Application to dismiss charges — admissibility of evidence — excess breath alcohol — evidential blood test — statutory 10-minute period — effective communication — Land Transport Act 1998, ss 72 & 77(3)-(3A) — Boyd v Auckland City Council [1980] 1 NZLR 337 — Lyons v Ching (1983) 1 CRNZ 69 — Lind v Windhausen [1979-1983] BCLD 1742 — Tuineau v Ministry of Transport [1984-1988] BCLD 3722 — Lloyd v Ministry of Transport [1979-1983] BCLD 411 — Bason v Ministry of Transport HC Hamilton M38/84, 10 May 1984 — R v Buchanan [2008] NZCA 480 — Police v Briggs [2020] NZDC 11392 — Police v Kusek [2019] NZDC 14473 — Police v T [2020] NZDC 12166. The defendant faced one charge of driving with excess breath alcohol, having undergone an evidential breath test. Counsel for the defendant challenged the admissibility of that result, arguing that the defendant had not had advice regarding the possibility of an evidential blood test effectively communicated to him by the police officer, and the charge should therefore be dismissed. Under s 77 of the Land Transport Act 1998 (LTA) a person who has failed an evidential breath test has a 10-minute window in which to inform an enforcement officer that they wish to undergo an evidential blood test, otherwise the breath test result could be used as conclusive evidence in a conviction against them. A misunderstanding as to this time period arose in the circumstances: the defendant had been under the impression that he had to wait the 10-minute period and then inform the officer, instead of informing the officer during the 10-minute period. This impression was aided by the fact that the defendant had attempted to ask the officer some questions and had been told he wasn't allowed to talk to the officer during the 10-minute period. The defendant, in his evidence, stated he would have elected have the blood test and informed the officer during the 10-minute period had he known this was what was required. The Judge found that the advice regarding the 10-minute period had not been properly communicated to the defendant and, in any case, the wording of the police check list J5 form was inconsistent with the statutory framework, noting the difference in meaning between conclusive evidence "in a conviction against" (as in the LTA) and "in a prosecution against" (as in the J5 form) a person. The Judge held that the legislative criteria had not been met by the police officers, and dismissed the charge against the defendant. Judgment Date: 22 July 2020.