Frequently Asked Questions
Are drink drive charges not cut and dried in favour of the police?
Are drink drive charges criminal charges?
Won't it be worse for me if I defend a first or second charge?
What to do if required without delay to undergo an evidential breath test?
How much will it cost me to defend a breath alcohol charge in one of the District Courts in the Auckland Region?
$500 is the initial consultation fee at my office.
The initial consultation includes a meeting, usually at my office, with the defendant (that is the person charged), a partner or supporter and a witness if any. Out of town defendants may have a recorded telephone consultation. Paperwork in possession of the defendant is important, is referred to and usually includes a traffic offence notice, an on the spot summons, an evidential breath test result card and any other paperwork from the police. An audio recording of the facts from the defendant's point of view is taken, transcribed and e-mailed or posted to the defendant. Official information as requested in writing from the police, ultimately received (or not) and, if received, analysed.
$1000 in addition to the initial consultation fee is required for an appearance by counsel at the District Court status hearing.
Some courts do not have status hearings in breath alcohol cases. A status hearing is an intermediate stage between the entry of the initial plea and the ultimate defended hearing. It is a plea bargaining session with a prosecutor in attendance and a judge on the bench. Witnesses do not usually attend a status hearing. It is an informal discussion between the judge, the prosecution and the defendant about the case. After considering the case against you, you can decide whether to continue with your not guilty plea or plead guilty.
Given a reasonably favourable set of facts and a responsible prosecuting sergeant or counsel it is sometimes possible to negotiate a lesser charge or a penalty that does not involve disqualification or even a conviction.
Prior to the status hearing the bulk of the official information will have been received and analysed and the defendant advised of how to deal with the drink drive charge.
If a client is determined to enter a guilty plea to the charge, the early entry of a guilty plea entitles you to a discount on the sentence. The fine can be cut by 30% but unless there are special reasons relating to the offence, the minimum disqualification period must apply even with an early guilty plea.
If it is not possible to agree on the outcome of the charge or charges at the status hearing a motorist is entitled without criticism to deny the charge and put the prosecuting authority to the proof. At the defended hearing all of the essential elements relating to a charge must be proved beyond reasonable doubt. Essential elements include times, places, circumstances, identity, the authority of the arresting or detaining constable and that certain statutory procedures were undertaken within time and date limitations laid down by parliament.
Procedural matters relating to the manner in which the breath screening test and evidential breath test were conducted need not be proved to any standard as from 6 June 2008 at 3pm. If there is evidence that an approved device was used and the breath tests were administered and a result obtained that is an end to the matter as far as the NZ Court of Appeal and parliament is concerned: The Queen v Alisdair Bruce Aylwin CA227/07 [2008] NZCA 154.
It is important in these circumstances that motorists request a blood test in all cases. Why would anyone bother taking the evidential breath test on the booze bus or at the police station when parliament condemns the motorist to accepting the “result” no matter how dodgy the device or the manner in which it was obtained? Even good faith is presumed! Who voted for these people?
$3,500.00 is a minimum fee, in addition to the costs referred to above, for a full-scale defended hearing. If there are a number of charges and/or witnesses, costs will be in excess of $3500.00.
A defended hearing is sometimes known as a summary trial or a fixture.
Prior to the defended hearing the client will be fully advised as to the procedure adopted in court and will have a printed copy of his or her own evidence, known as a brief or proof of evidence. In the majority of defended drink drive hearings it is not necessary for the client to give evidence. However if it is necessary to give evidence you will be fully prepared.
All official information will have been received and analysed in detail and any available defences will be thoroughly prepared and ready to go.
Adjournments will require an additional fee of $500.00 and interlocutory applications will be undertaken on an agreed fee basis.
Legal aid may be applied for and a legal aid lawyer appointed to act for you.
Top
Are drink drive charges not cut and dried in favour of the police?
Roughly 90% of people charged with drinking and driving are convicted. They are convicted because most of them plead guilty at one stage or another.
It is understood that the police claim to obtain convictions in 50% or 60% of cases that are defended and go to summary trial.
No lawyer can guarantee the outcome of a defended hearing but with a properly prepared defence and given an under-trained policeman or policewoman as a witness and sometimes a less than skilled prosecutor your chances are pretty good of a successful outcome.
There are well trained and highly experienced police officers out there. There are also some highly skilled prosecutors. But not all police personnel are well trained and skilled; and they will tell you that themselves. There was a front-page report to that effect in the New Zealand Herald on 24 April 2008.
Where are the defences?
Parliament has provided the police with shortcut procedures in the case of excess breath alcohol charges enabling the police to serve an "on the spot summons" at the conclusion of the breath alcohol procedures. However the police do not always act in accordance with the strict timetable fixed by parliament for the swearing of the originating information at the District Court.
The police do have ways of getting around dilatory bureaucratic behaviour in circumstances where they are responsible for the delay but, first, they have to recognize the problem and, second, they have to take serious steps to correct it; at least one action involving a time honoured legal fiction.
