Blair v Police [2018] NZHC 664 (12 April 2018)

Last Updated: 30 April 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000448 [2018] NZHC 664

BETWEEN	PAUL ANTHONY BLAIR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 March 2018
Appearances:	Appellant in person M Mortimer for the Respondent
Judgment:	12 April 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 12 April 2018 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

BLAIR v POLICE [2018] NZHC 664 [12 April 2018]

Introduction

[1] Paul Anthony Blair was charged with driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath in that it was 761 micrograms of alcohol per litre of breath. Mr Blair defended himself at trial. Following the defended hearing, the charge was found proven by Judge P I Treston. Mr Blair was then convicted and fined $750 with Court costs of
$130. He was also disqualified from holding or obtaining a driver’s licence for one year and one day. He now appeals against conviction and sentence. He is again unrepresented by legal counsel.

Factual background

[2] Mr Blair is an educator and lives in Rotorua. At the time of the offence, he travelled to Auckland on Thursdays and Fridays to work as a volunteer for Auckland Action Against Poverty (AAAP). AAAP occupies ground floor premises on the corner of Galway Street and Church Street, Onehunga. On the evening of 28 April 2016 he and his son were invited to attend a farewell drinks evening for a colleague at Arthurs Bar about half a kilometre away. Mr Blair and his son were there about five hours. Mr Blair said he had four or five 350 ml bottles of beer together with some finger food and hot chips.

[3] Mr Blair and his son were to spend the night on fold-out beds at the AAAP premises. At about 9.00 pm they drove down Onehunga Mall and stopped at a Chinese takeaway and had dumplings and soya sauce. Mr Blair suffers from mouth ulcers and wears an upper partial dental plate. He says the soya sauce caused his mouth ulcers to sting so he took out his dental plate and liberally coated the plate with Medijel, a medicine for mouth ulcers, before inserting it back into his mouth. Mr Blair and his son then drove down Galway Street back to the AAAP premises at about 9.15 pm. It was then that a police officer noticed Mr Blair’s car being driven across the road to the opposite side and being parked facing the wrong direction on Galway Street. The police officer activated the normal drink driving procedures when she smelt alcohol on Mr Blair’s breath. An evidential breath test taken later, at 10.00 pm, resulted in a reading of 761 micrograms of alcohol per litre of breath, almost twice the legal limit above which a criminal offence is committed.

Grounds of appeal

[4] Notwithstanding two previous convictions for drink driving in 1993 and 1997, Mr Blair is adamant that there must have been a mistake in the operation of the evidential breath test machine because his breath alcohol reading was too high for the amount of alcohol he had drank that night. In reviewing the events of that night, he had a look at the label on the Medijel medication he took for his mouth ulcers and discovered that it contained 10 per cent alcohol. Mr Blair is now convinced that is the reason for the high reading.

[5] Mr Blair’s primary complaint about the District Court hearing is that he was unable to properly develop his defence because of various rulings made by the Judge hearing the case. He has articulated seven particular grounds of appeal, four of which relate to various aspects of the evidence sought to be led by Mr Blair from an expert in the measurement of active ingredients in pharmacologically active compounds, Dr Nigel Yee, a lecturer at the Unitec Institute of Technology. A fifth ground of appeal relates to a letter from Mr Blair’s doctor. The sixth and seventh ground relate to the Judge’s comments about Mr Blair’s veracity and the admission into evidence of Mr Blair’s two previous drink driving convictions.

Dr Yee’s evidence

[6] In his researches since he was charged, Mr Blair has focused on issues bearing on the reliability of breath testing devices, in particular, on what is called a slope detector in such a device. The purpose of a slope detector is explained in an article published by the National Association of Criminal Defense Lawyers (an American organisation) as follows:¹

The alcohol breath test is an indirect means of estimating the blood alcohol concentration (BAC). The most important assumption is that after a prolonged exhalation, the end-exhaled breath alcohol concentration (BrAC) accurately reflects the alveolar air, and hence, BAC. Implicit in that assumption is that no alcohol has been added to the breath as it passes from the lungs to the breath-testing unit (BTU). However, if there is alcohol in the oral cavity or pharynx, it will vaporize during exhalation and add to the BrAC. The functions of the slope detector have been designed with the goal of ensuring that a valid alveolar air sample is obtained.

1. Michael Hlastala, Wayne Lamm and James Nesci, “DWI – The Slope Detector Does Not Always Detect the Presence of Mouth Alcohol” The Champion (United States, March 2006).

