Rae v Police

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/00

BETWEEN	HEATHER MURDOCK RAE
Appellant

AND	THE POLICE
Respondent

Hearing:	5 July 2000
Coram:	Richardson P Thomas J Keith J Blanchard J Tipping J
Appearances:	J H M Eaton and A Shaw for Appellant A S Butler for Crown
Judgment:	10 August 2000

JUDGMENTS OF THE COURT

Judgments

Paras No

Richardson P, Thomas, Keith, Blanchard JJ [1] – [62]
Tipping J [63] – [77]

RICHARDSON P, THOMAS J, KEITH J AND BLANCHARD J (DELIVERED BY BLANCHARD J)

Introduction

With leave of the High Court under s144 of the Summary Proceedings Act 1957, Ms Rae appeals against the dismissal in that Court of her appeal against conviction in the District Court at Christchurch on a charge of driving a motor vehicle on a road while the proportion of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath (s56(1) of the Land Transport Act 1998).
The questions of law concern the application of s23(1)(b) of the New Zealand Bill of Rights Act 1990 (the right to consult and instruct a lawyer without delay and to be informed of that right) after a positive evidential breath test and before an election is made to undergo a blood test. It is common ground that an election to undergo a blood test is irrevocable (Auckland City Council v Haresnape [1983] NZLR 712, 715).

Factual background

On the evening of 15 June 1999 Ms Rae was driving a vehicle in Shands Road, Christchurch. She was stopped by Constable Holbrook. A breath screening test under s68 of the Land Transport Act (“the Act”) proved positive. She was, in the usual way, taken to the Hornby Police Station for evidential testing. After being advised of her rights and signing a form acknowledging accordingly, Ms Rae made contact by phone with a lawyer and, in a private conversation, received advice. She then underwent an evidential breath test which produced a positive result of 445 micrograms of alcohol per litre of breath.
The appellant was then given written advice of the result of that test and signed another acknowledgement that she had been told:
3. If you do not within 10 minutes request a blood test, the test you have just undergone could, of itself, be sufficient evidence to lead to your conviction for an offence against the Land Transport Act 1998.
4. If you wish to undergo a blood test you must request one within 10 minutes.
5. If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration;
BUT the result of the blood test may be used to support a charge based on an analysis of your blood alcohol concentration.
The appellant was also advised again of her right to consult and instruct a lawyer, and she signed another form acknowledging this advice.
There is no issue raised concerning the propriety of any of the steps taken up to this point.
Ms Rae told the constable that she wished to speak to the lawyer again. There is some dispute about what then happened. The District Court Judge accepted (contrary to Ms Rae’s allegation) that Constable Holbrook did not advise Ms Rae that it would not make much or any difference whether she had a blood test or not.
Ms Rae was certainly given privacy in order to make a further phone call. As it happened, she was not able to make contact again with the lawyer, and the Judge found that Ms Rae “remained undecided or confused as to whether she should have a blood test”. It is common ground that although there was a list of lawyers on the wall of the room, it was not pointed out to her. The Judge said this was “because of the obvious reason that the defendant in fact had already spoken to a lawyer”. Whether the police officer appreciated that Ms Rae had not been able to contact the lawyer again was central to the argument in the District Court. The Judge accepted Constable Holbrook’s evidence that she was unsure whether Ms Rae had spoken again to her lawyer about taking a blood test.
The 10 minutes elapsed without Ms Rae making an election to have a blood test and she was then given a traffic offence notice and a summons issued under s19B of the Summary Proceedings Act 1957.

The statutory provisions

The relevant provisions of the Act are set out in a schedule to be found at the end of the judgments.

The District Court decision

In the District Court the thrust of Ms Rae’s defence was that in the particular circumstances her rights under s23(1)(b) had been breached because Constable Holbrook had not properly facilitated her right to obtain further legal advice. The Judge described the argument as follows:
The point that Mr Eaton makes is that when the defendant, having used the telephone and whether or not the constable was aware that the defendant had spoken to the lawyer again or otherwise, that the constable should have been aware and in fact was aware that the defendant was still confused or undecided about a blood test that at that point the constable should have given the defendant the list of other lawyers who can be telephoned.
The Judge rejected this argument, saying that Ms Rae had spoken to a lawyer and “was then [after the evidential breath test] given the opportunity again to ring the lawyer”. In the Judge’s view, what he called the “facilitation requirements” had been met.
The Judge added that as there had been no breach in relation to the evidential breath testing and the evidence of breath alcohol level “was already achieved…it would be difficult…for the court to back track and say that that evidence was not admissible even if there had been some breach over the blood testing option”. It was, he thought, “entirely speculative” that the blood test might possibly have been below the legal level.

