Police v Lamb [2020] NZDC 2471 (18 February 2020)

Last Updated: 30 December 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT PALMERSTON NORTH I TE KŌTI-Ā-ROHE KI TE PAPAIOEA

CRI-2019-054-001813 [2020] NZDC 2471

NEW ZEALAND POLICE Prosecutor

v

DEANNA LAMB Defendant

Hearing:	21 January 2020
Appearances:	Sergeant K Anstis for the Prosecutor Mr M Andrews for the Defendant
Judgment:	18 February 2020

DECISION OF JUDGE L C ROWE

[Following Judge-alone trial]

[1] Deanna Lamb is charged that on 20 June 2019 at Feilding she drove a motor vehicle on Sandon Road with an excess breath alcohol concentration of 813 micrograms of alcohol per litre of breath.

[2] Ms Lamb agrees she was driving a motor vehicle and that she underwent correctly administered procedures to return the alcohol reading. She denies however, that the alcohol reading represents alcohol she consumed before driving.

[3] On the evening of 19 June 2019, Ms Lamb went with her partner to an address in Feilding. Her partner and others at the address consumed “Cody’s” (a bourbon and

NEW ZEALAND POLICE v DEANNA LAMB [2020] NZDC 2471 [18 February 2020]

cola premixed drink). Ms Lamb said she did not have anything to drink because she wanted to purchase more alcohol and wanted to remain sober to do so.

[4] Later in the evening, she, her partner and a friend, [witness name deleted], went in her car to Palmerston North to buy homebrew bourbon from acquaintances. [The witness] was driving. After purchasing the homebrew bourbon, [the witness] drove them to an area near Sanson, where a close friend or acquaintance of Ms Lamb had died in a motor vehicle accident. After paying their respects, [the witness] then drove them back towards Feilding.

[5] [The witness] lost control of the car on Sandon Road and the car skidded off the road into a ditch after colliding with a 70 kilometre per hour sign.

[6] Ms Lamb, her partner and [the witness] managed to push the car back onto the road and Ms Lamb took over the driving. She lost control of the car a short distance later, where the car once again left the road and rolled into a ditch.

[7] Ms Lamb said she, her partner and [the witness] gathered some of their belongings and the one litre bottle of homebrew bourbon and began walking along the road in a rural area towards Feilding.

[8] Ms Lamb said that she had not consumed alcohol up to this point but began drinking the homebrew bourbon because she was in shock and cold. None of the group could use their cellphones as their batteries had either lost charge or, in Ms Lamb’s case, her cellphone had been submerged in water in the ditch.

[9] Ms Lamb estimates she and her two companions walked for about an hour and a half before eventually seeking assistance at a farmhouse.

[10] An ambulance and then police attended, after which Ms Lamb was taken to the Palmerston North Police Station where she gave the evidential breath test reading that led to this charge.

[11] Given the delay between driving and attendance of the police, Ms Lamb submits through her counsel that the Court cannot safely rely on the breath test result.

Authorities

[12] The starting point is s 77(1) of the Land Transport Act 1998, which provides:

77 Presumptions relating to alcohol-testing

(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant’s breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant’s breath indicated by the test.

[13] This section creates a “legal fiction” where the alcohol level at the time a person is tested is conclusively presumed to be their alcohol level at the time of driving to prevent a drinking driver from escaping conviction by drinking after driving or an accident before being tested.1

[14] Whether the presumption can be overcome depends, to some extent, on the reason for which a person is required to undergo a breath screening test in terms of s 68(1) of the Act. Section 68(1) provides:

68 Who must undergo breath screening test

(1) An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

• (a) a driver of, or a person attempting to drive, a motor vehicle on a road:
  
• (b) a person whom the officer has good cause to suspect has

recently committed an offence against this Act that involves the driving of a motor vehicle:

(c) if an accident has occurred involving a motor vehicle,—

• (i) the driver of the vehicle at the time of the accident; or
  
• (ii) if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.
  

1 Ministry of Transport v Martis [1992] NZCA 307; [1993] 1 NZLR 307.

[15] A delay in testing drivers to whom s 68(1)(a) or (b) applies may result in the evidential test being set aside and the s 77(1) presumption overcome.

