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…
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- [2018] NZHC 1999
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