The High Court decision

In the High Court the Judge said that the arguments advanced to the District Court had been
(1) that s23(1)(b) had to be complied with not only between a breath screening test and the evidential breath test but also after the evidential breath test was completed; and
(2) that there had been a breach of the section because the constable had not facilitated Ms Rae in making contact with a lawyer, in particular by failing to “give her a list of names of solicitors who would take a call from her at that hour of the night”. (It was 7.55pm).
The High Court Judge thought that there were difficulties with the District Court Judge’s reasoning. He said that if there were “an obligation to comply with s23(1)(b) twice”, it could not be discharged by showing that it had been complied with once. Assuming it had to be complied with after the evidential breath test, s77(3) provided that an evidential breath test between 400 and 600 micrograms of alcohol per litre of breath was not admissible if a blood test was requested within 10 minutes. So, if the behaviour of the police officer after the evidential breath test was in breach of the Bill of Rights, “and this in a way which might be thought to affect the quality of the decision made by the suspect not to request a blood sample, the only practical way of recognising that breach would be to acquit”. We pause to say that there can be no doubt that the High Court was right on this point and Mr Eaton did not argue to the contrary. The District Court Judge’s reasoning would partially deprive s77(3) of its protective function, which is to give a suspect an opportunity to have what may be a slightly more accurate measurement taken of her physical condition. Any breach of the guaranteed right having the effect of depriving the motorist of advice from a lawyer about that opportunity must have the consequence that the evidential breath test result is rendered unavailable to the prosecution.
The High Court Judge said that a person who has been required, in terms of s69(3) of the Act, to accompany an enforcement officer for evidential testing is “detained under an enactment” until the point where a blood test has been taken or an evidential breath test has been completed and the result ascertained. His Honour’s reference to a blood test seems to have been to the situation in which a detained motorist can be required to have such a test without first being asked to take an evidential breath test (see s69(3)(b)). (See also s72(1)(a) under which a person who refuses an evidential breath test, which is not an offence, can be required to permit a blood specimen to be taken.)
As the High Court Judge read the statute, it was not an offence for the suspect, once the result of the evidential breath test had been ascertained, to “leave and go about his or her own business”. Section 77(4) simply provided that the 10 minute rule did not apply where the suspect did not remain at the place where the evidential breath test was conducted. There was no sanction imposed for leaving.
The Judge agreed with Mr Eaton that someone in the position of Ms Rae might well want to take further legal advice as to what should be done in the circumstance that an evidential breath testing result was between 400 and 600 micrograms of alcohol per litre of breath:
Indeed, given that this is at a point in the process where the suspect actually has options, as opposed to the position which obtains before the evidential breath test is taken, it is, in fact, perhaps the most sensible time for a suspect to take legal advice.
But the Judge said that s23(1)(b) was not intended to ensure that all those who might sensibly take legal advice do, in fact, take such advice:
Rather, it is focused on the facilitation of the obtaining of legal advice at the point when a person is arrested or otherwise detained under an enactment.
The Judge’s review of the statutory provisions pointed strongly, he said, to the conclusion that Ms Rae was not detained under an enactment after she was told of the evidential breath test result. Describing this as a “perhaps literal view” and saying that, if it were correct, nonetheless Ms Rae would again have been subject to detention had she requested a blood specimen (because she would then be required to remain until it was taken (referring to s72(5)), the Judge considered the issues raised “on a broader basis”.
First, he saw nothing in the majority judgments in Ministry of Transport v Noort [1992] 3 NZLR 260 to suggest that there was scope for s23(1)(b) “to apply twice during the procedure”. Secondly, he said, there were difficulties in applying s23(1)(b) in a statutory context which provided time constraints for taking the next step, which the legislature had directed was to occur forthwith:
The timing provisions of s77(3) are specific. The result of an evidential breath test is not admissible in evidence unless the suspect is advised immediately of the positive result and the entitlement to request a blood test within ten minutes and the ten minute time period commences at the point when that advice has been given. The combination of the requirement for the police officer to give the relevant advice “immediately” and the precise ten minute period allowed to the suspect to request a blood sample does not really leave any sensible scope for the taking of legal advice.
The Judge accepted that certain High Court authorities, beginning with the decision of Thomas J in Kaisuva v Police (1993) 11 CRNZ 151, proceeded on the basis that the time during which the suspect was engaged in exercising a right to consult and instruct a lawyer should be excluded from the calculation of the 10 minute period, but it seemed to the Judge to be more sensible to construe s77 as “meaning what it says” and thus as being inconsistent with any necessity to facilitate further contact with a lawyer at this point in the process. The appeal failed on that basis.
The High Court Judge’s conclusion made it unnecessary for him to decide if there was a breach of the “facilitation principle” but he recorded that he would probably have found that there was.

The leave to appeal

Leave to appeal was given by the High Court with a view to this Court’s determining the following questions:
1.Did Ms Rae under s23(1)(b), New Zealand Bill of Rights Act have a continuing right, throughout the breath/blood alcohol testing process, to seek legal advice and be facilitated in this respect?
2.Was there a further “detention” at the point when the evidential breath test result was advised to Ms Rae and she had to make a decision whether to request a blood test?
Mr Eaton raised a preliminary point, saying that the prosecution had not put in issue at the trial or in its submissions on the High Court appeal whether Ms Rae had at the relevant time been detained under an enactment. Mr Eaton said that there was an implicit concession that there was such detention throughout and that the only real issue was whether the obligation to facilitate the right to take legal advice had been breached. However, the appellant applied for leave to appeal to this Court and agreed to the framing of a question directed to the existence of such a continuing right under s23(1)(b). It is therefore not open to her counsel now to take such a preliminary point. It is clearly contrary to the High Court Judge’s understanding of the position both when delivering his judgment and when granting leave. To uphold it would also place this Court in the strange position of considering whether there had been appropriate facilitation without first determining whether any right existed to be facilitated after the completion of the evidential breath test.

The Issues

The issues can be stated in the following way:
Detention
[a]Was the appellant lawfully detained under an enactment in terms of s23 during the 10 minute period?
[b]If not, is she to be regarded as having been unlawfully detained?
Right to Counsel
If there was such a detention, did the appellant have a right to counsel during the 10 minute period? (This involves consideration of whether that period is extendable on the basis enunciated in the Kaisuva line of cases or on any other basis.)
Breach of facilitation obligation
If there was a detention and a right to counsel applied during the 10 minute period, was there in the circumstances a breach of the obligation of the police to facilitate exercise of the right?

