Dismissal of charge — excess breath alcohol — evidential breath test — reasonable compliance — Land Transport Act 1998, s 77(3A) — Police v Tolich [2003] 20 CRNZ 150 — Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 — Police v Brodie [2016] NZDC 11797. The defendant had been charged with excess breath alcohol following an evidential breath test. Counsel for the defendant argued that the evidence was inadmissible and that the charges should be dismissed as the Police had not complied with s 77(3A) of the Land Transport Act (LTA). The wording in the Police checklist was that the evidential breath test could be used "in a prosecution against" him, which is inconsistent with the wording of s 77(3A) of the LTA which states that it could be used as "conclusive evidence to lead to a conviction" against the defendant. The Judge agreed that these have different meanings and therefore the provision had not been complied with. A defence allows for "reasonable compliance" of the provisions, which often turns on the context of a particular case. The Judge found that the there had not been reasonable compliance on the facts and dismissed the charge. Judgment Date: 21 June 2019.