Reserved judgment — excess breath alcohol — evidential breath test — right to consult lawyer — conclusive evidence — subjective understanding — Land Transport Act 1998, ss 64(2), 75A & 77(1)-(3A) — New Zealand Bill of Rights Act 1990 — Evidence Act 2006, s 30 — Ahuja v Police [2019] NZCA 643 — Tolich v New Zealand Police HC Auckland A175/02, 10 December 2002 — New Zealand Police v Gagas [2015] NZDC 25831 — New Zealand Police v Kusek [2019] NZDC 14473 — New Zealand Police v Dezpot [2015] NZDC 20922 — New Zealand Police v Tolcher [2016] NZDC 11890 — New Zealand Police v Brodie [2016] NZDC 11797 — New Zealand Police v Mumford [2016] NZDC 13408 — New Zealand Police v Wynyard [2016] NZDC 18766 — New Zealand Police v Durkin [2017] NZDC 5138 — New Zealand Police v King [2017] NZDC 15166 — New Zealand Police v Hipkins [2018] NZDC 4465 — Scown v Police [2015] NZHC 106 — R v Mallinson [1993] 1 NZLR 528 (CA) — Birchler v Police [2010] NZSC 109. This was an application for a dismissal of a charge laid under the Land Transport Act ("the Act") for a breach of s 77(3) & (3A) of the Act and a breach of the New Zealand Bill of Rights Act. The defendant had been involved in a traffic incident and when police attended the scene they spoke to the defendant, who admitted she had been drinking earlier that day. A breath screening test was conducted, and the defendant failed. The police then required the defendant to accompany them to the police station for an evidential breath test producing a result of 889 micrograms, well above the 400 microgram limit for an imprisonable offence against the Act. The defendant was informed of this and given 10 minutes to elect a blood test to prove the accuracy of the breath test. The defendant asked to phone her father to put her in touch with a lawyer, but she was told this was not possible and was given a duty lawyer. She was subsequently charged under the Act. At issue was whether she had been given adequate opportunity to consult a lawyer, and whether she had been correctly informed of the implications of undertaking an evidential breath test, as per the wording of the Act. The Judge determined that, in line with Ahuja, the defendant should have been given the opportunity to phone her father, who was readily available and willing to help, to obtain the contact details of a lawyer of his choice rather than be assigned a duty lawyer. On the second issue, counsel for the defendant argued that the defendant had been informed, as per the Police checklist, that the evidential breath test could be used "in a prosecution against" her, 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, which have different meanings. 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, departing from a previous decision. The defence of "reasonable compliance" was not available. The charge against the defendant was dismissed on both grounds. Judgment date: 18 June 2020.