R v Huang [2020] NZDC 10304

Published 16 December 2021

Oral judgment — excess breath alcohol — evidential breath test — admissibility of evidence — dismissal of charge — Land Transport Act 1998, ss 64(2) & 77(1)-(3A) — New Zealand Bill of Rights Act 1990 — New Zealand Police v Briggs [2020] NZDC 11392 — Police v Gagas [2015] NZDC 25831 — Police v Livingston [2001] 1 NZLR 167 (CA). This was a decision on the admissibility of an evidential breath test. The defendant had been charged with driving with an excess breath alcohol reading of over 400 micrograms. Counsel for the defendant submitted that the evidence from the evidential breath test was inadmissible as the provisions of the Land Transport Act had not been complied with. In particular, s 77(3) was not complied with as it required, in accordance with s 77(3A), the police to advise a person prior to taking the evidential breath test that a positive test itself could be "conclusive evidence to lead to a conviction". The wording on the police checklist, which was used in relation to the defendant, is that a positive test could be "conclusive evidence in a prosecution". This issue, acknowledged by the Judge, was being considered in greater detail in an upcoming reserved judgment. It is an issue that has repeatedly come up in the District Court in drink-driving prosecutions. The Judge held that s 77(3) and (3A) had not been complied with here, and declined to invoke the defence under s 64(2) of "reasonable compliance". The charge against the defendant was dismissed. Judgment date: 5 June 2020.