Detention under an enactment – the arguments

Argument for the Appellant

Mr Eaton submitted that the judgments of the members of this Court in Noort strongly support the view that detention continues throughout the testing process. So too, it was said, does the right to counsel. It is not practicable for a lawyer who is called prior to the taking of an evidential breath test to cover with the client all the contingencies which may later arise during the process. The best advice may be that the suspect should ring back if and when that test produces a positive result, particularly one relatively close to 400 micrograms. The High Court Judge had himself said that the point at which an election concerning a blood test had to be made was “perhaps the most sensible time for a suspect to take legal advice”.
Mr Eaton submitted that, quite apart from the Kaisuva line of authority, it was not accepted for the appellant that the 10 minute period did not leave any sensible scope for the taking of legal advice, which might need to be only “very brief indeed” where the lawyer already had a general picture of the suspect’s situation as a result of an earlier telephone call. Nonetheless, further brief advice could be important in permitting the suspect to make an informed decision about a blood test.
It would also be artificial and strange, counsel said, if the suspect’s right might “switch off and switch on” during the breath and blood testing procedures. This did not have an air of reality, especially if a further advice of rights had to be given when a further period of detention began, upon the suspect’s requesting a blood test, especially since such a decision would be irrevocable and the suspect would be then obliged to take the test.
Mr Eaton said that there would also be practical disadvantages for the police. If someone who had failed a breath test was immediately free to leave the testing station, the police could not require that person to wait and receive an “instant summons” issued under s19B(1) of the Summary Proceedings Act 1957, which reads:
19B Summons following evidential breath test-
(1) Where a person undergoes an evidential breath test pursuant to section 58B of the Transport Act 1962 or section 69 of the Land Transport Act 1998, and either-
(a) The test is positive, but the person who underwent the test does not advise an enforcement officer within 10 minutes of being advised of the matters specified in section 58(4)(a) of the Transport Act 1962 or section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test; or
(b) The test is carried out by means of a conclusive evidential breath-testing device within the meaning of section 57A of the Transport Act 1962 or section 2(1) of the Land Transport Act 1998, and the result of the test indicates that the proportion of alcohol in the breath of the person who underwent the test exceeds 600 micrograms of alcohol per litre of breath,-
an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.
Because the decision not to have a blood test did not have to be finally made until the 10 minutes had elapsed, a person who chose to leave might seek to return within that period and complications could arise if they did so. An election made during the 10 minute period not to have a blood test is not irrevocable and can be reversed by the motorist until that period has elapsed (Auckland City Council v Haresnape). Counsel added that there might be a further practical disadvantage in that the police would not be able to invoke s121 of the Land Transport Act forbidding the person from driving the motor vehicle for up to 12 hours because no offence had yet been committed.

Argument for the respondent

Mr Butler submitted that the Act states the periods during which a suspect must accompany an enforcement officer or must remain at the testing station. Section 69(5) requires a person to accompany the officer to a place when required to do so “under this section”. The person must then remain at that place until required to undergo an evidential breath test or a blood test or to accompany an enforcement officer to another place under that section. Crucially, Mr Butler argued, s69(5)(c) stipulates that:
(c) If the person has undergone an evidential breath test under this section the person must, remain at the place where the person underwent the test until after the result of the test is ascertained.
The words which have been italicised refer, counsel said, to the point at which there is a result available. There is a power of arrest to enforce contravention of subs(5) but none applying to the 10 minute period. There is no express restriction upon the person’s freedom of movement after the result of the evidential breath test is ascertained nor any equivalent power of arrest. Someone who has failed a breath test is not obliged to take a blood test. Such a person is required to permit a blood specimen to be taken by a medical practitioner or medical officer only when, in terms of s72(1)(b)(ii), that person has first advised the officer within the 10 minutes that he or she wishes to undergo a blood test.
Indeed, Mr Butler went further during oral argument and suggested, by reference to s72(1) and (5)(b), that notwithstanding that the person had expressed the wish to undergo a blood test, he or she would not then be detained and was free to go until actually required to permit a sample to be taken, which would necessarily occur only after a medical practitioner or medical officer had arrived at the testing station. That was when the further period of detention would begin, it was submitted.

Mr Butler very properly confirmed to the Court that it is police practice to re-advise a person who has registered a positive evidential breath test of the right to counsel but, on the basis of the foregoing submissions, he said that this was not actually required for compliance with s23(1)(b) because there is no relevant detention.
Counsel naturally placed reliance also on dicta of members of this Court in Auckland City Council v Haresnape that after an evidential breath test result is ascertained the driver does not have to remain at the testing station. Mr Butler noted also observations by two members of the Full Court in Police v Smith & Herewini [1994] 2 NZLR 306 that the inquiry is whether there has been a detention, which is quite a different inquiry from whether a citizen reasonably requires counsel’s assistance; and that the Court needs to resist the temptation to use the need of a suspect for legal advice in order to transform a situation falling short of a restraint of liberty into detention.

Detention under an enactment – analysis

The issue is one of some difficulty. In Noort in 1992 this Court stressed the constitutional significance of the right to consult a lawyer. Richardson J said:
Not surprisingly it is also a central feature of contemporary international statements of human rights. The right is pivotal in assuring so far as possible that both those detained and those detaining them act in accordance with the law. It recognises the reality that an individual who is arrested or detained is ordinarily at a significant disadvantage in relation to the informed and coercive powers available to the State. Access to counsel is a means of reducing that imbalance and of ensuring that anyone arrested or detained is treated fairly in the criminal process. In that regard the right to a lawyer facilitates access to knowledge and also allows for representation by an independent intermediary. (p279)

The Court found that the provisions of the 1962 legislation on testing procedures intended to provide proof of excess breath and blood alcohol driving offending were not inconsistent with the Bill of Rights, and in particular with s23(1)(b). In 1998, after there had presumably been a review of how Bill of Rights cases were affecting the operation of the transport legislation, Parliament largely re-enacted those provisions, and did so without including any express reference to the Bill of Rights. Clearly, then, it was content to let the Courts continue to work out on a case by case basis how the detail of the transport legislation should, as required by s6 of the Bill of Rights, be interpreted in a manner consistent with the guaranteed rights and freedoms and what might constitute a reasonable limitation under s5. As a consequence of this approach by Parliament, a literal reading of the complex testing procedures may be inappropriate and unintended. Furthermore, case law antedating the Bill of Rights requires to be reconsidered, for obviously it was not addressing such questions.

