Prospect of sweeping changes in prosecuting drinking drivers

Press, Volume CXIII, Issue 33191, 3 April 1973, Page 20

Prospect of sweeping changes in prosecuting drinking drivers

<By

RALPH BROWN)

It may soon be no longer an offence to drive with an excessive proportion of alcohol in. the bloodstream, or to refuse to supply a sample of blood as prosecution evidence.

Drinking drivers would Kill be prosecuted, of course, but a reoort to be presented to the Parliamentary Select Committee on road safety on Wednesday may advocate the use of a new calibrated breath analyser which could replace the nightly bloodletting in New Zealand’s police stations. If the device is adopted, a new offence of driving with an excessive percentage of alcohol in the breath would have to be drafted. The new calibrated breath analyser is a small, portable instrument which can be carried in a patrol car. It costs about $l2OO. A stylus is used to record, on a card, the percentage of alcohol in a suspect’s breath —and the result is said to be accurate enough to be the basis of a conviction. In an interview, the chairman of the Parliamentary road safetv committee and member of Parliament for New Plymouth (Mr R. M. Barclay) said he was personally enthusiastic about the calibrated breath tester, which be had seen used by patrolnjgn in the United States and Britain. SAVING OF TIME He was particularly inv pressed by the time the police saved in using the device. The test takes a patrolman away from his normal duties for only 10 to 15 minutes. In New Zealand, police constables and traffic officers can be off the road for more than an hour while two breath tests are administered and a blood sample is taken at a police station; and even then, the blood samples must be analysed by staff of the Department of Scientific and Industrial Research.

Some authorities considered the new device produced more accurate results than blood tests, though ’here were several schools nt ooinion, Mr Barclay said. He believed that some of the staff of the Ministry of Transport were not as impressed with it as he was, but he did not know how deeply they had examined it. Mr Barclay considered that with road-safety research overseas continuing

at its present pace, the model i he had studied could be 1 obsolete within possibly a i year or less. But he firmly believed in the principle of breath-testing — a view . shared, he said by the Brit- i ish Medical Association and <

some of the world’s foremost experts in forensic medicine. A possible competitor designed by two British scientists, Dr T. P. Jones and Dr B. M. Wright, will soon be tested in Wales and the United States. The model has the advantage of being considerably cheaper than the one advocated by Mr Barclay. It employs a specially designed fuel cell which generates a voltage from the alcohol it collects from the breath. INTRICATE PROCEDURE The report to be presented to the Parliamentary Select Committee on road safety was prepared by Chief Superintendant D. F. Ross, of the Ministry of Transport in Wellington. The report was called for by the former Minister. Mr J. B. Gordon, when Mr Barclay returned from his study tour in April last year — firmly convinced of the value of the calibrated breath-testing device he had seen. The future of the device is, at this stage, a matter of speculation; but certainly the Parliamentary committee will have to weigh the merits and failings of the blood-alcohol law against it. The device would eliminate ,the present intricate procedure for taking tests of both breath and blood, which is time consuming, expensive, and has accounted for the dismissal of charges against drivers with allegedly high blood-alcohol concentrations. To be fair to all concerned, charges dismissed or withdrawn are rare. Most defendants, confronted with carefully prepared legal and clinical evidence against them, or for other reasons, plead guilty. But the charges dismissed almost always fail because of •‘procedural errors" by the Ministry of Transport or the police. Anv loopholes in the law which could be exploited by

a defendant appear to have been closed, and defence counsel new rely on flaws in the prosecution case. The prosecutions department of the Christchurch police insists that the process of collecting information for a successful prosecution is a simple one — a matter of routine. In spite of this, prosecutions do fail, and for reasons that suggest that a form of testing which removes the need for blood

tests would be an improvement if a high standard of accuracy can be maintained. REQUIREMENTS The law requires many I steps to be taken between the time a motorist is stopped on the road and his convic-

