Defences – Drink Driving

Drink Driving DefencesContact lawyer Alistair Haskett on 0800 DRINK DRIVE (0800 374653)

Drink driving defences:

What defences are there to drink driving?

You will be found not guilty if police merely prove you drove a car while over the limit.

There are many procedural, fairness and rights-based issues that police must prove.  In the words of the Court of Appeal, “the procedure is complex and imposes considerable burdens upon enforcement officers”.

Defences frequently arise from police errors in the process at the roadside, booze bus, police station or hospital.  Defences can be based on what is said or not said, on what is done or not done, and when, how or why those things happen.  Defences can equally be based on the not infrequent failure of police to make appropriate records or to advance necessary evidence in court.

You don’t have to prove or say anything.  It’s the police case.  They have to prove it to a high standard of proof.  You have the right to remain silent, to not be compelled as a witness, to be presumed innocence and to put the prosecution to its burden of proof.

It is those principles that give rise to many variables and far too many drink driving defences to list.  More than 100 successful drink driving defences are contained in our results page alone!

Here’s the caveat.  Avoid relying on listed results or the pigeon hole approach that others use.  It’s not that simple.  The complexity of the procedures for police underscores the minefield that an expert lawyer must navigate.  Defences can be very case specific – we use an in-house database of over 15,000 decided cases!


Defences can be as good as your lawyer

We have had many clients come to us assuming police did a perfect job or after another lawyer has told them there is no defence, only for us to find a defence and win the case.

It requires considerable effort, skill and experience to identify and carry out the best defence.  Cases often have subtle differences or discrete facts that need to be identified and considered in light of numerous enactments and thousands of decided court cases.

ROAD LEGAL ® is confident we can identify and present the best defence.  Alistair is a leading expert in drink drive law and is determination to get the best possible result for all clients.  Call Alistair on 0800 DRINK DRIVE LAWYER (0800 374653).


Procedural defences are not loopholes

We shouldn’t label drink driving defences as loopholes or allow biases or expediency to affect judgement.  People who do either don’t understand the law or they don’t respect fundamental rights and the rule of law.

Procedural defences are not loopholes or technical and unmeritorious defences.  Procedural defences are statutory defences provided by Parliament in the legislation.

If a procedural defence exists then the Land Transport Act says you are not guilty, even if you were over the limit. That is the law.  You have a statutory right to use a statutory defence.  It is possible to defend a drink driving charge, and you are perfectly entitled to do so.


Why are there procedural defences?

We live in a society that is subject to the rule of law, not the rule of men. To be law the testing process must set out a framework to stop, screen and detain motorists, and to then search the motorist’s body by way of requiring breath or blood samples. That framework must be certain and accessible and it must balance enforcement policies against the rights of all citizens to not be arbitrarily detained or unreasonably searched.  The integrity and public acceptance of our system of justice relies on such an approach.

The rule of law also requires police to strictly comply with the legislated framework. There can’t be a rule of law if the men enforcing it don’t have to obey it. That would amount to being ruled by men not law, much like in earlier times when rights were not taken seriously.

Many police officers don’t strictly comply with the legislated procedure. In those cases it is not for the police officer to decide that’s okay, because that again would amount to being ruled by men not law. It is the job of a judge to decide whether limited dispensation should be allowed when police break the law by not following procedures that the law says they must follow.

This is why police failure to follow the prescribed procedure when stopping and testing a motorist can be a defence. Police unfairness and breach of the Bill of Rights is a further and different way in which cases can be successfully defended. Many of the leading cases in New Zealand on civil rights are drink driving cases.


Limited dispensation should be principled

The courts are part of our system of government. If a judge is to find that a police officer’s failure to follow the law was nonetheless reasonable compliance then that decision should be based on proper principles. If it is not then again the question arises whether we are being ruled by law, and one that is just and reasonable. The system of justice would lack integrity and public support if judges simply excused police non-compliance with the law because they are police or because of biases or expediency.

This is why reasonable compliance should not be found lightly.  The courts should not condone police obtaining evidence unlawfully or unfairly and the courts must uphold and promote the rule of law.  It is not okay for police to break the law or treat people unfairly and the ends do not justify the means.

The Supreme Court has recognised this by saying that reasonable compliance provides “limited dispensation from the very specific requirements” of the prescribed procedure when detaining and testing motorists.

This is why many thousands of drink driving cases have been won by motorists over the years. Improperly obtained evidence cannot be used indiscriminately in drink drive or any criminal case. Think of how many times you see in news reports that evidence has been excluded in very serious cases involving violence or drugs because police have conducted an unlawful search or acted unfairly. Drink drive law operates in a similar way.


Drink driving defences enhance our system of justice

The ability of the courts to exclude or not use improperly obtained evidence is an important feature of a civilised and democratic society. It maintains a check on police power and protects the rights and freedoms of us all. It promotes the rule of law and separates us from some countries where there is wide abuse of power. It has been described in this way by Chief Justice Elias in the Supreme Court:

“The principle that breaches of rights should be remedied is fundamental to any effective and credible system of justice, and is a principal plank of ours. Moreover, judicial admission of evidence tainted by breach of fundamental rights and freedoms is additional stain on the effectiveness and credibility of our system of justice and inconsistent with the principles of the New Zealand Bill of Rights Act.”

This is an orthodox but critical principle of our criminal law, put in a different way by Justice McGrath in the Supreme Court:

“[A]n effective and credible system of justice must also maintain the rule of law by ensuring that police impropriety when gathering evidence is not readily condoned.”