Judge finds a flaw in the law

01:43, Jan 31 2009

The High Court has put a block on the police practice of making drink-drivers pay for a doctor to take their blood samples.

The ruling by Justice Christine French is a win for Christchurch barrister Andrew Bailey and may mean urgent changes are needed to legislation, the Christchurch Court News website reported.

Bailey's client was convicted in the District Court of drink-driving in March. He was fined $600 and ordered to pay court costs of $130, medical expenses of $102.60 and an analyst fee of $93, and disqualified from driving for six months.

Bailey took an appeal to the High Court over whether the District Court judge had jurisdiction to order payment of the medical expenses.

The order to pay medical expenses has been routinely imposed all over the country for many years.

"There was some argument before me as to whether it was fair and reasonable for defendants to have to pay the medical expenses when all they were doing was exercising their statutory rights to have a blood sample taken," said Justice French. Such policy matters were for Parliament to consider.

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"The District Court is a creature of statute, and it follows (that) the power to make the order must be derived from a statutory provision."

The police practice had been to pay the doctor's fee for taking the sample, but if the sample showed the driver over the limit reimbursement from the offender was always sought.

She ruled that legislation covered only the payment of the analyst's fee, but did not give jurisdiction to cover other medical expenses. She ruled that the medical expenses could not be classed as reparations or a fine. The appellant had argued that a fine was not meant to reimburse the police for costs and a person should not be punished for exercising their statutory right to a blood test.

At the hearing, Bailey gave the example that in drug cases the offenders were not expected to pay for police surveillance operations.

Justice French said a deeming provision similar to the one used to collect the analyst's fee was needed.

"There is no such provision and accordingly no jurisdiction to order payment of the medical expenses. The appeal is therefore allowed and the order to pay medical expenses quashed."

NZPA