Appeal against conviction for driving with excess breath alcohol – Land Transport Act 1998, s 70A – 10-minute period for driver to consider the election of a blood test following a failed evidential breath alcohol test – did the presence of a police officer in the back of the police car with the driver render the 10-minute period interrupted?
Wood v Police [2024] NZHC 1825 per Gordon J
Simon Wood was stopped at an alcohol screening point on Adelaide Road, Berhampore, Wellington on 24 May 2023. He underwent a breath screening test and failed. He was then required to accompany the police officer to the patrol vehicle.
After being advised of his rights, Wood underwent an evidential breath test and returned a positive result (533 micrograms of alcohol per litre of breath). The police officer then advised Wood that he could elect to complete a blood test within 10 minutes. Wood acknowledged this advice.
For approximately 12 minutes (between 5:47 pm and 5:59 pm), the police officer sat next to Wood (in silence) in the back of the patrol vehicle. Wood did not elect to complete a blood test.
Wood was charged with driving with excess breath alcohol. After a judge alone trial in the District Court, he was convicted.
Wood appeals against his conviction, arguing that the police officer did not allow him an uninterrupted 10-minute period to consider the election of blood (as required by s 70A Land Transport Act 1998) because the officer’s mere presence constituted a total interruption that was intrusive, a distraction, and served to impede rational and free decision-making.
Applicable principles: Land Transport Act 1998, s 70A – 10-minute period for driver to consider the election of a blood test following a failed evidential breath alcohol test – did the presence of a police officer in the back of the police car with the driver render the 10-minute period interrupted?
Held: The appeal is dismissed. The purpose of s 70A (1) Land Transport Act 1998 is to give drivers sufficient time for reflection on whether or not to accept the results of the evidential breath test or to seek a blood test. Wood had a silent and uninterrupted 10-minute period to consider whether to elect to have a blood test. The fact he was seated in the rear of a patrol vehicle with a police officer, who remained silent, did not interrupt the 10-minute period.
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