Ankle defence rejected

A man who claimed police broke his ankle while arresting him for drink driving has failed to get the conviction overturned.

Sven Kelly was arrested after fleeing the scene of his crashed vehicle in Nelson and was found to have a reading 766 micrograms of alcohol per litre of breath — the legal limit is 250 micrograms.

Kelly argued his rights were breached after the police failed to get him medical attention for a sore leg, choosing to keep him at the Nelson police station for a breath test.

Kelly said his ankle was injured by a police officer standing on his leg when he was being arrested, but no conclusion was reached as to what caused the injury.

Police assumed he was faking, but it was later found he had a fractured bone in his ankle.

A High Court decision from Justice David Collins said Kelly had asked police to take him to hospital, but they decided to obtain a breath reading first.

Kelly appealed the conviction on the basis the sentencing judge made a mistake by allowing his breath screening test result to be admitted as evidence.

Justice Collins determined District Court Judge Tony Couch ‘‘reached the correct conclusion’’ in accepting there had been a breach of rights, but still allowing the evidence to be admitted.

‘‘Kelly’s fractured ankle undoubtedly caused him pain,’’ Justice Collins said. ‘‘The police were not responsive to his plight because they suspected he was feigning his injury, even though he repeatedly complained of the pain.

‘‘On the other hand, the injury, while serious, was far from life threatening.’’

Justice Collins said the officers hadn’t intended to breach Kelly’s rights, and their actions did not mean the breath test results could not be used. He ruled there was no basis for the evidence to be excluded and Kelly’s sentence of three months’ home detention, with a one year driving disqualification, was upheld.