Defences – Drink Driving

Drink Driving DefencesContact lawyer Alistair Haskett free on 0800 DRINK DRIVE (0800 374653) or 021 920031

Drink driving defences:

Complex testing procedures must be proven

Many motorists assume the police did a good job and that there won’t be a defence.  It is actually rare for a police officer to do a perfect job when stopping and testing a motorist.  This can often result in a valid and lawful defence.

Drink driving defences are not limited to the obvious ones like whether you were the driver or were on a road.  The Court of Appeal has said the law requires police to follow a complex procedure when testing motorists:

“Parliament was legislating for an integrated and coherent enforcement process.  The integrity of that process as a whole, and particularly the test results it produces, is vital to public acceptance of this method of obtaining proof of offending….The procedure is complex and imposes considerable burdens upon enforcement officers.”

Procedural defences are statutory defences provided by Parliament in the legislation. They are not loopholes or technical and unmeritorious defences. 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 and you are perfectly entitled to use it to defend drink driving charges.

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Limited dispensation if police don’t follow procedures

It is illegal for police to not strictly comply with the legislated procedure.  Failure to strictly comply with some procedures is an outright defence for the motorist.  Failure to strictly comply with other procedures is still unlawful and will also be an outright defence unless police prove reasonable compliance.

Reasonable compliance should not be found lightly.   We should not readily use evidence against a motorist when police have collected it unlawfully or unfairly.  Indiscriminate use of improperly obtained evidence would send a message that it is okay for police to break the law or treat people unfairly and that the ends justifies the means when prosecuting citizens.  Plainly the courts should not send that message.

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

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.

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Police must follow the law also

The integrity of our justice system relies on such an approach.  The rule of law says police must strictly comply with the prescribed procedure.  Many don’t.  In those cases it is not for the police officer to decide whether there has been reasonable compliance.  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 very different way in which cases can be successfully defended.  Many of the leading cases in New Zealand on civil rights are drink driving cases.

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Exclusion of evidence is a fundamental part of our justice system

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 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.” 

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What defences are there to drink driving?

The short answer is lots.

There are many procedural, fairness and rights-based defences in drink driving cases, which relate to how the police handled the process when you were stopped and tested.  Defences may relate to how, when and where you were stopped.  Or, they may be based on what happened on a booze bus, at a police station or in a hospital.

How can you tell if you have a valid defence?  You probably can’t, but we can.  ROAD LEGAL ® is confident we will identify the best possible defence.  We have that confidence because of our expertise in this area of law and our determination to get the best results.

Our results page contains over 100 successful results and will give you a feel for some, but by no means all, possible defences.  We don’t list many defences on our website because a number of lawyers are in a habit of making a poor effort of copying our work product.  In an unsatisfactory way, that is perhaps the ultimate compliment :-(

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Defences can be as good as your lawyer

Be careful of people who want to tell you what the defences are without taking proper instructions, getting the file from police and spending time talking to you. Not assessing that information is a bit like a lawyer advising you on a contract when they haven’t read it!

At Road Legal we have had many clients come to us after another lawyer has told them there is no defence, only for us to find a defence and win the case.  While we often run defences that other lawyers miss, the reality is that our experience also allows us to run the same defence in a far more effective way than most other lawyers.  Your defence is often as good as your lawyer, so you should invest in the best.

Call Alistair on 0800 DRINK DRIVE LAWYER (0800 374653) for a free initial chat and some general information about your situation and options.  If you subsequently instruct us we will provided you with advice on the prospects of successfully defending your case for an initial fee.  Additional charges only apply if you then go on to defend the case or take a different pathway requiring additional work.  We charge clear and fair fees in stages, rather than an all up lump sum whether or not you go through with defending the case.  That way you get top advice on your options before committing full fees on a defence.

If you decide to defend the case we will work out the best strategy.  We will vigourously test the prosecution case and advance the strongest defence.  It is our expertise that leads to this sort of comment from one judge: “after listening to the cross-examination I was left with a poor impression of the officer’s evidence…there was a lack of precision in the detail and it had to be dragged out of the officer as it were under cross-examination”.  You are presumed innocent, and we like to keep it that way.

See our results page for more than 100 examples of successful defences.  For more information about possible consequences of a conviction see our pages on offences and penalties.

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