Lenient drink-drive ruling overturned
POLICE have successfully appealed after a drink-driver had his case dismissed because he was too drunk when he rejected having a lawyer.
Darin John Buck had a charge of driving with excess breath alcohol dismissed in February by Judge Peter Butler.
Buck’s unusual defence was based on being so drunk that not only was he unable to drive, he was unable to understand the legal process.
He failed an initial breath test after being stopped on State Highway 2, Upper Hutt, in January 2013. He was taken to the police station where he spoke to a lawyer on the phone but could not deliver enough breath to do the second breath test.
A blood test was proposed so Buck said he wanted to consult a lawyer again, in accordance with his rights, but this time he could not get a lawyer on the phone.
He rang three lawyers but none answered.
Buck then told police to just ‘‘get on with it’’, waiving his right to a lawyer.
‘‘The defendant then advised Senior Constable Davies that he wanted to get on with the procedures,’’ court documents said.
Judge Butler said the difficulty was that Buck was found to have a blood-alcohol level of 245mg of alcohol per 100ml of blood when he said ‘‘Let’s get on with it’’.
The legal limit was 80mg of alcohol.
The judge said the Court of Appeal had ruled that someone waiving the right to a lawyer had to do so ‘‘voluntarily, knowingly, and intelligently’’.
‘‘In my view, a man with three times the blood-alcohol level for legal driving is not capable of an intelligent assessment as to what a waiver is or that what he is waiving in the circumstances and, in my view, that renders a fatal blow to the prosecution case.’’ The judge dismissed the case. But police appealed to the High Court.
Justice Denis Clifford said the evidence showed Buck did understand his rights – he had chosen and spoken to a lawyer already that night.
‘‘In those circumstances, and as the police argue, there is no reason in my view to question that, when Mr Buck said ‘let’s get on with it’, that is what he meant.’’
Justice Clifford allowed the police appeal.
He did not enter a conviction but sent the case back to the District Court for rehearing.