The construction urged by the respondent might be stronger if the Court were not obliged to give effect to the Bill of Rights in interpreting the legislation, although it would appear to cause such practical difficulties for the police that it is perhaps surprising that the Crown now advances it. Read in isolation, s69(5) does appear to bring to an end the obligation to remain at the testing station once “the result of the test has been ascertained”. It is apparent from s77(3)(a) that these words cannot be given an extended meaning and refer to the point at which the enforcement officer has an immediate obligation to advise the result of the test. The 10 minute period begins when that is done and advice is given as required by that provision (Ministry of Transport v Jeffries (1991) 7 CRNZ 455). No offence is committed if the motorist fails to remain at the testing station thereafter. The power to arrest conferred by s69(6) does not apply unless there is a contravention of s69(5). (See also the corresponding offence provision, s59(1)(c).) Moreover, no offence is committed if, after requesting a blood test, the motorist then fails or refuses to remain at the testing station and declines to undergo the requested blood test. Section 72(1) and (2) make it obligatory for the motorist to permit a blood specimen to be taken by a registered medical practitioner or medical officer but there is no applicable power of arrest nor any offence provision. The power of arrest appearing in s72(5) is limited to situations in which there has first been a requirement to accompany under s72 itself. The making of such a requirement is authorised under s72 only by subs(3), which applies only where the motorist needs to be taken to another place because the taking of blood at the first place is not practicable. Ms Rae had certainly been required to accompany but that was done under s69, not s72.
But, against this, the provisions of Part 6 of the Act must surely be intended to be read as a whole. Parliament was legislating for an integrated and coherent enforcement process. The integrity of that process as a whole, and particularly the test results it produces, is vital to public acceptance of this method of obtaining proof of offending of a kind which is a notorious cause of road accidents in which many people are killed or injured, at great social and economic cost to the country. The procedure is complex and imposes considerable burdens upon enforcement officers. Unnecessary further complication, anomalous in its operation, should not be read into it, particularly when it may have the effect of limiting a right as fundamental as the right to counsel.
The decision of this Court in Haresnape in 1983, cited by the respondent, was concerned with whether a person who had failed an evidential breath test could reverse an initial election not to have a blood test where the reversal occurred during the 10 minute period. The motorist’s freedom to leave the testing station was assumed, the case being accordingly argued on the basis that there was no continuing power to detain him. If the Court had been alerted to the matters referred to in argument in this case, and had been considering the matter under the Bill of Rights, it might have seen the question of detention rather differently.
It seems unlikely that Parliament intended that the motorist’s detention which begins under s69 should come to an end before a decision not to request a blood test is made irrevocably and the procedures are accordingly at an end. It would, for example, be anomalous if motorists who indicated at the beginning of the 10 minute period that they did not want to have a blood test could immediately leave the testing station and thereby thwart the clear legislative intention in s19B of the Summary Proceedings Act, introduced by amendment in 1988, that in such circumstances an “instant” summons could be issued. Such a summons cannot actually be issued instantaneously because documentation cannot take place until after the breath test result is available showing that an offence has been committed (subject, of course, to the right to elect for a blood test). The summons would prove to be prematurely issued if a blood test were requested and taken because the breath test could no longer form the basis of a charge.
It also seems unlikely that Parliament would have intended that a motorist who elects (irrevocably) to undergo a blood test is thereafter free to leave the testing station without submitting to the test. This would be entirely inconsistent with s72(3) and (5) under which not only can the motorist be required to accompany an enforcement officer to a second place where a blood test can be conducted but also can be required to remain there until requested to permit a specimen to be taken – under the threat of arrest for non-compliance. When s72 is read as a whole it is implicit in its opening words – that the motorist “must permit” the taking of a blood specimen “when required” – that he or she is not free to leave the testing station and so avoid the making of any requirement. It is nonetheless an oddity that, if the motorist somehow manages to leave, no offence is committed unless the departure from the testing station occurs after the formal making of a requirement. In such circumstances the evidential breath test remains admissible (s77(3)(b) and (4)).
The appellant’s argument alleging difficulty in the use of s121 does not however assist her. The result of an evidential breath test can provide reasonable grounds for an enforcement officer’s belief that the person being processed is not in a physical state to have proper control of a vehicle. It is not necessary to show that an offence has already been committed. Indeed, if the motorist is later prosecuted under s52(1)(c) for failing to comply with the enforcement officer’s direction under s121, the fact that a breath or blood test did not prove positive does not provide a defence (s64(3)).
If there were no need to consider the application of the Bill of Rights we would find the arguments fairly evenly balanced, weighing on the one hand the statutory indications favouring continuance of detention throughout the whole of the process and, on the other, the absence of any express provision for detention during the 10 minute period. In other than very unusual circumstances a Court would not be prepared to imply a power to detain where Parliament has not expressly provided for it. The Bill of Rights considerations are, however, in this unusual statutory setting decisively in favour of the appellant’s argument. It is settled law since Noort that a citizen is entitled to the rights conferred by s23(1)(b) when required to undergo evidential breath testing. Such testing is part of an integrated set of procedures. It would be astonishing if, to adopt Mr Eaton’s expression, the rights were to switch off and then switch on again during the process, particularly if they were switched off at the time when the person subject to the process might be most in need of legal counsel, namely when it appears from the result of the evidential breath test that an offence may have been committed. The observations of members of this Court in Smith & Herewini, referred to in para [36], are true in general terms but they were not directed to the unusual situation which arises under s72 whereby the motorist, rather than the enforcement officer, is called upon to decide whether to bring that section into play, and if the motorist does so he or she will then be legally obliged to submit to the very invasive act of the taking of a blood specimen. In these exceptional circumstances Parliament is not in enacting land transport legislation to be taken to have created a situation in which detention ceases, and the Bill of Rights protection is withdrawn, only for the detention to revive again if the motorist elects to have a blood test, but reviving too late for fully useful advice to be taken on a matter which may be of considerable significance to the motorist.
We are therefore satisfied that the lawful detention after s69 is invoked must be taken to continue throughout the breath and/or blood testing procedures and, where there is a positive evidential breath test and a consequential right to ask for a blood test, that detention does not come to an end until the testing procedures are completed – either upon expiry of the 10 minute period or upon the completion of the taking of blood, where an election is made to have a blood test.
The conclusion already reached is supported by one of the stated purposes of the Act in its long title – “to promote safe road user behaviour” - and by the provisions in the part which sets out the “Primary Responsibility of Participants in [the] Land Transport System” (part 2, ss4-13). Those responsibilities are substantive, including the prohibitions on driving while incapable because of the influence or drink or drugs or while over the prescribed breath and blood alcohol proportions (ss11 and 12). The responsibilities relate also to the enforcement powers of the police and other enforcement officers. Drivers are to comply with the provisions relating to breath screening tests, evidential breath tests and blood tests already discussed. They are, as well, to comply with all lawful requirements, directions and requests made by enforcement officers, medical practitioners and medical officers (s13). While those provisions do not add new powers they do provide a context, by emphasising the responsibility of drivers to cooperate with the enforcement process, in which the powers are to be seen and interpreted.
If it had not been our conclusion that Ms Rae was lawfully detained during the 10 minute period we would, in any event, have concluded that she was in the circumstances of this case actually, and therefore arbitrarily, detained by the police at that time in breach of s22 of the Bill of Rights. She had been required to accompany Constable Holbrook and to remain at the police station. How could she be expected to know, upon the announcement to her of the result of the evidential breath test and upon being again given advice of her rights, that she was free to go? The indications were all to the contrary. The very fact that the police constable herself thought fit to include in that advice a repetition of the Bill of Rights advice, which is required only when there is an arrest in the exercise or purported exercise of legal authority or detention under an enactment (R v Goodwin [1993] 2 NZLR 153), suggests that she considered that Ms Rae was still lawfully detained and that Ms Rae would not have been permitted to leave if she had indicated an intention to do so. Ms Rae remained in the same coercive atmosphere. In such circumstances a detention will ordinarily be taken to be continuing unless by some words or some overt act the police officer indicates that the motorist may leave.
Mr Butler attempted to rely upon the fact that once Ms Rae had declined to have a blood test, or was taken to have done so by Constable Holbrook on the expiry of the 10 minutes, she was issued with a summons under s19B. But, while that was no doubt an indication that the procedures were then at an end, and with them the detention, that event did not occur until after Ms Rae was taken to have irrevocably elected not to have a blood test.

