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New Zealand Police v Pinnell [2020] NZDC 13852

Published 30 June 2022

Driving with excess blood alcohol — Breath & Blood Alcohol Procedure Sheet — breath test — blood test — dismissal of charge — Land Transport Act 1998, ss 70A & 77 — Sentencing Act 2002, 106 — Criminal Procedure Act 2011, s 147 — Dunbar v R HC Rotorua CRI-2011-463-000004, 28 April 2011. The defendant faced a charge of driving with excess blood alcohol. He had been stopped by police and had failed a breath test. He was then given the statutory 10-minute period to decide if he wanted a blood test as well. He did not choose to take a blood test once the 10 minutes expired, and was charged on the basis of the positive breath test. The issue at trial was whether on expiration of the 10-minute period the arresting officer had an obligation to ask if he chose to take a blood test. The arresting officer gave evidence that the defendant had said prior to the 10-minute period beginning that he did not want a blood test, and so the officer believed that he was not obliged to ask again at the end of the 10-minute period. The defendant argued that the result of the breath test was inadmissible because he had either attempted to communicate his desire to take a blood test, or that he had misunderstood his right to choose to take a blood test. The Court rejected the defendant's argument, finding that the evidence showed that he understood his right to take a blood test and had consciously decided not to take one. However, the police procedure sheet used in the proceedings contained an error in wording that meant that it did not reflect the intention of Parliament in passing s 70A of the Land Transport Act. Because the procedure sheet's warning to the defendant of the consequences of not choosing a blood test was misleading, the Court dismissed the charge. Judgment Date: 23 July 2020.