tion in court. The police constable or traffic officer must show that he had “good cause to suspect” that an offence had been committed. The breath tests he gives must be administered in the approved manner, and at least 20 minutes apart. If the result is positive, the suspect’s blood contains more than 80mg of alcohol per 100 ml of blood (the legal limit is lOOmg of alcohol) and he must accompany the constable or traffic officer to a police station for a sample of blood to be taken. A doctor must sign a certificate saying that he took a sample of the suspect’s venous blood “according to normal medical procedures.” The sample must be divided' into two parts, sealed and) labelled in the prescribed! manner. The blood must then I be handed to the appropriate (and named) constable or traffic officer. One sample must then be delivered personally or by registered mail to the Dominion or Government Analyst, or an “officer of the D.5.1.R.” The other sample is available to the defence for independent analysis. The prosecution’s analyst also signs a certificate. He must state the proportion of alcohol per 100 ml of blood he found in the sample, with his qualifications and authority to test blood. An amendment to the Transport Act permits blood samples to be taken from accident victims being treated in hospital, and an official procedure is set down. Permission of the defendant is not necessary, though a doctor must examine him and be satisfied that the 'loss of blood would not hinder his recovery. Many former patients have been prosecuted; but recently :the police withdrew a small number of charges after the dismissal of a charge asising from the analysis of blood taken from a defendant in hospital. A procedural error in collecting the samples from the hospital was cited as the reason. The error, a minor one. I has since been corrected. MISTAKES CONTINUE ' A clause added to the I Transport Act in 1970 allows . the prosecution some latitude by saying that “reasonable compliance" with the accepted procedure is sufficient for a conviction. In spite of this, 'mistakes continue to account for a few unsuccessful prose--1 cutions:

A driver sitting in his highpower sports car parked in a street admitted he had been driving and showed symptoms of drunkenness. Two breath tests gave positive results. A blood sample on analysis showed a bloodalcohol concentration above the legal limit. The driver was sufficiently intoxicated to believe that he was in another location, and informed passers-by of that opinion.

I The charge against him was (dismissed when counsel established that the doctor who had taken the sample of blood had crossed out the words in the certificate saying which named constable he had delivered it to, and substituted a note indicating the number of a locker he had placed it in for collection. No evidence was called! to show that the constable had, in fact, uplifted the I sample and delivered it to the D.S.I.R. In another case, a traffic! officer told the Magistrate' that he had noted the time: of the first breath test, and had given the second “about” 20 minutes later. In dismissing the charge, the Magistrate ruled that the time interval was a crucial matter, an estimate being not sufficient for a conviction. Another charge was dismissed because a doctor’s certificate indicated only that a “sample of blood” was I taken. The prosecution had been unable to prove that I the sample was the required | venous blood. “REASONABLE COMPLIANCE" In another defended hear-i ing, a traffic officer outlined the steps he had taken ini administering the breath-test-ing devices. The prosecutor) did not notice the officer’s' evidence indicated that he; had attached the mouthpiece |on the wrong part of the! bag. The charge was dis-1 missed. Counsel admitted I later and he thought the' officer probably gave the | tests correctly, but it was not for the defence to correct I his evidence. Another indication of the . way the clause requiring “reasonable compliance” is interpreted by the courts was I given in comments made by Mr Justice Wilson in the Supreme Court at Greymouth in March, 1972. He allowed an appeal by the Crown, saying: “In my opinion, the intention of the Legislature in enacting this provision was to do away with objections by a defendant, based on a failure by a constable or traf-1 fic officer to comply with the | procedural steps laid down) for the taking of breath and| blood tests in precise detail, where that deviation was not: one of substance. In short, [the object of the sub-section' |was to negate possible! defences that were devoid of! j merit.” The amended law undoubt-j ledly eases the burden on the! 'prosecution, but a major) Financial ADVANCES made to $5O, without ! security. Up to $5OO with approved security on motor vehicles and household effects Management Aides N.Z., Ltd. 153 Hereford St. Ph 67-258. . D ADVANCES made for private and business purposes on household effects. motor vehicles, business or any suitable security. The Canterbury Finance Corporation, Ltd, 303 Durham St West. Ph. 64-264. THS MONEY: $2O upwards. Confiden tlal. W. A. Pickup and Co. 204 Cashel Street Ph 64-792 O $lOO,OOO of contributory first mortgage money is required for excellent real estate investment securities. Registered values recommendations. Interest 8J per cent flat, payable half yearly. 3 or 5 year terms. Minimum $5OO. Write P 3342. "Press.” 447

.hurdle remains which no i accurate breath-testing device can eliminate. This is the 'obligation to show that the i constable or traffic officer had “good cause to suspect” that an offence had been committed.

i The Minister of Transport '(Sir Basil Arthur) has said ■ that he favours random 'breath-testing, which would make the requirement of “good cause to suspect” reidundant. However, Sir Basil Arthur also said he would not ;dictate to the Parliamentary Iroad safety committee, which iis opposed to random testing. The two decisions — on the future of both calibrated breath-testing devices and random testing — offer the prospect of sweeping changes in the prosecution of drinking drivers.