A young foreign student has joined an exclusive club of drink-drivers who have left court without a conviction.
Fewer than 0.4 per cent of those charged with drink-driving get discharged without a conviction against their name.
Jie Wang, who turns 22 tomorrow, became one of them yesterday when she appeared before Judge Jonathan Down in Napier District Court.
Wang, a student at the Eastern Institute of Technology, was pulled over for a minor traffic breach in Napier on April 6. She recorded a breath alcohol reading of 544 micrograms per litre of breath. The adult limit is 400mcg.
Her lawyer, Scott Jefferson, said a conviction might mean Wang could not get a visa to allow her to stay until the end of the year to complete her course.
He said it was "difficult to point to the consequences for her", with Immigration New Zealand saying only that it judged every case on its merits, and it could not say whether certain convictions would necessarily preclude her from obtaining the appropriate visa.
"Common sense alone suggests that this sort of conviction would certainly make it difficult for her, at the very least," Jefferson said.
Prosecutor Sergeant John Ashfield said police did not agree to the discharge application. "It is a precedent we'd rather not set."
The judge said a conviction might present an "unclear risk but an obvious risk, it seems to me, that your immigration status may be at jeopardy".
There was no guarantee that a conviction would mean Wang could not stay and complete her studies, "but there is a risk that that may happen".
He said it was Wang's first offence and "a very low reading", and the consequences of a conviction outweighed the seriousness of the offence.
It was "a finely balanced decision and should not act as any precedent for future cases", the judge said.
Wang was discharged without conviction but fined $375, ordered to pay court costs of $130 and disqualified from holding a driver's licence for six months.
Figures provided by the Justice Ministry show there were 136,942 convictions for drink-driving between June 2008 and July last year, and just 355 people had been discharged without conviction over that period. The figure fluctuated between 0.2 and 0.36 per cent each year.
A discharge without conviction can be granted only if the consequences are "out of all proportion" to the offence.
"The potential consequences have to be real and appreciable, not just speculative," a ministry spokesman said. "They are not granted just because a person would suffer inconvenience or mere hardship."
Immigration NZ said yesterday that drink-driving was a serious conviction, and was specifically listed in residence instructions as a matter that required a character waiver.
Anyone applying for a visa had to declare charges or convictions in any country.
A drink-driving conviction could possibly make a person liable to deportation under the Immigration Act, it said, but each visa application was considered on a case-by-case basis.
Discharges without conviction by district court, from 2008 to 2013:
North Shore: 46
Palmerston North: 8
Lower Hutt, Wanganui, Hastings, Levin: 2
New Plymouth, Upper Hutt, Waipukurau, Wairoa: 1
- The Dominion Post