Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill

I move, That the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill be now read a first time. I nominate the Transport and Industrial Relations Committee to consider the bill. When this House first passed into law the Land Transport Act back in 1998 it established a strict and prescriptive regime around the evidential breath test and blood testing of drivers suspected of driving while under the influence.

The legislation has been intensively scrutinised by the courts over the years. Those charged with excess blood-alcohol levels often engage lawyers to test, probe, and nullify the technical aspects of the law in attempting to avoid conviction. The case law around this area is extensive. It is complicated, and it provides, in my opinion, far too many opportunities for escape from conviction resulting from what most ordinary Kiwis would call legal loopholes. I am delighted, therefore, that the Minister of Police, the Hon Anne Tolley, has recently ordered that the Police should come up with a better system for testing drunk drivers, because there are too many escape routes. I applaud that review, and I will look forward to the outcome of it in due course.

Today there are still too many people escaping prosecution, and it is the closing off of one of those escape loopholes that my bill seeks to address. My Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill will remedy a small but significant oversight, one not contemplated by the House when it passed the principal Act back in 1998. My bill amends the Land Transport Act to broaden the circumstances where a positive evidential breath test is admissible evidence in seeking a prosecution under the Act.

Under section 77 of the present law a positive breath test is not admissible in evidence if the suspect has elected to have a blood test subsequent to having blown a positive evidential breath test. Section 70A confers the right of an accused drink-driver, having produced that positive evidential breath test, to request that a blood test be taken. The accused driver has 10 minutes in which to make that decision. However, the law is very specific, and once a decision is made to elect to have a blood test taken, at that moment the preceding evidential breath test is no longer able to be used in evidence in any subsequent court case. That is section 77(3)(b). Under the law, the test is statute barred.

The principal Act assumes that once the option to elect a blood sample has been exercised by the accused drink-driver, blood will in fact be available to be taken from the accused drink-driver. The principal Act simply does not contemplate a situation where the particular medical or personal physical characteristics of the accused mean that a blood sample may not be able to be drawn from that person.

The Act is actually silent on what is to happen when a blood test is elected but a sample cannot be collected because a medical officer is unable to obtain a sample. But the Act does make it clear that once a blood test has been nominated, the previous evidential test is no longer admissible. The original intent of the legislation obviously was to provide statutory clarity that, once obtained, the blood test should have evidential precedence over the earlier breath test. So let us consider when it may be, for instance, and under what possible circumstances it would be, that a blood sample perhaps may not be available from an accused drink-driver.

A recent Rotorua District Court case, the Police v Childs, heard before Judge M A MacKenzie in just July of this year, provides an absolutely excellent example of the situation my bill seeks to remedy. There the defendant, Childs, who was positive for hepatitis C and also an intravenous drug user of many years, was apprehended by police and underwent a breath-screening test that returned a result of 400 micrograms. He then underwent an evidential breath test that returned an even increased result of 655 micrograms. He was then advised of his right to a blood test, and, of course, he immediately accepted it. As the tourniquet was applied, Mr Childs taunted the medical officer by saying “Good luck” and smiling. Three attempts later, made over 40 minutes, the medical officer was simply not able to locate an appropriate vein and no adequate blood sample was obtained from Mr Childs. Years of intravenous drug use had more than taken its toll on the veins in his arms.

Judge MacKenzie examined in detail existing case law around this area. I commend members to take the time to read her very good judgment, which sets out in clear detail why my bill is required to remedy the situation where, following two positive breath tests, Her Honour was forced to, by statute, dismiss the drink-driving charges against Childs. Childs literally got off scot-free.

The judge said, and I quote directly from the judgment: “It is accepted that there is no specific statutory provision which addresses the situation where a blood sample is not in fact collected on the basis that the medical officer or practitioner has been unable to obtain a sample such as in Mr Childs’ case. I am acutely conscious of the need and importance of accountability for drink-drivers. The frustration in this case”, said the judge, “is that Mr Childs clearly contravened the sprit of the legislation given the evidential breath test result, and in that sense is evading responsibility for his actions of drink-driving and the consequences of it.” The judge went on to say: “A statutory amendment would be required to address the unusual circumstances such as Mr Childs’, where blood cannot be taken for medical reasons.” This bill provides that statutory amendment.

I was pleased to hear from Mike Noon on behalf of the Automobile Association say that the Automobile Association supports the intent of this bill. It will be suggesting to the select committee that the words “any reason” be narrowed slightly to identify that the reason should be of a medical nature. Doing so would, of course, prevent a situation where, for instance, no testing equipment or no testing officer was available, thus preventing a blood sample from being taken. That is a matter very appropriate for consideration by the select committee, and it is a suggestion I am more than happy to explore. I certainly appreciate the support of the Automobile Association.