[16] The leading decision is Wynn-Williams v Police where the Court of Appeal held that:2

... there must be a proximate connection to the actual driving on a road for the person to be a driver. This means that there must be no such intervention of time, circumstance and conduct that the person must be seen as separated from the reading and the act of driving.3

[17] In that case, the enforcement officer had not seen the appellant driving but was found at a carpark drinking alcohol. The appellant admitted driving some 20 to 35 minutes earlier and was then required to undergo a breath screening test under s 68(1)(a). The Court of Appeal held that the appellant was separated in time, conduct and circumstance from his driving up to 35 minutes previously that he was not a driver for the purposes of s 68(1)(a).

[18] The Court of Appeal in Wynn-Williams considered the policy under s 68(1)(a) was to allow random breath testing of motorists on the roads. It could not have been the purpose of the legislation to allow breath screening tests to be required of a person at home, merely because they had been the driver of a car some hours previously.

[19] The position is different however, when the breath test is required following an accident under s 68(1)(c). French J, in Braid v Monk noted that s 68(1)(c)(i) does not contain an absolute temporal limitation or time bar, unlike s 68(1)(a) or (b).4 There were good policy reasons relating to road safety for adopting a different approach where there had been an accident.

[20] Her Honour held that the issue was not simply whether the time since driving was too long but rather:

... whether in all the circumstances there had been an abuse of process or whether the power had been exercised for a purpose other than that for which

2 Wynn-Williams v Police CA 400/03, 15 June 2004.

3 At [28].

4 Braid v Monk HC Dunedin, CRI-2010-412-12, 17 November 2010.

it was given because there could not have been any or sufficient probative connection between the testing and the charge.5

[21] The fact of a nine-hour delay in that case was relevant but not necessarily determinative, particularly where the defendant told police he had not consumed alcohol since the accident. As the police otherwise processed the defendant without delay, there was no abuse of process and sufficient proximity between the blood test and driving to establish the required probative connection.

The issues

[22] The issues arising from Braid v Monk therefore are:

• (a) Did the police abuse the process by requiring Ms Lamb to undergo a breath screening test?
  
• (b) Is there a sufficient probative connection between the testing and the charge?
  

Abuse of process

[23] [Constable A] gave evidence that he was first notified by police communications that there had been a motor vehicle accident in Sandon Road, Feilding at 5.00 am on 20 June. He was on patrol in Palmerston North at the time.

[24] [Constable A] picked up a fellow police officer at the Palmerston North Police Station and then drove to Sandon Road, on the outskirts of Feilding, a journey of approximately 30 minutes.

[25] [Constable A] first saw Ms Lamb, [the witness] and Ms Lamb’s partner on the side of Sandon Road where they were being attended to by ambulance staff. There was a brief delay while ambulance staff checked the occupants of Ms Lamb’s car.

[26] [Constable A] established that Ms Lamb’s vehicle had been involved in an accident some distance up the road and that Ms Lamb had been driving at the time.

5 At [33].

Ms Lamb was clearly intoxicated and behaving in an animated fashion. Ms Lamb also removed her upper clothing, which [Constable A] took to be intoxicated exhibitionist behaviour, but which was more likely Ms Lamb removing wet clothing (it had been raining) to put dry clothing on, albeit with some immodesty.

[27] Given Ms Lamb’s clear intoxication and acknowledgement she had been driving at the time of the accident, [Constable A] required Ms Lamb to undergo a breath screening test at 5.55 am. Ms Lamb returned a screening result indicating she had a breath alcohol level of more than 400 micrograms. The constable then immediately required Ms Lamb to return to the Palmerston North Police Station for an evidential breath test.

[28] [Constable A] asked Ms Lamb if she had been drinking alcohol and she replied, according to him, that she had consumed two small bottles of rum and coke. He saw that Ms Lamb had a small bottle of coke with her and he sniffed it but could not detect alcohol in the bottle.

[29] Ms Lamb disagrees that she told [Constable A] she had consumed two rum and cokes because she does not drink rum, only bourbon.

