Appeal upheld

Press, 9 October 1982, Page 7

Appeal upheld

An appeal against a conviction for driving with excess alcohol has been upheld on a legal technicality in a reserved decision. The appeal was heard before Mr Justice Quilliam in the High Court at Christchurch on September 1. Christopher James Ward was found guilty of driving a motor-cycle with 700 micrograms of alcohol per litre of breath on January 22,1981 in the District Court on April 27 that year. “There has been a very long delay due to difficulties in transcribing the evidence as the tape recorder failed to function properly. That delay is unfortunate, but it cannot affect the outcome of the appeal,” his Honour said in his reserved decision. Ward had been given a breath test after being stopped by a traffic officer. The test was positive, and Ward was taken to the police station. There, an evidential breath test was given and the 700 microgram reading was obtained. Two. legal matters were argued on appeal. The first said that. the prosecution failed to prove that the traffic officer had failed to comply with one of the steps in the standardised procedure of administering a breath test. His Honour dismissed this ground for appeal. It was no fault of the traffic officer that he did not address his answer to the detailed proce-

dures. during the court hearing, he said. “If the question put to him plainly required such an answer, the position may have been different. But I think it is clear that he was simply relying on his general description of the step, and that was sufficient until he was expressly challenged,” he said. The second submission was that the prosecution failed to prove compliance with part of Section 58 of the Act, which says that “the result of _ a positive breath test shall not be admissible in evidence if the person who underwent the test is not advised by a traffic officer that the test was positive and that, if he does not request a blood test within 10 minutes, the test could itself be sufficient evidence to lead to his conviction.” “The way in which part of Section 58 is expressed places an emphasis on the consequences of not requesting a blood test. That consequence is that the result of the breath test will be sufficient evidence for a conviction. The question is whether this consequence was sufficiently conveyed to the appellant,” his Honour said. “The crux of the matter is that it is the consequence of not requesting a blood test which must be placed squarely, in front of the driver. In this case, it. was not.”