I note that the Attorney-General has tabled a report on my bill under section 7 of the New Zealand Bill of Rights Act. The nub of the report from his officials is that my bill would in some way infringe upon the rights of a person to be presumed innocent until proven guilty. Nothing could be further from my intention in moving this bill. The purpose of this bill is to entirely confirm the previously very clear intention of this House that driving under the influence of alcohol is both legally and socially unacceptable, and those who do should, after evidence beyond reasonable doubt has been established in a court of law, be held accountable for their actions and accept the full legal consequences of those actions.

My bill does not remove the presumption of innocence. It merely provides that should blood not be available for testing, then the police shall be permitted to introduce into evidence before a court of law the evidential breath test taken prior to the nomination of a blood test. It would absolutely, of course, still be up to the police prosecutors to prove their case to the satisfaction of beyond reasonable doubt. That is the measure of all criminal convictions within our judicial system. I respectfully disagree with the views expressed by the Attorney-General’s officials. In so doing, I remind honourable members that it is Parliament, this Chamber itself, that is master of its own legislative-making capacity.

So, in conclusion, this bill seeks to remedy a loophole not anticipated when the principal legislation was enacted. It is an amendment that will impact on people such as Mr Childs, who do not and cannot currently accept responsibility for the consequences of their drink-driving, due to an omission and an oversight on behalf of this House in the principal Act.

I would like to acknowledge and thank my colleague the senior Government whip, Michael Woodhouse, for his help, support, and guidance with this bill. The genesis of this bill was his, and arose from a previous court decision where similar circumstances to the Childs case prevailed. I look forward to the select committee consideration of the bill and to progressing the bill through the House. I thank honourable members for its favourable consideration.

Let me say at the outset that we in the Labour Party seek to be a constructive Opposition and to work with the Government where we can on legislation, so we will support this legislation, the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill, going to the Transport and Industrial Relations Committee. Having said that, we concur with the view of the Automobile Association that the bill as it is worded currently is too broad, and we would also want to see some amendment to those final words in the bill, “for any reason”. We would need to see amendment to that and also consideration of the Attorney-General’s report before we could support it any further, but we do look forward to the debate and the consideration at the select committee.

Clearly, it does seem inadequate that where an evidential breath test finds or suggests that someone is over the drink-driving limit, there appears to be a mechanism by which a small number of people may be able to avoid prosecution. It is important to reinforce, I think, that we are dealing with probably a very small number of people—in fact, I believe that the member in charge of the bill, Scott Simpson, cannot tell us exactly how many people might be captured by this legislation. Therefore, we wonder whether this really is a significant issue that is so desperately in need of attention. In fact, the member suggested that there are many ways to avoid prosecution for a charge of drinking in excess of the limit. If that were the case, then surely this should be a Government bill that addressed all of those issues. We wonder on this side just how significant the problem is.

I have to look at some of the language that Mr Simpson has used around this issue. He cited the case of a defendant who was apparently hepatitis C positive. I do not know what that has to do with anything. I do not know why Mr Simpson felt the need to bring that fact into the debate at all. That person was also an intravenous drug user. I read in the newspaper Mr Simpson referring to this as an issue that was pretty much specifically designed to capture people who are intravenous drug users. In fact, he has not offered any other reason why it might be difficult to take blood from someone. There are a range of reasons why it may be difficult to take blood from somebody. One is being overweight, another is stress. At a time of stress, the body actually withdraws the blood from the limbs—the arms, the legs—back towards the vital organs and the brain. It is the fight or flight response. It is quite a normal thing to happen and, indeed, if someone were found to be driving over the limit, it is probably fair to say that that would be a stressful situation and that fight or flight mechanism may kick in and it may be difficult to draw blood from these people. But these situations have not come up in Mr Simpson’s discussion at all. He has focused this solely on a group of people whom I suspect he deems to be less worthy of a reasonable hearing before the law. Because they are intravenous drug users, he has decided that they are somehow less worthy before the law.

You have to wonder exactly what it is that is driving Mr Simpson here, or why he has used that language. Maybe he is trying to convince the good National voting people out there that this will not affect them somehow, because this is directed at a very narrow group of people and not at them. I do not know. Mr Simpson might be able to enlighten us as to why he has used the particular language that he has, but that is up to him. Suffice it to say that there are a number of reasons why it might be impossible to draw blood.