[30] While [Constable A] may have been mistaken about the type of alcohol Ms Lamb said she had been drinking, I accept his evidence that Ms Lamb said she had been drinking previously, although, as the constable acknowledged, Ms Lamb did not say whether she had consumed alcohol before or after driving.

[31] Ms Lamb’s evidence of what occurred at the time the police spoke to her in Sandon Road is unreliable for the reasons that:

• (a) She was clearly intoxicated.
  
• (b) She denied being in possession of the coke bottle, even though the constable asked her about it and sniffed it to see whether it contained alcohol.

• (c) Ms Lamb said she had been drinking from the bottle of homebrew as the police arrived, something [Constable A] did not see, and would have noticed in the circumstances.
  

[32] In the circumstances presented to the police where Ms Lamb and the other occupants of her car were being assessed by ambulance officers, the police needed to establish what had occurred, and who was driving, and where there had been some bizarre behaviour, a delay of 20 to 25 minutes in asking Ms Lamb to undergo a breath test was not an unreasonable delay and not an abuse of process by the police.

Probative connection

[33] It is difficult to be sure of the length of time from Ms Lamb’s driving to when the police arrived in Sandon Road. On Ms Lamb’s evidence, and that of [the witness], the period could have been at least one and a half hours and possibly longer. Ms Lamb and [the witness] could not give reliable estimates of time, as neither of them were paying attention to the time and their accounts of their movements that night leave significant gaps from when they left Feilding to when the police and ambulance arrived in Sandon Road. Having said that, it was not for Ms Lamb to prove the length of time between when she drove and when she was breath tested. The prosecution had the burden of proof.

[34] There are however, strong probative connections between Ms Lamb’s driving/accident and the breath test result in terms of time, place and circumstances, including:

• (a) Ms Lamb was found on the same road as the accident by police.
  
• (b) Ms Lamb was at least within reasonable walking distance of her car.
  
• (c) Ms Lamb acknowledged being the driver of her car at the time it was involved in an accident.
  
• (d) When asked if Ms Lamb had been drinking, she acknowledged she had, without indicating the alcohol had been consumed after the accident.

• (e) The accident had occurred the same morning as the request for a breath screening test.
  
  • (f) Ms Lamb was clearly intoxicated when spoken to by police.
    

[35] Ms Lamb’s evidence does not undermine this logical or probative connection. Ms Lamb’s evidence was inconsistent and generally unreliable. I note the following:

• (a) Ms Lamb said she had not consumed alcohol because she wished to drive to get more alcohol. [The witness] however, said he drove up to the time of his accident because Ms Lamb was on a restricted license and not able to drive after 10.00 pm. Ms Lamb’s rationale for not drinking prior to driving was therefore no rationale at all. She was unable to drive, and chose not to drive, because of her license conditions.
  
• (b) Ms Lamb told the police in Sandon Road that she lost control of her car because her partner and [the witness] were arguing about the preceding accident and this distracted her. She also said she had never flipped a car before and felt stupid for doing so. In evidence however, she claimed that she lost control of the car due to damage from the preceding accident, which is something she did not mention to the police at the time.
  
• (c) Ms Lamb said she told the police that she had been consuming homebrew bourbon after the accident and before they arrived. [Constable A] could only recall Ms Lamb telling him about having consumed two bottles of rum and coke when he asked her about this on the side of the road. When [Constable A] asked Ms Lamb at the police station what she had been drinking, she refused to answer. It is therefore highly unlikely that Ms Lamb told the police she had been drinking homebrew bourbon as this was a specific matter that [Constable A] asked her about, both on the side of the road and at the police station.

[36] I cannot exclude the possibility that Ms Lamb drank some alcohol between her motor vehicle accident and the police arrival at Sandon Road. There is however, sufficient probative connection between the testing and the charge, such that the s 77(1) conclusive presumption applies.

Outcome

[37] Given s 77(1) of the Land Transport Act, Ms Lamb’s breath alcohol level of 813 micrograms of alcohol per litre of breath is conclusively presumed to be the level of alcohol at the time she was driving on Sandon Road, Feilding. The charge is accordingly proved beyond reasonable doubt.

Judge L C Rowe

District Court Judge

Date of authentication: 18/02/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.