Judge-alone trial — excess breath alcohol — breath screening — evidential breath test — right to have or refuse blood test — compliance with process — “place” — right to privacy —admissibility of evidence — credibility and reliability as witness — Land Transport Act 1998, ss 56(1), 64(2) & 69 — New Zealand Bill of Rights Act 1990, ss 14 & 21 — Evidence Act 2006, s 30 — Criminal Disclosure Act 2008 — Summary Offences Act 1981, s 23(a) — Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297, cl 5 — R v Livingston [2001] 1 NZLR 167 (CA) — Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 — Birchler v Police [2010] NZSC 109, [2011] 1 NZLR 169 — R v Gallagher [1991] 3 NZLR 163 (CA) — ANZ National Bank Ltd v Commissioner of Inland Revenue (2005) 18 PRNZ 114 (HC) — Richards v R [2014] NZCA 520 — R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 — R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 — Grainger v R [2017] NZCA 621 — Duffy v Police [2015] NZHC 1899 — Ahuja v Police [2019] NZCA 643 — Denney v R [2017] NZCA 80 — Phillips v R [2017] NZHC 1511 — Lanivia v R [2018] NZCA 424 — Peters v R [2020] NZCA 120 — Robertson v R [2020] NZCA 658 — King v Police [2018] NZHC 1213 — Scott v Ministry of Transport [1983] NZLR 234 (CA) — R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 — R v Pratt [1994] 3 NZLR 21 (CA) — McGrath v Police HC Auckland CRI-2011-404-110, 20 December 2011 — Police v McGrath [2013] NZCA 3 — S v Police [2018] NZHC 1582, [2019] 2 NZLR 392 — Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 — Vosseler v Police HC New Plymouth CRI-2009-443-31, 27 May 2010 — Bignell v Police [2014] NZHC — Police v Ellis HC Dunedin AP93/93, 2 November 1994 — Whiting v Police HC Nelson CRI-2010-442-000014, 20 August 2010 — Baxter v MOT (1990) 6 CRNZ 445 (HC) — Butterworth v Police (2000) 18 CRNZ 122 (HC). The defendant faced one charge of driving with a breath alcohol level of over 400 micrograms. The onus was on the prosecution to prove beyond a reasonable doubt that: the defendant was driving or attempting to drive a vehicle; on a road; the proportion of alcohol in the defendant’s breath exceeded 400 mcg of alcohol per litre of breath; and the proportion of alcohol in the defendant's breath was ascertained by an evidential breath test undergone under s 69 of the Land Transport Act. At issue was whether the evidential breath result was admissible. Counsel for the defendant challenged the manner in which the breath test had been obtained. The Court had to consider: whether the officer's note on the application of the defendant apparently electing not to have a blood test was admissible despite not complying with the Chief Justice's Practice Note on police questioning; whether the roadside where the evidential breath test was conducted was a "place" as envisioned by the legislation and whether this afforded sufficient privacy for the defendant, and whether the defendant's rights were breached by any restriction on his cellphone use. With regards to the officer's note, the Court considered the evidence of the police officer and the defendant as to the circumstances surrounding the obtaining of the breath test, and preferred the evidence of the police officer. The defendant's evidence was inconsistent. Having also considered the case law around technical breaches, the Court concluded that despite not complying with the practice note, it was a minor breach. Even if the evidence had been improperly obtained, the Court would have admitted it under s 30 of the Evidence Act as exclusion of the evidence would be disproportionate. On the issue of where the evidential breath test had been conducted, the Court found that the roadside was a "place" for the purposes of the legislation and that the defendant's right to privacy had not been breached. The Court also concluded that the defendant had not been precluded from using his cellphone during the 10-minute period in which he was offered a blood test. The Court was satisfied that all elements of the charge were therefore proven beyond a reasonable doubt. Judgment Date: 5 June 2024.