Businessman sidesteps conviction

JIMMY ELLINGHAM
Last updated 09:00 14/09/2013

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In a rare, possibly precedent-setting court case, a Dannevirke businessman caught drunk behind the wheel has avoided conviction because the nurse who took his blood sample wasn't technically authorised to do so.

Daniel Wayne Phillips, 36, was pulled over by police on May 19 and found to have a blood alcohol level of 88 milligrams. The legal limit is 80mg.

Phillips was to have defended a drink-driving charge in the Dannevirke District Court yesterday, but the hearing wasn't necessary because police offered no evidence and the charge was dismissed.

Defence lawyer Phillip Drummond said the nurse who took the blood sample "didn't have the requisite authority to do so".

He reserved his position on costs, suggesting he could later seek for police to cover Phillips' legal fees.

Outside court, Mr Drummond said the nurse signed her name followed by the letters "RM" - meaning registered midwife - on the paperwork. But whoever takes a blood sample must have the authority to do so, including holding a current nursing practising certificate.

"The nurse in this case was registered [but] subsequent inquiries with the Nursing Council revealed that she didn't have a current practising certificate," Mr Drummond said.

Mr Drummond was hired privately in this case and legal aid is not available on drink-driving charges, meaning anomalies with blood samples could be easily missed.

The Manawatu Standard asked police if the qualifications of those who take samples are checked and what impact this case would have on procedures.

A spokeswoman said: "Specific challenges relating to the authorisation of those who take blood samples are rare.

"Police will however be following up this particular case to consider what further action may be appropriate."

Otago University professor of law Kevin Dawkins said many people who tried to defend drink-driving charges on procedural matters were unsuccessful, and in doing so they risked losing the discounts in sentence available to those who plead guilty early.

Neither Prof Dawkins nor Mr Drummond were aware of any other cases like Phillips'.

Phillips could not be reached for comment.

CASES OF NOTE

Other notable cases of people avoiding drink-driving convictions include: In the Feilding District Court last year, Blair Justin Zajonskowski's case was thrown out as he wasn't given the chance to speak to a lawyer at the right time. His breath alcohol reading was 504 micrograms. The legal limit is 400mcg. Mr Drummond was his lawyer in court. In 2010, Taranaki man George Oliver defended a drink-driving charge on the basis that police didn't give him a phone book so he could call a lawyer. In court he was represented by Peter Brosnahan, a Whanganui lawyer who has gained a reputation for exposing procedural holes in drink-driving matters. Ironically Mr Brosnahan was himself convicted of drink-driving in 2007.

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- Manawatu Standard

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