Right to counsel during ten minute period

Counsel for Ms Rae argued that as the detention continued during the 10 minute period, so too did the right under s23(1)(b) in all its aspects. Accordingly she had the right to consult her lawyer again before electing whether to take a blood test, and that right should have been facilitated by Constable Holbrook.
Mr Butler’s response to this argument was to say that if there was a continuing detention, any right to consult a lawyer during the 10 minutes of further detention would be inconsistent with the scheme of the Act and with the public interest in minimising the time police officers spend upon off the road duties during which they will be unavailable for road safety activities. He also resisted the appellant’s argument that the 10 minute period is extendable for the purpose of the taking of legal advice, as held in Kaisuva. He said that non-availability of any right to counsel is a “reasonable limitation” during the 10 minute period in accordance with s5 of the Bill of Rights. Any such right had to operate in conformity with the time limit described by Parliament.
Mr Butler referred to this Court’s decision in Auckland City Council v Adam [1981] 2 NZLR 352 in which a prosecution for excess blood alcohol was dismissed because the blood test was taken following an election made by the defendant 39 minutes after he was advised of the result of the evidential breath test, having spent 25 minutes of that time on the telephone to his lawyer. This case was not referred to in Kaisuva or the further High Court decisions which followed it (Corles v Police, AP137/95, Christchurch Registry, 11 July 1995 and Helsloot v Police [1997] 3 NZLR 509). Mr Butler said that Kaisuva was wrongly decided and that the period spent taking legal advice is not to be excluded from the 10 minutes.
The Bill of Rights requires that s72 be applied in a manner which reasonably accommodates both the guaranteed right to counsel for a person in detention under an enactment and the statutory prescription of a limited period for the making of an election. The Adam decision, having been made before the existence of the Bill of Rights, is no longer to be regarded as authoritative save in a situation where undue delay in the taking of the blood test has been brought about exclusively or primarily by acts or omissions of the enforcement officer. Adam itself recognised that the 10 minutes is not rigid and that an enforcement officer has some discretion to allow the motorist “a little longer” to make up his or her mind “as a matter of fairness and mercy.” This, it was said, might amount to reasonable compliance with the statutory provisions. Section 64(2) states that it is no defence that there has not been strict compliance (or compliance at all) “provided there has been reasonable compliance.” Thus the statute allows for some elasticity and can be seen as creating room for the Bill of Rights to operate in a way which will adequately afford to the motorist the opportunity of taking legal advice about a blood test.
We agree with the view of the High Court in Kaisuva, Corles and Helsloot that the time reasonably taken in the exercise of the right to consult and instruct a lawyer should be excluded from the calculation of the 10 minutes. That enables both exercise of the guaranteed right under s23(1)(b) and a short period for reflection upon the lawyer’s advice and for the making of a decision. As Thomas J said in Kaisuva, “the suspect’s exercise of his right to speak to a lawyer must stand outside the calculation if the purpose of the statutory period is not to be undermined”. The s23(1)(b) right is, as he said, fundamental and is not to be eroded, which would be the effect of including the time taken to contact and speak to a lawyer within the 10 minute period:
The consultation would, or could, be carried out under pressure of time. As a consequence, the advice given by the lawyer might be hurried, not as well-considered as should be the case, or conveyed inadequately or in a manner which lent itself to be misunderstood by the suspect. (pp154-5)
We agree with Mr Eaton that only if the motorist seeks to exercise the s23(1)(b) right for the first time at this comparatively late stage of the processing would there ordinarily be a need for anything other than a short conversation with the lawyer before deciding about a blood test. If there had been an earlier telephone consultation prior to the evidential breath test and the lawyer had been doing the job properly, all the information needed to give advice upon being called back and told of the result of that test would already have been obtained from the motorist. We were advised from the Bar that the principal items of practical advice that can be given at this stage relate to the time at which a disqualification may commence, the expense of a blood test and, of course, the advisability of taking a blood test where the breath alcohol reading only slightly exceeds 400 micrograms.
It is notable that there appear to have been no operational problems arising as a result of the decision in Kaisuva and that police practices have apparently been able to accommodate it. It was obviously not thought necessary to introduce any legislative change in this connection in the 1998 Act. The transport legislation and the Bill of Rights must have been seen as working in reasonable harmony. The technical evidence referred to in Noort (p280-281) shows that the rate of decrease of alcohol in blood is sufficiently slow that there is no special urgency in the taking of a blood test. A delay for a short time will be unlikely to be crucial to the result in any but a very few borderline cases. Mr Butler was not able to draw our attention to any case in which it appeared that a suspect had abused or attempted to abuse the right when exercising it after an evidential blood test result. Ordinarily an enforcement officer would be justified in requiring any consultation with a lawyer at this stage of the procedures to be brought to an end after a relatively short period (much less than the 25 minutes in Adam). This would be justified by the enforcement officer’s implicit obligation to see that the testing procedures are completed without such delay as may compromise their overall integrity.

We would add that the police are not to be required to time the conversation with the lawyer as if with a stopwatch. Some latitude is to be allowed on both sides provided that there is in practical terms no denial of the exercise of the s23(1)(b) rights. It may be that the approach taken in Corles was overly strict as the defendant in that case appears to have had ample opportunity of exercising his rights. Arguably, on the facts of that case, where about four minutes of a period of 12½ minutes was taken up by a conversation with a lawyer, the s23(1)(b) rights were sufficiently afforded to the motorist.

Facilitation

It follows from the availability of the right to counsel during the entire process that the obligation of the enforcement officer to facilitate the exercise of the right, which this Court recognised in R v Mallinson [1993] 1 NZLR 528, also continues throughout. The obligation matches the circumstances. What is required at any particular point during the procedures will depend upon the circumstances at that time, including of course the requirements of the Land Transport Act. It is not to be overlooked that it may only be when the evidential breath test result is ascertained that the motorist appreciates that an offence may have been committed. What has to be provided in that circumstance is a fair opportunity for the detained person to consider and decide whether or not to exercise the right (Mallinson at p530). It is a question of whether the motorist has been afforded the facility “to exercise the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994) 11 CRNZ 383, 391.
Prior to the taking of an evidential breath test a full advice of rights and active facilitation of contact with a lawyer, where the motorist evinces a wish to do so, is necessary. As a matter of now standard practice, this includes supplying a telephone in circumstances of reasonable privacy and making available and calling attention to a telephone book or a list of lawyers willing to give advice to detained motorists.
It appears from material made available to the Court that, at least in some parts of the country, the police have also wisely adopted the general practice of repeating full Bill of Rights advice at the beginning of the 10 minute period regardless of whether the motorist has already exercised the s23(1)(b) right and spoken to a lawyer. This was done in the present case. The extent of the facilitation which may be necessary at this time will depend upon the circumstances in each case, including what has already occurred by way of exercise of the right and whether the motorist indicates a wish to take legal advice again before making an election in relation to a blood test. The police would at this stage of the process be justified in simply reacting appropriately to what appears to be the wish of the motorist in regard to the s23(1)(b) right without actively telling the motorist what he or she can be assumed already to understand, such as the existence of the list of lawyers where that has previously been pointed out.
Because the High Court Judge found that Ms Rae did not enjoy the benefit of rights under s23(1)(b) during the 10 minute period it was not necessary for him to determine whether the District Court Judge was wrong to find that that there had been adequate facilitation after Ms Rae expressed the wish to speak once more to the lawyer. Counsel differed on whether this Court should proceed to decide this question. Mr Butler said that we should since, he said, we are in as good a position to do so as the High Court Judge. Mr Eaton, noting no doubt the High Court Judge’s provisional view (para [23] above), asked that the matter be remitted to that Court. He said it would not be appropriate for this Court on an appeal governed by s144 to do more than determine the issues of law pursuant to the questions which have been formulated.
In the circumstances it would not, we think, be appropriate for us to take over the appellate function of the High Court Judge in relation to this question of fact although our reticence in this respect should not necessarily be taken as an expression of agreement with the Judge’s provisional view. However, that is a matter for him.

Result

The Court being unanimous, the appeal is allowed and both questions are answered in the affirmative. In relation to question 2 we would however prefer to say that detention continues during the 10 minute period rather than saying a further detention comes into existence. We remit the matter to the High Court for determination of whether Ms Rae’s rights under s23(1)(b), as they are now found to be, have been breached.

