Drink driving cases could be reviewable

In Legal Lines, November 20206 MinutesBy Danielle BestonDecember 22, 2020

While the police have chosen not to appeal against any adverse decisions, it is interesting to note that they have now changed the wording in section J of the form to include the word ‘conviction‘.

As many of you may now be aware, there have been several District Court decisions where driving with excess breath alcohol charges have been dismissed on the basis of the wrong advice being provided by police to motorists. However, there have also been District Court decisions going the other way where this defence has been unsuccessful. The solicitor-general has now applied to the Court of Appeal under section 313 of the Criminal Procedure Act 2011 to have a solicitor-general‘s reference in relation to this issue in order to settle the matter once and for all. The Court of Appeal has accepted that there is a question of law and has instructed that the hearing be set down as a matter of urgency.

Prosecution vs conviction
When a motorist fails a roadside breath-screening test they are required to accompany the police to undergo an evidential breath test. While conducting testing procedures the police use a form which prompts them to give people their rights. These rights include being given the opportunity to speak to a lawyer and to elect to give a blood specimen. This form is called the ‘Breath and Blood Alcohol Procedure Sheet‘ and has 16 sections labelled from A through to P. What has been happening is that after returning a positive evidential breath test, the advice provided to motorists by the police has been inconsistent with s77(3) and (3A) of the Land Transport Act 1998 (‘the LTA‘). The advice motorists have been receiving was that if they did not within 10 minutes request a blood test, the evidential breath test they had just undergone could, of itself, be conclusive evidence in a prosecution against them. We know this was the advice being given by the police because this was wording used in section J of the Breath and Blood Alcohol Procedure Sheet. By contrast, s77(3A) of the LTA requires that a motorist is advised that the evidential breath test they have just undergone could of itself be conclusive evidence that could lead to their conviction. The argument is that the failure to provide the appropriate advice is fatal to a prosecution for drink-driving.

Drink-driving infringement notices
Since December 2014 there has been a two-tier drink-driving offence regime under the LTA. An adult with a positive breath test between 250 micrograms and 400 micrograms of alcohol per litre of breath commits an infringement offence where there is no conviction and no disqualification from driving, but the offence does attract a fine and demerit points. A positive test over 400 micrograms of alcohol per litre of breath is an imprisonable offence which can lead to a conviction and disqualification from driving. Judges who have been dismissing drink-driving charges have reasoned that there is a material difference in the meaning of the words ‘prosecution‘ and ‘conviction‘ in light of the new two-tier regime. While the police have chosen not to appeal against any adverse decisions, it is interesting to note that they have now changed the wording in section J of the form to include the word ‘conviction‘.

What can be done about it now
The error in section J of the form could potentially lead to six-years‘ worth of similar convictions being appealed because the old form has been used for roughly that length of time. It is estimated that this could affect up to 85,000 drink-driving convictions. So not only does it affect people who currently have active charges before the court, but also people who have drink-driving convictions within the past six years who were unaware that they had a potential defence to the charge at the time they entered their guilty plea. The courts have been taking a pragmatic approach to the problem by adjourning active cases before the court to a call-over hearing to await the result of the solicitor-general‘s reference. For people who have convictions for drink-driving during the relevant period, they can file a notice of appeal against conviction to preserve their position in the event that the solicitor-general‘s reference upholds the defence. That means that if the decision is favourable, then it may apply retrospectively to all appeals that were filed prior to the release of the decision. However, there is no guarantee that even if the court finds in favour of the defence, it will rule that the decision applies to earlier cases, but you have to be in to win!