Defences

The Supreme Court of New Zealand in the decision of Aylwin v the Police
[2008] NZSC 113 stated on 19 December 2008:

“Every driver of a motor vehicle on the roads of this country should by now be
aware that driving after consuming more than a small amount of alcohol is
dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility through technical and unmeritorious defences. The Courts must give full effect to that clear Parliamentary indication.”

Steve says:
Defences may still arise but they are certainly much reduced in light of the current law.

In Gallichan v The Police, [2009] NZCA 79, the Court of Appeal stated:

“This court has on a number of occasions now explained the very limited evidence required in drink-drive cases: . . .

Indeed, in Allen, we observed that the evidence “would normally take only a few
minutes, unless there is a real dispute as to whether the accused was driving the motor vehicle or whether the vehicle was on a road”: at [10].

The Supreme Court has also emphasised the limited nature of the evidence required: Aylwin v New Zealand Police [2008] NZSC 113 at [14], confirming this court’s decision, [2008] NZCA 154”.

So you really do need an expert to have any chance of mounting a successful defence in this field!

Steve says:
Essentially the most fertile areas at present are Delay, certain Procedural and Legal Aspects, and Breach of Rights issues.
In these types of cases, your Lawyer can argue that the Police cannot prove their case due to legal inadmissibility of the Test Results, whether Breath or Blood.

In Gallichan the Court of Appeal also stated:

The admissibility of evidence can be challenged in a summary trial. . . . If the prosecution is proposing to call evidence which the defence considers inadmissible, the defence should signal that objection at the hearing, with the grounds of objection. The judge should then hear submissions on the objection and, if necessary, conduct a voir dire.

The judge should then give a ruling as to the admissibility of the evidence. If the
ground of challenge is that the evidence has been obtained improperly, say in breach of the Bill of Rights, then the judge will have to determine whether the specified rights were breached. (see *B) If they were, then the judge has to undertake the balancing exercise prescribed by s 30(2)-(4) of the Evidence Act.

*B: Your Rights: THE POLICE MUST YOU READ A FORM WHICH SAYS:

“You are advised that you have been detained for the carrying out of breath or
blood test procedures."

Steve says:
Note that the two do not necessarily have to occur. Given the limited nature of what has to be proved as regards an allegation of Driving with Excess Breath Alcohol, you would be well advised to decline to undergo the Evidential Breath Test (it is NOT a compulsory test) unless either of the two circumstances below apply .*(A). Just say “no” . The officer is then empowered to require you to provide a blood specimen. (This IS a compulsory test).Make sure you comply with any such request

You have the right to refrain from making a statement and to remain silent. 

But of course you can’t remain silent, as the officer is empowered to then require you to make choices. Don’t be confused by this. Keep your answers simple, to the point and as short as possible.

You have the right to consult and instruct a lawyer without delay and in
private.

Ask for privacy. Don’t be intimidated.

This right may be exercised without charge under the Police Detention Legal Assistance Scheme. 

In essence the Police officer must tell you that:
(a) if you are unable to contact a lawyer you know of, the police hold a list of on call lawyers for you to call on a free phone; and
(b) Those lawyers are readily available on call for prompt and direct access and
(c) They will give you free advice.

You may also exercise this right before deciding to answer any questions that may be put to you.

So do it!

Anything said by you will be recorded and may be given in evidence.

 In practice this is routinely breached as virtually anything said by you is not recorded. Make your own notes of any conversations you have with any officer/s, if not at the time then as soon afterwards as you can.

These rights will continue throughout the breath/blood alcohol procedures. 

You can call a lawyer again after the Breath Test if you need further advice.

If you wish to consult and instruct a lawyer, a telephone will be made available for that purpose as soon as practicable, and before you undergo an evidential breath test, blood test or both.

So do it!

You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.”  

So if the first lawyer you try to contact is unavailable, ask to call another one.