TIPPING J

Two aspects of this case have caused me some difficulty. I reach the same conclusion on each as the other members of the Court, but by somewhat different routes. The first aspect concerns the question of detention during the 10 minute period. The second relates to the proposition that the 10 minute period can and should be extended to let in, to the extent reasonably necessary, an opportunity for taking legal advice about whether to opt for a blood test.
The question of detention is difficult only in relation to whether there is detention under any enactment during the 10 minute period. If there was no such detention, it is clear that there was in this case de facto arrest in the sense that Mrs Rae must have been led to believe by the circumstances and the conduct of the police officer that she was not free to leave during the 10 minute period. Such de facto arrest, in terms of the authorities, means that the person concerned is arrested within the meaning of s23 of the New Zealand Bill of Rights Act 1990 and thus has the right to consult a lawyer without delay and to be informed of that right.
Detention under an enactment in terms of s23 means detention which is authorised by the enactment concerned. Powers of arrest or detention must ordinarily be given expressly. The Courts are traditionally reluctant to find such powers by implication, and then only if the implication is clear and compelling: Choudry v Attorney-General [1999] 2 NZLR 582 (CA).
The high-water mark of the argument that there is no detention under the Land Transport Act 1998 during the 10 minute period lies in the combination of paras (b) and (c) of s69(5). Para (b) requires a person who has been required to accompany an enforcement officer to a place under s69 to remain at that place until required to undergo an evidential breath test. The implication is that after taking that test the person no longer has to remain at the place. This is reinforced by para (c) which says that if the person has undergone an evidential breath test at the place the person must remain there until after the result of the test is ascertained. Again the implication is that after such result is ascertained the person no longer has to remain at the place. It can be seen however that para (b) viewed in isolation does not tell the full story. On its own para (b) suggests that the person may go after taking the test; but that is not right because para (c) creates an obligation to remain until the result of the test is ascertained. So already we have an indication that it is dangerous to draw any conclusions from individual provisions. Indeed viewed individually such provisions can be misleading. As always, it is a matter of reading all the relevant provisions as a whole. What else is there to assist in determining whether the implication from para (c) alone is correct, i.e. that the person can go after the result of the evidential breath test is ascertained?
The time of ascertainment and advice of the result of the evidential breath test marks the start of the 10 minute period which a person with a positive result has within which to consider whether to opt for a blood test. If a blood test is requested the person must permit a registered medical practitioner to take a blood specimen when required to do so by the enforcement officer. It must, in such circumstances, be a necessary and compelling inference that the person must remain at the place until the doctor arrives, or must accompany the enforcement officer to another place and wait there, if the taking of the blood specimen is not practicable at the first place - s72(3). So, if the blood test option is requested the person is clearly detained from the moment of the request until the sample is taken. It is difficult to conclude that during the period from the commencement of the 10 minutes to the moment the request for a blood test is made, the person is not detained. Such a hiatus of non detention would be illogical and can hardly have been intended. There is a clear and compelling expectation that the person must remain at the place while contemplating whether to have a blood test.
That implication is reinforced if one examines the matter on the alternative basis that a blood test is not sought. Indeed the question whether there is a statutory detention during the 10 minutes can hardly depend on whether a blood test is requested or not. If a blood test is not sought the person is amenable to the instant summons procedure under s19B of the Summary Proceedings Act 1957. This procedure applies to a person who has undergone either an evidential breath test, or a conclusive evidential breath test whose result exceeds 600 micrograms of alcohol per litre of breath. In the former case the instant summons procedure applies when the evidential breath test is positive and the person does not seek a blood test within the 10 minute period. In that event the result of the positive test is admissible in evidence. The present point is that the instant summons procedure is based on the premise that the person will have remained at the place until the end of the 10 minute period so the enforcement officer can serve the instant summons. That summons cannot be served until the end of the 10 minute period. This is because until 10 minutes have elapsed without a blood test being requested the positive evidential breath test result is not admissible. It is only on the elapse of the 10 minutes without any request for a blood test that the evidential breath test positive result becomes admissible and the instant summons can therefore be served on the basis of that result. There is thus an overwhelming implication, when the procedures which Parliament has prescribed are looked at as a whole, that they require the person to remain at the place throughout the 10 minutes so that the instant summons can be served on the person if, at the expiry of that period, no blood test has been requested.
This way of looking at the matter results in there being a clear implication of continuing detention throughout the 10 minute period before one gets to the application of the Bill of Rights. Had there been no such clear implication of continuing detention, I do not consider the Bill of Rights would have turned what would otherwise have been a lack of detention during this period into a state of detention. This would be to beg the question. For present purposes s23 of the Bill of Rights applies only if there is detention under an enactment. If there is otherwise no such detention I do not consider the Bill of Rights creates that detention. That would be to involve the Bill of Rights in order to afford a right which otherwise did not exist. Section 6 of the Bill of Rights does not have that effect. If there is no statutory detention apart from the Bill of Rights, I do not see s6 as creating such detention. There is no relevant inconsistency for s6 to work upon. In short, if there is no clear statutory detention before one gets to the Bill of Rights, I do not see how s6 or any other aspect of the Bill of Rights can tip the balance in favour of there being such detention. That would be to say that the Bill of Rights, which includes the right to be free from arbitrary detention, results in there being detention when no clear statutory authority to detain exists, and simply so that a right to legal advice can be held to exist during a period which would not otherwise involve detention. That seems to me to put the cart before the horse. But, that said, I agree that during the 10 minute period the person concerned is detained under the Land Transport Act 1998, not because of the Bill of Rights but by clear and necessary implication before one reaches the application of the Bill of Rights. And in any event Ms Rae was under de facto arrest because that is the impression the circumstances and the conduct of the constable reasonably created in her mind.
The second matter which I have found difficult concerns the reconciliation of the statutory 10 minute period with the right to take legal advice. In terms of the Kaisuva line of authority it is said that the time taken in obtaining that advice, provided it is no longer than is reasonable, is simply added to the statutory 10 minutes. It is necessary to do this, so the argument goes, in order to harmonise the provisions of the Land Transport Act 1998 with the right to legal advice afforded by the Bill of Rights. I very much doubt whether Parliament addressed this issue when enacting the Land Transport Act 1998. If it had done so, the point would surely have been directly addressed either by extending the 10 minute period or by making express provision for the time taken in obtaining legal advice not to count, provided it was of reasonable duration. The difficulty I have is in the process by which the precise period of 10 minutes which Parliament has prescribed is amenable to extension under the Bill of Rights. That extension is of an indeterminate length depending on what is considered a reasonable time for the taking of legal advice. What is reasonable may vary according to whether legal advice has been obtained at any earlier stage of the statutory process, e.g. before the evidential breath test is taken. How does Parliament's exact period of 10 minutes come to be extended by a contextually variable amount of time?
I do not find persuasive an approach which simply says that the statutory 10 minutes must be extended to accommodate the need for s23 of the Bill of Rights to be able to work more effectively. Parliament has said 10 minutes and that in itself can hardly mean anything other than 10 minutes. I would look first to the same statute as that in which the apparently absolute 10 minutes appears in order to see whether there is elsewhere any inherent flexibility in that length of time upon which Bill of Rights considerations might reasonably have an influence. I cannot see s6 of the Bill of Rights as having the capacity to affect the 10 minute period. There is no interpretation issue. It is impossible to create one in order to allow s6 some room to operate.
The question is whether there is within the Land Transport Act 1998 itself anything which could be seen as allowing some flexibility in the 10 minute period. The answer lies in s64(2). This says:
It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75 has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

Thus lack of strict compliance or indeed non compliance with any of the procedures is of no moment provided there has been reasonable compliance. Non compliance in a particular respect can be excused if it can still be said there has been reasonable compliance overall.

The first point which should be noted is that the 10 minute period for requesting a blood test is a facet of the admissibility of the result of the evidential breath test. Such result is not admissible if a blood test is requested within the 10 minute period. The corollary is that the result is admissible if no blood test is requested within that period. How does reasonable compliance fit into this framework? If no blood test is at any time requested following the taking of legal advice or further legal advice no problem will arise. The evidential breath test result will be admissible. The difficulty arises if a blood test is requested beyond the 10 minute period. Is it then possible to say there has been reasonable compliance and, if so, how does the concept of there being no defence fit in?
The 10 minute period represents an aspect of compliance with the statutory provisions. A person who wishes to take advantage of the right to have a blood test following a positive evidential breath test must make their request within 10 minutes. If that period has to be extended to accommodate the right to take legal advice afforded by s23 of the Bill of Rights, I consider it appropriate to say there has been reasonable compliance with the 10 minute time limit. There has obviously not been strict compliance but there has been compliance which in context can properly be described as reasonable. When a time limit is involved as an aspect of the statutory provisions the idea of not having to have strict compliance necessarily involves some extension of that time limit. The question then becomes why the extension is necessary, and how long is reasonable. The reason for the extension, i.e. to accommodate the right to take legal advice afforded by s23, is obviously a reasonable basis to extend the time limit, and the length of the extension will be reasonable so long as it is no more than reasonably necessary for the purpose.
Thus the person detained will have reasonably complied with the 10 minute time limit when the time reasonably needed for taking legal advice results in the request for a blood test being made outside the 10 minute period. The enforcement officer should therefore allow such extra time as is reasonably necessary on that basis for the making of a blood test request. The "no defence" aspect will arise, if a person who is later charged on the basis of a positive blood test, seeks to make something out of the fact that their request was made outside the 10 minute period.
This approach is consistent with the decision in Auckland City Auckland v Adam [1981] 2 NZLR 352. It is, in my judgment, preferable to the view that independently of the reasonable compliance provision, the Bill of Rights can somehow of itself add to the statutory period of 10 minutes whatever extra time is necessary for the taking of legal advice. To ascribe that effect to the Bill of Rights would be difficult to reconcile with s4 when read with s6, because it would allow the Bill of Rights directly to amend an unarguably clear statutory provision. For the reasons given I agree that the 10 minute period is capable of extension to accommodate the taking of legal advice, but I reach that result through the reasonable compliance route rather than by direct application of the Bill of Rights.
I agree the appeal should be allowed with the consequences indicated in the judgment prepared by Blanchard J.