I do want to say, though, that we must be mindful of the Attorney-General’s report. Mr Simpson referred to it as the Attorney-General’s officials’ report. I think that is unfair on the Attorney-General. The Attorney-General’s signature is on this. I know John Banks has set a new standard for signing documents and whether or not you are supposed to have read them before you sign them, but I take the Attorney-General’s signature on there as this being something that he has not only read but something that he supports. So this is the Attorney-General’s report, and we do have to be mindful of it. In fact, if the Attorney-General were to offer his thoughts in this debate, that would be welcome on this side of the House. But we do need to be mindful of what the Attorney-General said.

I find it ironic that this Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill is being promoted by a National Party member. It is being supported by the National Party, and it will get, I am sure, the support of the governing parties tonight as well as some of the Opposition parties, when it will have such a small impact on the road toll and the harm caused by drink driving, when in the same breath those parties will refuse to support lowering the drink-drive limit from 0.08 to 0.05. That is a measure we know is evidence-based and will have a significant impact on the harm on the roads caused by alcohol. The Ministry of Transport has provided evidence to the Minister of Transport that it will reduce the number of people killed on our roads every year by up to 30. Up to 30 lives can be saved every year if the Government would just accept the advice of its own officials and would follow public opinion. Eighty-five percent of New Zealanders support lowering the drink-drive limit from 0.08 to 0.05, which international evidence tells us not only has an impact on the people who drive with a blood-alcohol limit of between 0.05 and 0.08 but also significantly reduces the number of people who are heavily intoxicated who get behind the wheel, drive their vehicle, cause accidents, and kill people.

💬 Hon Member: How?

I heard the word “How?” from the far side there. The evidence is actually quite clear and quite simple. It is quite simple. A limit of 0.05 requires people to make a decision about whether or not they get behind the wheel much earlier in the process of consuming alcohol, because once they get over 0.05 but are below 0.08 they lose the capacity to make a sensible decision about whether or not they should get behind the wheel. It is as simple as that. The evidence supports it. The evidence that the Minister was given supports it. Public opinion supports it. It is what people want. It is the right thing to do. It will save lives, and yet this Government will not do it. What it is doing instead is a piecemeal piece of legislation like this, which is fine in and of itself, but it is meaningless in the grand scheme of trying to reduce the road toll and trying to reduce the harm caused by alcohol and the harm caused by drink-driving. It is, in fact, from the language used by Mr Simpson, being used to isolate some members of our community and further divide our community, which we know this National Party is so very, very good at doing.

So although we appreciate that there is probably some positive motivation behind what Mr Simpson is trying to do, and although we appreciate that there is an inadequacy in the law, which we will work with the Government to tidy up, we think there are much larger issues that need to be addressed, and could be being addressed, by this Government if it was actually prepared to do the right thing and address the harm caused by alcohol on our roads with a piece of legislation that would actually make some difference.

It is great to follow King’s College old boy Iain Lees-Galloway, who is now, we know, a social campaigner. It is great to see someone sticking up so staunchly for intravenous drug users, a group that has not been stuck for before. That is one interpretation. The other interpretation is that that party is so low in the polls that those members are looking for any interest group to support them. That is probably the interpretation that I would go with.

No one is saying, Mr Lees-Galloway, that this is the biggest issue that has ever come before this House. No one is saying that. The member Scott Simpson himself should be commended for finding this issue—it is a discrete issue, it is a narrow issue, but in its way it is an issue that should be remedied, and there is a problem here. We understand that the evidential breath-testing happens, then there is a 10-minute rights period, and then we go to the blood test. I have no experience of that test; some members in this House may do, but I have none. But there is a real problem here. There is a real problem. We understand that some 10 years ago the law reinstated the right for blood tests for all drivers, and to compensate for that, and for the removal of the right of drivers to challenge the accuracy of the evidential breath test, we have got the problem here that has arisen and that the member Scott Simpson has brought to this House, because case law has made it clear that it needs to.

This bill aims to close a loophole whereby a small, select group of drunk drivers are able to avoid prosecution. The truth is, Mr Lees-Galloway, it is a small number of people. It will basically be just intravenous drug users, where they cannot have blood taken from them because the vein cannot be drawn from.

💬 Iain Lees-Galloway: That’s one reason. What about the other reasons?

There may be other reasons for it, as well, but that will absolutely be the issue that is coming before the courts, and the case law tends to indicate that. So if a person complies with the blood-taking process and they cannot be prosecuted—

I am sorry to interrupt the honourable member. Honourable members, the time has come for me to leave the Chair.

Debate interrupted.

The House adjourned at 10 p.m.