Simpson Scott: Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
Simpson Scott: Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill — First Reading 
[Sitting date: 07 November 2012. Volume:685;Page:6426. Text is incorporated into the Bound Volume.] 
SCOTT SIMPSON (National—Coromandel) 
: 
 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.