Excess Breath / Blood Alcohol
Discharge Without Conviction
Special Reasons for No Disqualification
Section 94 Applications – Community Work in Lieu of Disqualification

Excess Breath / Blood Alcohol

1. Defended an under 20 excess breath alcohol charge in Papakura Court on basis that Police did not prove beyond reasonable doubt that the defendant was under 20. Client had blown exactly 400, thus if he had been over 20 he would not have been over the legal limit (the legal limit for someone under 20 is 150).


2. Client acquitted in Papakura District Court on basis that Police had not performed a breath screening test and thus had no authority to ask client to accompany to police station for an evidential breath test.


3. Defended client in Pukekohe District Court on basis that the information outlining the charge was filed outside the prescribed 7 day period.


4. Successful appeal in the Auckland High Court on the basis that Police did not advise client immediately of the evidential breath test result.


5. Charge dismissed in the Manukau District Court when police failed to exhibit the certificate of compliance for the evidential breath test machine.


6. Charge dismissed in the Pukekohe District Court when the Judge found that the officer in charge had made a collection of errors and had materially altered documents after they had been disclosed to Counsel;


7. Charge dismissed in the Papakura District Court when the Prosecution failed to prove that the officer in charge was either dressed in Police uniform or in possession of a warrant when he pulled my client over and administered test;


8. Client had charge dismissed in the Manukau District Court after the Police failed to prove that my client had been advised that blood was to be taken by a registered medical practitioner.


9. Police officers partner successfully defended in Papakura when Police failed to produce a valid section 75 certificate indicating that the machine had been calibrated prior to the evidential breath test;


10. Successfully defended excess breath alcohol charge in Pukekohe when Police tendered a section 75 certificate that had expired which was fatal;


11. Client defended in the Papakura District Court on a charge of excess breath alcohol. Defendant had flipped his car and ended up in a ditch. Police did not perform a breath screening test prior to the request to accompany thereby there was no authority for them to request an evidential breath test. Fined $150 on careless driving charge, EBA dismissed.


12. Charge withdrawn by Police on day of hearing in Papakura District Court when it was pointed out that the Police had no authority to request client to accompany – no breath screening test undertaken.


13. Charge dismissed in the Napier District Court on basis that there was no proximity between the driving and the breath screening test. Judge also found Police had exceeded any authority they may have held in terms of an implied licence when they entered client’s hotel room.


14. Charge dismissed in the Rotorua District Court on the basis that the Officer had threaten arresting my client without notifying her of her entitlement to bail. It was held that the incongruity of her capitulation after the threat of arrest was explicable only by the duress that that threat had placed on her.


15. 15. Successfully represented a client such that s/he was never charged. Client and partner had an accident where their car flipped. The male was thrown out of the car, the women went thru the windscreen. Blood samples were taken from both and both were in well excess of the legal limit. I advised them both to exercise their fundamental right to remain silent and not to make a statement. As a result the police were unable to ascertain who the actual driver was and thus were not able to charge either.

Discharge Without Conviction

1. Granted a discharge without conviction for a client in the Manukau Court who was wishing to the join the NZ Police.


2. Discharge without conviction granted for client in the Papakura District Court who had always wished to join the NZ Police;


3. Discharge without conviction granted in the Pukekohe District Court for client who was under 20 and expressed a desire to join the NZ Police;


4. Discharge without conviction for client on basis that the distance travelled, and partial defence of ‘neccessity’ was sufficient to satisfy the prescribed test that the consequences of the conviction would outway the gravity of the offending;

Special Reasons for No Disqualification

1. Special reasons granted in the Papakura District Court for client on basis that her drinks had been spiked. Although she admitted consuming alcohol she did not intend to consume such a quantity as to exceed the legal limit. No disqualification ordered and Court costs only.


2. Special reasons granted for client who had passed a passive breath test but subsequently caught at a further compulsory checkpoint. No disqualification.


3. No disqualification was ordered where it was proved that client was menstruating at the time. This causes a persons body temperature to rise, which can unduly influence the results of the evidential breath test.


4. In an excess breath alcohol charge in the Pukekohe District Court, the Police did not adduce evidence that my client had consumed alcohol prior to undertaking a breath screening test at his home. My client was caught by the presumption in law which states as long as there is a reasonable proximity between the time of driving and the test, a person’s level when tested is deemed to be that as when they had been driving. However, as the police could not prove he had been drinking prior to arriving home, no disqualification was ordered on the basis that special reasons were found.


5. Special Reasons not to disqualify were found in the North Shore District Court when evidence was given that her family members had been pouring excessively strong drinks prior to her driving home.


6. No disqualification was ordered for a client in the Pukekohe District Court where it was proven that he had only driven a very short distance in combination with his clean driving record and necessity to maintain a licence.


7. Special reasons not to disqualify granted in the Papakura District Court on a charge of excess blood alcohol where the ESR certificate indicated that the second sample of blood was not able to be analysed.


8. Special reasons granted in the Manukau District Court. Counsel summonsed an expert chemical analysis who gave expert opinion evidence that the alcohol level in the RTD’s client was drinking exceeded that specified on the label.


9. Special reasons granted in the Manukau District Court on basis that client only drove out of necessity to reach his rare dog which was suffering and in difficulty having puppies. No disqualification.

Section 94 Applications – Community Work in Lieu of Disqualification

1. Client employed as a truck driver. 4 previous drink drive convictions. Extremely high level (over 1000). No disqualification ordered in the Pukekohe District Court on the basis that client had successfully complete several alcohol programmes and had obstained from alcohol for 5 months. 80 hours community work ordered in lieu of disqualification.


2. No disqualification for truck driver who had an extremely high blood alcohol reading in the Papakura District Court. Client had previously attended an assessment with Care NZ and competed the CAD’s course.


3. No disqualification for client who was convicted of driving with excess breath alcohol and careless driving after riding his motorcycle into a van. Small amount of community work hours ordered in lieu of disqualification.


4. No disqualification where client had 17 previous convictions for driving whilst disqualified. Defendant had been indefinently disqualified for many years .Considerable efforts were made by Counsel and the Courts to ensure that the Client not only avoided disqualification, but also obtained his drivers licence – first time he’d held a licence in over 12 years.