Exhaled breath is monitored during the exhalation to obtain a suitable breath sample. Under normal circumstances, BrAC increases during exhalation. The original developers of the breath test reasoned that the BrAC rise would continue until the alveolar air was obtained, at which point the BrAC would level off. The first purpose of the slope detector is to follow the exhaled BrAC until a flat exhalation profile is achieved indicating the presence of alveolar air to insure that an adequate alveolar sample is obtained....

The second intended feature of the slope detector, is to determine when mouth alcohol is contributing to the BrAC by identifying a negative slope (a decrease in BrAC as the exhalation proceeds)....

[7] Mr Blair also arranged for Flinders Cook, an independent consultancy and laboratory based in Auckland, to undertake a comparative InfraRed spectra of alcohol and Medijel, which showed overlapping spectral peaks, such that if a mixture of the two substances was analysed by a spectrometer the resulting spectral profile would be additive of the two curves in regard to their respective concentrations.

[8] Mr Blair called Dr Yee to comment on the reliability of breath testing devices after having reviewed some literature on the issue and to comment on the likelihood of the cumulative effect of alcohol and Medijel in order to provide a basis for his submission that the breath testing result was wrong.

[9] As to the reliability of breath testing devices, Mr Blair sought to refer a number of articles to Dr Yee, which casted doubt, in particular, on the efficacy of slope detectors in such devices.

[10] The Judge said that although he thought such evidence was interesting, he did not find it to be of substantial assistance such that it could be admitted as expert evidence in terms of s 25(1) of the Evidence Act 2006. For example, one of the articles was a letter to the editor of a journal, Forensic Toxicology, by Dr Dominick Labianca of the Department of Chemistry, Brooklyn College of the City University of New York
– entitled “Non-foolproof nature of slope detection technology in the Dräger Alcotest 9510”. The Judge thought that this was not of substantial assistance. First, because the author’s qualification or experience was not set out and, second, because the device used in the present case was a Dräger Alcotest 9510NZ and Dr Yee was unable to say what similarities or differences there were between the two devices because he had not compared them.
[11] Here it seems to me that the Judge was on solid ground. To be admitted as expert evidence, the focus had to be on the device actually used in the present case and not on a similarly numbered device used in some overseas jurisdictions, which had not been compared to the one used in the present case.

[12] In any event, the Labianca letter sets out the results of rinsing one’s mouth with Listerine (21.6 per cent alcohol), Seagram’s Seven whiskey (40 per cent alcohol) and vodka (40 per cent alcohol) and concludes that the result of the experiments indicate that while slope detection technology in the Dräger Alcotest 9510 does identify mouth alcohol contamination in the majority of cases, the technology is not foolproof. Of significance, however, the author says that mouth-alcohol contamination dissipates rapidly over time. Any mouth-alcohol contamination from the Listerine had disappeared entirely after 19 minutes. In the present case, Medijel is apparently 10 per cent alcohol (less than half the alcohol in Listerine) and the evidential breath test was conducted more than 45 minutes after Mr Blair had applied Medijel to his dental plate. Based on the Labianca experiments it is not unreasonable to infer that any mouth alcohol contamination had disappeared entirely by the time of the evidential breath test.

[13] As to the comparative spectral of alcohol and Medijel, the Judge ruled it to be inadmissible because Mr Blair was not calling anyone from Flinders Cook who had undertaken the analysis. For myself, I do not think that the failure to call anyone from Flinders Cook necessarily made the analysis inadmissible. ESR scientists often give evidence based on analyses undertaken by technicians who have made the actual measurements.

[14] Dr Yee’s proposed evidence was that the spectral profile of Medijel contains spectral peaks that overlap with those of ethanol. If a mixture of two substances was analysed by a spectrometer the resulting spectral profile would be additive of the two curves in regards to their respective concentration. This may be the case, but I am of the view that this evidence would not be substantially helpful in the present case because of the known rapid dissipation of alcohol in the mouth and the lengthy period of time between the application of Medijel and the evidential breath test. There was
also no calculation of the degree to which a breath alcohol reading may be affected, if at all.

[15] The Judge also noted that Dr Yee had not analysed Medijel to ascertain whether it was true to its label, which stated it had a 10 per cent concentration of alcohol. I am, however, of the view that in the present case Dr Yee should have been able to rely on the label list of ingredients in giving his evidence. It is a reasonable inference to draw that the medication was true to its label.

Letter from Mr Blair’s doctor

[16] The letter from Mr Blair’s doctor dated 12 April 2017 stated:

Confirming that it is well known that the medication pain-killer tramadol interacts with alcohol and the combination should generally be avoided. Tramadol and alcohol both affect the central nervous system and the combination of consuming both can cause vertigo, loss of coordination, memory problems, sedation, drowsiness, poor concentration and impairment of judgement.