Competent counsel will immediately recognize police problems from the paperwork and deal with them at any hearing to the client's advantage. Inexperienced counsel may not understand the problems and may not be able to proffer appropriate advice.
In the course of the breath alcohol procedures the police are obliged by statute to advise the motorist of certain matters without delay. The police have standardised forms upon which they note the timing of various procedures. Where there is an unexplained delay at a critical part of the procedure a motorist is absolutely entitled to an acquittal. Parliament says so. The higher courts have confirmed that to be the case and the District Court is bound by parliament and the superior court precedents. Timing errors happen a lot; more often than they should.
Are drink drive charges criminal charges?
A Supreme Court judge, Justice Tipping, (in Meder v Police (H/Ct Dunedin AP 104/91 8/10/91)) has been known to refer to a drink drive charge as a quasi criminal charge and they are heard in the criminal jurisdiction of the District Court.
All of the essential elements to a drink drive charge like, time, place, circumstances, identity, authority and the like must be proved to the criminal standard, that is, beyond all reasonable doubt.
Breath and blood alcohol procedural matters, however, need to be proved only to the civil standard, that is, on the balance of probabilities.
Judge L H Moore analysed the meaning of "crime" in a case heard on 13 March 2006 at the District Court Auckland, (Patterson) and referred to the definition section of the Crimes Act 1961 where a crime means: "...an offence for which the offender may be proceeded against by indictment".
Until you have two previous drink drive convictions you cannot be proceeded against by indictment; to a jury trial. Therefore a first or second drink drive conviction is an offence and not a crime. Unfortunately an offence means much the same as a crime but sounds better.
So you may take your pick as to whether or not drink drive charges are criminal charges or merely traffic offences.
Won't it be worse for me if I defend a first or second charge?
New Zealand is a free and democratic society and everybody in this country is entitled to put any prosecuting authority to the proof of a charge without criticism. The system, however, provides for a 30% discount for the entry of an early guilty plea. Unfortunately the discount relates only to the fine unless there are a special reasons relating to the offence as well.
If you defend the charge you cannot be criticised for it and it would be completely out of order for any policeman or judge to do so.
What to do if required without delay to undergo an evidential breath test?
First, you may decline to undergo the evidential breath test provided you permit a blood specimen to be taken. The police usually won't volunteer this detail because they emphasise their "power" to require you to undergo an evidential breath test without delay.
It is not an offence to refuse to undergo an evidential breath test but some under-trained police officers don't know this and your refusal can confuse them and cause them to make serious errors in their procedures.
Make a written note immediately of any undue pressure or threat applied to require you to undergo a breath test or for that matter any part of the procedure. If the police person won’t provide pen and paper, write it on one of the forms the detaining officer may ask you to sign. You will observe that the officer will be doing a lot of writing. That is so he can refer to notes taken at the time when giving evidence against you. You ought to have notes taken at the time too.
Under no circumstances should you refuse to permit a blood specimen to be taken when that is required of you (unless you have a phobia about needles and/or the taking of blood but that is another whole story).
Second, if you want to chance your luck on one of the evidential breath testing devices: - Hyperventilate!
Allan Ross Gainsford, a scientist employed by the ESR, swore an affidavit on 24 January 1996 relating to the Intoxilyzer 5000 evidential breath test device. In part he testifies as follows: Different breathing techniques can give rise to different breath alcohol readings. This has been reported as altering true readings by as much as 20%. This difference is still too small for the results to be seriously misleading. However, I have conducted tests where gross hyperventilation has lowered a true reading by over 50%.
You must ask yourself why you would submit yourself to one of their evidential breath testing devices under any circumstances.
If the resultant reading is over 650 µg of alcohol per litre of breath the police will immediately suspend your driver's license for 28 days in terms of s 95 of the Land Transport Act 1998. Parliament empowered them to do this. Someone must have voted for them!
Also apparently it is parliament's intention that it does not matter how the police obtain an evidential breath test result provided it is conducted in good faith and with an approved device.
The Court of Appeal of New Zealand recently ruled that procedural and substantive errors in the assembly and conduct of an evidential breath test do not now afford a defence, see: The Queen v Alisdair Bruce Aylwin (CA227/07, 6 June 2008): ... it is not fatal if the prosecution fails to give evidence of the manner in which the breath screening and evidential breath tests were administered. It suffices to give evidence that they were administered and a result obtained.
Whatever happened to the old criminal standard of proving all elements of a police charge beyond reasonable doubt? And I suggest again: why, when the police have such an easy ride, would you submit your breath to an evidential breath testing device?
You're pretty much dog tucker if you do not request a blood test and they manage to obtain an evidential breath test result over 500 µg of alcohol per litre of breath, however in good faith they get it on an approved device!
Common sense dictates that you ought to request a blood test within the 10 minute timeframe about which the detaining officer should advise you after obtaining the evidential breath test result.