
Hoeflich v Police

Hoeflich v Police

Case [2018] NZHC 1999 8 August 2018

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000154

[2018] NZHC 1999

UNDER the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against conviction and sentence

BETWEEN

ELLA DIANA HOEFLICH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 July 2018

Appearances:

D M M Dickinson & I L S Archibald for Appellant E A M Mok for Respondent

Judgment:

8 August 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 8 August 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

HOEFLICH v POLICE [2018] NZHC 1999 [8 August 2018]

Introduction

[1] Ms Ella Hoeflich appeals from her District Court conviction for driving with an excess breath alcohol level. She also appeals from the District Court Judge’s decision to disqualify her from holding or obtaining a driver’s licence for a period of six months, and declining to find special reasons under s 81 of the Land Transport Act 1998 for not imposing a sentence of disqualification.

[2] A valid breath screening test is a pre-requisite for a police officer to require a person to undergo an evidential breath test under s 69 of the Land Transport Act. Consequently, the key question that arises in this appeal is whether the two police officers who entered Ms Hoeflich’s home and then required her to undergo a breath screening test were present in her home with actual or implied consent, or whether their presence was unlawful.

Background

[3] Ms Hoeflich resides with her three daughters at Mt Roskill in Auckland. Her daughters are aged 21, 16, and four years. On Sunday 9 October 2016 she was at her home with her daughters. Her partner was away overseas and his Ford Ranger motor vehicle was parked in the driveway.

[4] At around midday she received a phone call from her friend Veronica Shale, who was visiting her father in hospital. Ms Shale was upset by her father’s situation and it was arranged that she would come over to Ms Hoeflich’s house for the afternoon. She arrived around 12.30pm.

[5] At around 2.00pm, the two friends opened a bottle of wine that Ms Shale had brought with her, and over a period of several hours until around 5.00pm they talked, drank the wine and ate some crackers and hummus. During this time Ms Hoeflich was also from time to time attending to her youngest daughter and preparing the evening meal for her family.

[6] At around 5.00pm, Ms Hoeflich and Ms Shale decided to drive to a nearby service station to purchase some cigarettes. Ms Hoeflich drove the Ford Ranger. This was the first time she had driven it. Her own vehicle was a much smaller car.

[7] On the way back home after purchasing the cigarettes, while driving around a roundabout, the front left wheel of the Ford Ranger struck the curb. The impact with the curb dislodged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoeflich v Police

Details

AGLC: Hoeflich v Police [2018] NZHC 1999
Case: [2018] NZHC 1999
Decision Date: 8 August 2018

CaseChat Overview and Summary

Ella Diana Hoeflich appeals against her District Court conviction for driving with an excess breath alcohol level, and the sentence of disqualification from holding or obtaining a driver’s licence for a period of six months. The key issue in this appeal is whether the police officers who entered Ms Hoeflich’s home and required her to undergo a breath screening test were present with actual or implied consent, or whether their presence was unlawful. The District Court Judge found that the police entry into Ms Hoeflich’s house was lawful and the evidence obtained by the police was properly obtained. However, the High Court found that the Judge’s assessment of the evidence was flawed and the police entry into Ms Hoeflich’s house was unlawful. The High Court found that the police did not have any statutory authority for their entry into Ms Hoeflich’s house, and their entry was outside the scope of their implied licence. The police had no lawful basis for entering Ms Hoeflich’s house and were trespassing when they did so. The breath test results were therefore improperly obtained evidence in terms of s 30(5) of the Evidence Act. The High Court carried out the balancing test mandated by s 30(2)(b) of the Evidence Act and found that exclusion of the evidence is a proportionate response to the police impropriety. The evidence of Ms Hoeflich’s breath test results should not have been admitted and therefore she should not have been convicted of driving with excess breath alcohol. A miscarriage of justice occurred in terms of s 232 of the Criminal Procedure Act. Ms Hoeflich’s appeal is allowed and the conviction entered against her on the charge of driving a motor vehicle on 9 October 2016 with a breath-alcohol level exceeding 400 micrograms of alcohol per litre of breath is quashed together with the sentence of disqualification imposed.

Orders