New Zealand Police v Josy Kirton [2016] NZDC 3801

Published 01 August 2016

Admissibility of blood sample — driving under the influence — Land Transport Act 1998, ss 12, 58, 71A — McMullen v Police High Court Hamilton CRI 2011-419-000076 — Police v Anderton [1972] NZLR 233. The Judge determined that a blood sample obtained was admissible as evidence for a charge of driving while under the influence of drugs or alcohol or both to such an extent as to be incapable of having proper control of the vehicle. The defendant had at least two previous convictions for an offence against the excess blood and breath provisions of the Land Transport Act, which would be relevant to sentencing if found guilty. The three elements of the testing regime from McMullen were: good cause to suspect use of a drug by a driver; non-completion or not suitable completion of the compulsory impairment test, and finally the result of the required blood test disclosing the presence of a specified drug or drugs. The defence submitted that there was not good cause to suspect, and secondly that the impairment testing form had been filled in by the officer in a way which indicated the defendant had satisfactorily completed the test; there were therefore no grounds for a blood sample to be taken. The Judge rejected the submissions of the defence, and accepted the officer had good cause to suspect. Anderton was referred to as providing the appropriate standard, which had been met by the officer’s impression of the vehicle’s speed and near miss of another vehicle, the defendant’s drooping eyelids and bloodshot eyes, as well as the defendant’s stumbling slightly when leaving the vehicle and admitting to use of cannabis in the last 48 hours. The evidence of the officer was accepted that circling the provision of the form referring to completion indicated the test had been completed, not that the defendant had passed the test. Accordingly, the blood sample obtained indicating the presence of methamphetamine and cannabis was admissible.