Breath-testing inside people’s homes

In Legal Lines, May 20217 MinutesBy Danielle BestonJune 5, 2021

I am often asked about when the police may enter a home and conduct a breath test. In my view, the law needs to be clarified to let people know they can refuse police entry to their homes in some situations. This month, I’m going to discuss when you can shut the door to the police and when you do have to let them in.

Entry without permission

If the police have a warrant issued by the court, you legally have to let them in. Police can also enter to seize evidence, but only if they believe it will be destroyed while they wait to get a warrant. In situations where a crime is being committed, or there is an emergency that is threatening somebody’s life or safety, the police can also enter without your permission.

The police are allowed entry into your home without a warrant to enforce specific laws such as those relating to immigration and animal welfare. Section 119 of the Land Transport Act 1998 specifically gives police the power to enter without your permission if you’ve been involved in a police pursuit because an officer believes you were drinking and driving.

Implied licence to enter

Any member of the public, including police officers, are permitted to enter your property to communicate with you. This is known as an implied licence to enter private property. However, there are limits to this. Generally, they would not be allowed to go further than the back or front door without an express licence in the form of an invitation from you to come inside. If you do agree to let a police officer enter your home, you can change your mind at any time. In most cases, they then have to leave straight away. If they fail to do so, then they are a trespasser.

Breath testing

The Land Transport Act 1998 gives the police the power to stop drivers and ask them to undergo a breath test. You can be pulled over at any time if the police suspect you have been drinking or taking drugs either before or while driving. Police can also stop any driver at a breath-testing checkpoint. As noted previously, if the police have pursued you and they believe you were drinking and driving, then they have the power to breath-test you in your own home. However, if the police are not in fresh pursuit, they cannot carry out a breath test in someone’s home unless they are invited in, and the person consents.

Recent examples

The High Court set aside the drink driving conviction of artist Lee Torres Calderon after finding the police illegally entered his bedroom to breath-test him in 2016. In the early hours of the morning of 11 January 2016, Torres Calderon crashed his car into the rock wall at the entrance to Rannoch House where he was living. One of the residents called an ambulance to attend to a wound, and another gave Torres Calderon a large glass of red wine as he was shaking and upset after the crash. A police officer entered Torres Calderon’s bedroom through a back door and asked him to undergo breath tests. Torres Calderon was a recent immigrant to New Zealand and did not realise he could ask the constable to leave or refuse to take the breath tests, which he later failed.

Justice Duffy said in her judgment that the police had implied licence to enter a property, but that extended no further than was necessary to communicate with the occupant, and they needed permission to go any further. She found that Torres Calderon had not given the police officer consent to enter his bedroom, which meant the breath test was unlawfully obtained. He had innocently drunk a large glass of wine in the almost two-hour gap between the crash and the breath tests, and there was no evidence to suggest he was over the legal limit when the incident occurred.

In 2018, Paul Gordon Davey won an appeal against his convictions for refusing to permit a blood specimen to be taken and resisting police arrest. Justice Brewer found that the officer who arrested Davey when he refused a breath test didn’t have permission to be on the property and, therefore, Davey was unlawfully arrested on his driveway. The incident began when a member of the public reported a car driving erratically. This car was located in the driveway of a house, and the police officer walked up the driveway, where he found Davey.

Davey challenged the officer’s right to be on the property and refused to do a breath-screening test or go with the officer to do an evidential breath test or give a blood specimen. The officer then arrested him, and Davey resisted by stiffening his body and refusing to walk. Justice Brewer said that a police officer had the right to walk onto a residential property for a lawful purpose, but if he is subsequently asked to leave and he refuses, then he becomes a trespasser. This was not a case of the police officer being in fresh pursuit of a drink driver and, therefore, the officer was not entitled to arrest Davey and his resistance to being arrested was not unlawful.

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.