Blair v Police

[2018] NZCA 613

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA210/2018
 [2018] NZCA 613

BETWEEN	PAUL ANTHONY BLAIR Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Winkelmann, Duffy and Peters JJ
Counsel:	Applicant in person K Peirse-O’Byrne for Respondent
Judgment: (On the papers)	19 December 2018 at 12 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

1. The applicant, Mr Blair, seeks leave to bring a second appeal.[1]  The proposed appeal is against a decision of Woolford J, dismissing Mr Blair’s appeal against conviction for driving with excess breath alcohol.[2] 

   [1]Criminal Procedure Act 2011, s 237.

   [2]Blair v Police [2018] NZHC 664.

2. We may grant leave if satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] 

Background

[3]Criminal Procedure Act, s 237.

1. Mr Blair was convicted in the District Court of driving with excess breath alcohol following an evidential breath test (EBT)[4] result of 761 micrograms of alcohol per litre of breath, well in excess of the permitted maximum of 400 micrograms.[5]  Mr Blair defended the charges before Judge Treston, arguing that the high result was due to the application of an alcohol-based mouth gel he had applied liberally to his mouth plate some 45 minutes earlier.[6]  Mr Blair contended that the EBT device failed to distinguish between the alcohol in his mouth, allegedly from the “Medijel”, and that in the blood stream, as reflected in “alveolar breath”.

   [4]As defined in s 2 of the Land Transport Act 1998.

   [5]Police v Blair [2017] NZDC 28608. 

   [6]At [8].

2. Alveolar breath is deep breath from the lungs.  The word “breath” is not defined in the Land Transport Act 1998 (the Act).

3. Mr Blair did not give evidence as to the precise quantity of Medijel he applied to his mouth plate, nor did he provide any expert evidence as to whether that quantity would have been sufficient to account for the excess above 400 micrograms at the time he underwent the EBT.  Accordingly, Judge Treston was satisfied the elements of the offence were made out and entered conviction against Mr Blair.[7]  His appeal before the High Court was also dismissed.[8]

Application for leave for second appeal

[7]At [24].

[8]Blair v Police, above n 2, at [26].

1. Mr Blair now seeks leave to pursue the following points on second appeal:

   A:       … whether or not the High Court erred in law in:

   (i) having no … or insufficient regard to the applicant’s submission … that: “… there was actually no proper evidential breath test carried out, as the “alveolar breath” was not being tested … and that defence is, clearly not ousted by section 64(4)(a) of [the Act] and;

   (ii) having no … or insufficient regard to the statutory meaning of “breath” in subsections 64(4)(a) and 64(4)(b) of [the Act] … and the applicant’s submissions that the meaning of “breath” in those subsections has to mean “alveolar breath” as the purposive approach to statutory interpretation requires that a statute be interpreted in the ordinary meaning of the words but also in the light of its purpose.

Analysis

1. Mr Blair’s appeal does not involve a matter of general or public importance, nor is there a risk that a miscarriage of justice has occurred, for these reasons.

2. A defendant commits the offence under s 56(1) if he or she drives:

   (a)a motor vehicle;

   (b)on a road;

   (c)while the proportion of alcohol in his or her breath, as ascertained by an EBT subsequently undergone by the defendant under s 69 of the Act, exceeds 400 micrograms of alcohol per litre of breath. 

3. We note that s 56(1) is not concerned with the proportion of alcohol in a defendant’s breath per se, but with the level ascertained by the EBT.  The result of such an EBT will be determinative, subject to the defendant:

   (a)proving that result, or at least the excess above 400 micrograms, is attributable to some benign or involuntarily consumed product;[9] or

   (b)electing a blood test.[10]

   [9]Two examples of cases in which a defendant has done so are Police v Leeder [2005] DCR 103, in which the result of the EBT reflected paint thinner with which the defendant had been working, and Pope v Police [2012] NZHC 1, in which it was a real possibility that the EBT result reflected the defendant’s required use of an asthma inhaler immediately prior to being tested.

   [10]Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].

4. There is no dispute as to the first two elements of the offence.  As to the third, there is no dispute that Mr Blair underwent an EBT, pursuant to the process set out in s 69 of the Act.  It is not a requirement of the Act that the EBT test alveolar breath.  Mr Blair did not elect to have a blood test to confirm the accuracy of the EBT, something he was entitled to do.  Given that, there is no merit in Mr Blair’s first point.  There is no basis for an argument that the word “breath” as used in the Act means alveolar breath.   

5. Finally, neither of these arguments, even if they had merit, could assist Mr Blair.  This is because the evidence does not support his proposition that the reading was based on anything other than the proportion of alcohol in his alveolar breath. 

Result

1. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent