New Zealand Police v Fraser [2017] NZDC 7387

Published 13 July 2017

Admissibility of evidence — evidential breath test — right to consult a lawyer — reasonable attempt — drink driving — category two — charges dismissed — Evidence Act 2006, s 30. The defendant was stopped by police whilst driving a motor vehicle and was required to accompany the police following a breath test. The court was asked to determine the admissibility of a breath test. The defendant made a request to speak to a lawyer, and the police attempted to contact a total of eight lawyers before he undertook an evidential breath test, and made a second request following that test. The court found that as the eight attempts were unsuccessful, the police had not made a reasonable attempt as they had not continued to attempt to contact a lawyer in order for the defendant to receive advice about participating in a blood test. The court found that attempting to contact one further lawyer would have been reasonable following the second request to speak to a lawyer. The defendant's rights were found to have been breached, and the evidence relating to the evidential breath test were excluded under s 30 of the Evidence Act. In the circumstances, the charges against the defendant were dismissed. Judgment Date: 5 April 2017.