IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI 2018-454-13
[2018] NZHC 3380
BETWEEN MARCUS KONRAD WELBY TAMAIRA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 November 2018 Counsel:
P L Murray for Appellant
M G Wilkinson and S P Poulton for Respondent
Judgment:
18 December 2018
JUDGMENT OF SIMON FRANCE J
[1] Following a motor vehicle accident involving a car which he was driving, Mr Tamaira was located at a petrol station. He had walked there in order to ring a taxi. It was apparent he had been drinking. Breath alcohol procedures were initiated. The ultimate outcome was a blood alcohol reading of 243 mg of alcohol per 100 ml of blood, nearly five times the legal limit.1 Mr Tamaira was duly convicted.2
[2] On appeal Mr Tamaira renews a challenge to the process by which that blood alcohol reading was obtained. It is claimed that in the early stages of the process there was non-compliance with statutory procedures, and a short period of unlawful detention, the consequence of which should have been exclusion of the blood alcohol evidence.
1 Land Transport Act 1998, s 56(2) and (2A).
2 New Zealand Police v Tamaira [2018] NZDC 18334.
TAMAIRA v POLICE [2018] NZHC 3380 [18 December 2018]
[3]The procedural route to the blood alcohol test, was:
(a)a passive screening test that recorded the presence of alcohol;
(b)a breath screening test that gave a reading over the statutory limit;
(c)an evidential breath test which did likewise; and
(d)as requested by Mr Tamaira, a blood alcohol test.
[4]Two challenges are made here:
(a)first, it is submitted it was not established on the evidence that the second step of a breath screening test was done at all; and
(b)second, if it was, the method by which it was done is said to have involved an unlawful detention requiring exclusion of evidence as a response.
Was there a breath screening test?
[5] Mr Tamaira was located by police at the petrol station where he had gone to ring a taxi. The police officer had in his hand an alcohol screening device. This device performs two functions. A passive screening test can be done by requiring the driver merely to speak into the device. It will read positive or not to the presence of alcohol. The device can also be used for the breath screening process but this requires a plastic tube to be fitted to it. The driver then blows into it and an actual reading is obtained, although it will only be something such as “over 400” (the previous limit).
[6] CCTV footage of the incident appears to show that inside the petrol station the device being carried by the police officer did not have a tube attached, nor did the officer appear otherwise to be carrying one. Consistent with this, the officer testified that he keeps the tubes in the police car. Mr Tamaira can be seen to speak at the…
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- [2018] NZHC 3380
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