Reserved judgment — evidential breath test — driving with excess breath alcohol — delay — Land Transport Act 1998, s 64(2), 77(3) & 77(3A) — Kydd v Police, High Court Christchurch, CRI-2007-409-134 and 136 — Kavanagh v Police, HC Christchurch CRI-2005-409-231, 27 February 2006 — McCarthy v Police, HC Wellington AP312/02, 19 February 2003 — Ariki v Police, HC Auckland CRI-2007-404-174, 6 November 2007 — Talwar v Police [2013] NZAR 291 — Police v Tolich (2003) 20 CRNZ 150 (CA) — R v Aylwyn (2008) 24 CRNZ 87 — Police v Briggs [2020] NZDC 11392 — Police v Kusek [2019] NZDC 14473 — Police v Dezpot [2015] NZDC 20922 — Police v Tolich, High Court, Auckland, A175/02, 10 December 2002 — Police v Tolich (2003) 20 CRNZ 150. The defendant was stopped by Police after driving through an orange light, admitted consuming alcohol and was required to undertake a passive breath test which showed the presence of alcohol. The defendant failed to complete the breath screening test and subsequently accompanied the Constable for the purposes of an evidential breath test, blood test or both. The issues the Court considered were whether the period of time from the evidential breath test to the advice (of the consequences of a positive result) explained by the Constable to the defendant constituted undue delay; and whether the advice contained at Block J5 of the Breath and Blood Alcohol Procedure Sheet complied with s 77(3A) of the Land Transport Act 1998. The Court found on the first question that the defendant engaged the Constable in answering questions about the process and as such there was no undue delay and s 77 was complied with. On the second question, the defendant had been informed 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 Act which states that it could be used as "conclusive evidence to lead to a conviction" against the defendant. The police were required to make a person subjectively aware of this. The Judge agreed that the discrepancy in wording meant the evidence was inadmissible. The defendant's choice to elect a blood test meant that the Police could not rely on the result of the evidential breath test. The Judge concluded that the discrepancy in wording meant that the evidential breath test was inadmissible, and as such the result of the subsequent blood test was not able to be admitted in evidence against him. The charge was dismissed. Judgment Date: 15 July 2020