Solicitors

Wakefield Associates, Christchurch for Appellant
Crown Law Office

SCHEDULE OF RELEVANT STATUTORY PROVISIONS

56. Contravention of specified breath or blood-alcohol limit -
(1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
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-
(a) The person has undergone a breath screening test under section 68 and it appears to the officer that the test indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath; or
(b) It appears to the officer that the person is younger than 20 and that a breath screening test undergone by the person under section 68 indicates that there is some alcohol in the person's breath; or
(c) The person fails or refuses to undergo a breath screening test without delay after having been required to do so by the officer under section 68; or
(d) The person could be required to undergo a breath screening test without delay under section 68 but cannot be tested because either a breath screening device is not readily available or for any reason a breath screening test cannot then be carried out, and there is good cause to suspect that the person has consumed drink.
(2) If it is not practicable for a person to undergo an evidential breath test at a place to which the person has accompanied an enforcement officer under subsection (1), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo an evidential breath test or a blood test (or both).
(3) For the avoidance of doubt, it is declared that an enforcement officer may require a person to accompany the officer to a place under subsection (1) if-
(a) It is likely that the person can undergo an evidential breath test at that place, whether or not it is likely that the person can undergo a blood test at that place; or
(b) It is likely that the person can undergo a blood test at that place, whether or not it is likely that the person can undergo an evidential breath test at that place.
(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).
(5) A person must-
(a) Accompany the officer to a place when required to do so under this section:
(b) If the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required either to undergo an evidential breath test or a blood test under this Act, or to accompany an enforcement officer to another place under this section:
(c) If the person has undergone an evidential breath test under this section, remain at the place where the person underwent the test until after the result of the test is ascertained.
(6) An enforcement officer may arrest without warrant a person who contravenes subsection (5).
(7) An enforcement officer may not require a person who is in a hospital or doctor's surgery as a result of an accident involving a motor vehicle to undergo an evidential breath test.
72. Who must give blood specimen at places other than hospital or surgery-
(1) A person must permit a registered 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 after having been required to do so by an enforcement officer under section 69; or
(b) The person has undergone an evidential breath test under section 69(4) (other than a test carried out by means of a conclusive evidential breath-testing device that indicates that the proportion of alcohol in the person's breath exceeds 600 micrograms of alcohol per litre of breath), and-
(i) It appears to the officer that the test is positive; and
(ii) 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), the person advises the officer that the person wishes to undergo a blood test; or
(c) An evidential breath testing device is not readily available at the place to which the person has accompanied an enforcement officer under section 69 (whether or not at the time the requirement was made it was likely that the person could undergo an evidential breath test at that place) or to which the person has been taken under arrest (as the case may be), or for any reason an evidential breath test cannot then be carried out at that place; or
(d) The officer has arrested the person under section 120(1) and has good cause to suspect that the person has committed an offence against any of sections 56 to 62, and either-
(i) A registered medical practitioner has examined the person and believes that the person may be under the influence of drink or a drug, or both; or
(ii) The person has refused to be examined by a registered medical practitioner for the purposes of this paragraph.
(2) A person who has been required by an enforcement officer under subsection (1) to permit the taking of a blood specimen must, without delay after being requested to do so by a registered medical practitioner or medical officer, permit that practitioner or medical officer to take a blood specimen from that person.
(3) If it is not practicable for a blood specimen to be taken from a person by a registered medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a registered medical practitioner or medical officer if the officer requires the person to do so.
(4) If a blood specimen taken under this section is insufficient to be divided into 2 parts in accordance with section 74(1),-
(a) The person from whom the specimen was taken must permit a registered medical practitioner or medical officer to take a further blood specimen immediately after being requested to so by the registered medical practitioner or medical officer; and
(b) A further blood specimen so taken is to be treated as part of the original blood specimen taken from the person.
(5) An enforcement officer may arrest a person without warrant if the person-
(a) Fails or refuses to accompany an enforcement officer to a place when required to do so under this section; or
(b) Having accompanied an enforcement officer to a place under this section, fails or refuses to remain at that place until requested by a registered medical practitioner or medical officer to permit a blood specimen to be taken under this section.
77. Presumptions relating to alcohol-testing –
(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.
(2) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.
(3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if-
(a) The person who underwent the test is not advised by an enforcement officer, immediately after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,-
(i) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be sufficient evidence to lead to that person's conviction for an offence against this Act; or
(ii) In the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be sufficient evidence to lead to that person's conviction for an offence against this Act; or
(b) The person who underwent the test-
(i) Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
(ii) Complies with section 72(2).
(4) Subsection (3) (a) does not apply if the person who underwent the test fails or refuses to remain at the place where the person underwent the test until the person can be advised of the result of the test.
(5) The result of a positive evidential breath test is not rendered inadmissible under subsection (3) if-
(a) The test was carried out by means of a conclusive evidential breath-testing device; and
(b) The test indicated that the proportion of alcohol in the breath of the person who underwent the test exceeded 600 micrograms of alcohol per litre of breath.
(6) If it is proved in proceedings for an offence against section 60 that the defendant failed or refused to comply with section 13 without reasonable cause, that failure or refusal may be treated, as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defendant, concerning the defendant's condition at the time of the alleged offence.

[2000] NZCA 156

10 August 2000