I note that Paul Blair had only just recently been changed over from codeine to tramadol for his pain relief (tramal SR 100mg tablets) on 21/3/16 so he would have been quite naïve to the effects of tramadol when he was arrested on 11/4/16.

[17] During the course of his evidence Mr Blair said that he was taking tramadol that night. He then sought leave from the Court for the letter from his doctor to be admitted as documentary hearsay to explain the side effects in order to make the submission that his appearance that night could be attributed, at least in part, to the tramadol. The prosecution objected and the Judge ruled:

Well if the prosecution does [not] admit it by consent [and] the person is not here to be cross-examined, I rule it’s inadmissible.

[18] For myself, I would have thought that evidence of the side effects of tramadol could be given by a suitably qualified general practitioner such as Mr Blair’s doctor. I am also of the view that such evidence could be regarded as non-controversial, such that a Judge may rule the letter admissible on the basis that undue expense or delay would be caused if the maker of the statement were required to be a witness in terms of s 18(1)(b)(ii) of the Evidence Act. The only proviso is that the doctor’s opinion that
Mr Blair would have been quite naive to the effects of tramadol when he was arrested would be inadmissible in terms of the general prohibition of opinion evidence set out in s 23 of the Evidence Act.

[19] In the end, however, such evidence would likely have been immaterial to Mr Blair’s conviction as he was not convicted on his appearance that night, but on the breath alcohol reading later obtained.

Remaining Grounds of Appeal

[20] The Judge noted that Mr Blair’s veracity was “somewhat in doubt” because the police officer said that he had told her that he had imbibed one glass of wine and one beer, whereas when he gave evidence, he told the Court he had consumed four or five bottles of beer. This off-the-cuff comment by the Judge was, however, immaterial to his finding that the charge of drink driving was proved beyond reasonable doubt. Such a finding did not rely on the lack of veracity or otherwise of Mr Blair. It was made on the evidential breath test result itself. What Mr Blair may have said to the police officer was immaterial.

[21] Finally, Mr Blair submits that the admitting into evidence of previous charges during the course of the trial was prejudicial. He says there was no logical necessity to admit the previous charges into evidence prior to a finding that the offence under s 56(1) of the Land Transport Act 1998 had been proven. However, Mr Blair was charged under a section that requires evidence of at least two previous drink driving offences. It is a more serious charge than a first or second drink driving offence. The maximum penalty is two years imprisonment and/or a fine of $6,000, whereas the maximum penalty for a first or second drink driving offence is three months imprisonment and/or a fine of $4,500. There was, therefore, a logical necessity to admit the previous charges as they were an essential element of the more serious offence. Mr Blair has been unable to establish that there was any prejudice to him.

Discussion

[22] The major difficulty for Mr Blair is s 64(4) of the Land Transport Act which precludes any challenge to the correctness of the evidential breath test. It provides:

64 Defences

...

(4) It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person’s breath—

• (a) that there was or may have been an error in the result of the breath screening test or evidential breath test; or
• (b) that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test.

[23] In Aylwin v Police the Supreme Court commented on s 64(a) as follows:²

The legislative intent is clear: the subsection precludes any challenge to the result of a breath-screening test or an evidential breath test, and any claim that an evidential breath test should not have been undertaken because of an error in a prior test. It is irrelevant whether the error was a machine error or an operator error. The right of election to have a blood test and the right to be advised of that right, conferred by s 70A, must be regarded as providing effective protection against the consequences of an error in a breath-screening test or an evidential breath test.

[24] The Supreme Court went on to state:³

It follows that, in order to establish the charge under s 56(1) against Mr Aylwin, the prosecution was required to establish only:

(a) The fact that breath-screening test was conducted;

(b) The fact that an evidential breath test was conducted;

(c) The results of these tests; and

(d) That Mr Aylwin was advised of his right to have a blood test.

[25] I am of the view that, even if admitted into evidence, statements of Dr Yee and Mr Blair’s doctor could not have overcome this statutory presumption of correctness. It would have made no difference to the outcome of the case.

[26] The test on appeal is whether the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. While I may have taken a somewhat different approach to questions of evidential admissibility relating to hearsay and expert opinion evidence, the ultimate question remains whether

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

³ At [14].

there has been a miscarriage of justice. The admission of the spectra analysis of alcohol and Medijel to allow Dr Yee to comment on it and the letter from Mr Blair’s doctor would not have made a difference to the ultimate outcome. There has not been a miscarriage of justice. Mr Blair was rightly convicted. No particular submissions were advanced in relation to the appeal against sentence. The sentence is, however, not manifestly excessive. The appeal against both conviction and sentence is therefore dismissed.








Woolford J