Lyver v Police - [2013] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-19 [2013] NZHC 47

JARRETT STEPHEN LYVER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 4 February 2013

Counsel: J C Mathieson for the Appellant
J D Lucas for the Respondent

Judgment: 4 February 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr J C Mathieson, Rishworth Wall & Mathieson, Solicitors, Gisborne
Mr J D Lucas, Elvidge & Partners, Office of the Crown Solicitor, Napier

LYVER V POLICE HC GIS CRI-2012-416-19 [4 February 2013]

[1] This is an appeal against conviction under s 56(2) of the Land Transport Act for driving with excess blood alcohol, having been convicted for the same, or one of the specified related offences, at least twice before.[1]

Issue

[1] Police v Lyver DC Gisborne CRI-2012-016-000068, 28 September 2012.

[2] The essential issue is whether a blood sample could be taken without the appellant’s being required under s 69(4) of the Act to undergo without delay an evidential breath test, expressly refusing to undergo the breath test and with this occurring at the place to which the driver had been taken following a roadside breath screening test.

Statutory provisions

[3] The most relevant statutory provisions are as follows:

69 Who must undergo evidential breath test

(1) An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test or a blood test (or both) when required to do so by the officer, if,—

…

(ab) in the case of any other person, the person has undergone a breath screening test under section 68 and it appears to the officer that the proportion of alcohol in the breath of the person who underwent the test exceeds 400 micrograms of alcohol per litre of breath; …

…

(4) If a person—

(a) Has accompanied an enforcement officer to a place under this section; or

(b) Has been arrested under subsection (6) and taken to or detained at a place,—

an enforcement officer may require the person to undergo without delay at that place an evidential breath test (whether or not the person has already undergone a breath screening test).

70A Right to elect blood test

(1) If the result of a person's evidential breath test appears to be positive, the 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.

(2) This section is for the avoidance of doubt.

72 Who must give blood specimen at places other than hospital or surgery

(1) A person must permit a medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—

(a) The person fails or refuses to undergo without delay an evidential breath test…

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 Lyver v Police

Details

AGLC: Lyver v Police [2013] NZHC 47
Case: [2013] NZHC 47
Decision Date: 4 February 2013

CaseChat Overview and Summary

This appeal concerns the conviction of the appellant for driving with excess blood alcohol, following a refusal to undergo an evidential breath test. The issue before the court was whether the appellant was required to undergo an evidential breath test before a blood test could be administered, given that he explicitly stated his desire for a blood test at the roadside, prior to being taken to the police station. The court considered the relevant statutory provisions, particularly section 72 of the Land Transport Act, which mandates that a person must permit a medical practitioner to take a blood specimen if they fail or refuse to undergo an evidential breath test. The court also took into account the distinction between driving with excess breath alcohol and driving with excess blood alcohol, as outlined in section 56 of the Act.

The court found that the appellant's clear statement of wanting a blood test, made at the roadside and before he was taken to the police station, was a sufficient anticipatory refusal to undergo an evidential breath test. This allowed the enforcement officer to proceed directly to a blood test, in accordance with the statutory provisions. The court concluded that the District Court Judge was correct in his judgment and that the appeal should be dismissed.

The court considered the submissions of both parties and found that the District Court Judge's decision was consistent with the statutory context and the broad scheme of the breath and blood alcohol provisions. The court also found that the reasonable compliance provision could apply in this case if necessary.

The appeal is dismissed, and the conviction of the appellant stands.

Orders