Police to appeal drink-driving acquittal

ANNA TURNER
Last updated 05:00 13/12/2012

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Prosecutors are set to appeal after a Westport criminal lawyer avoided a drink-driving conviction because police conducted a breath test on his private property.

Doug Taffs, 59, who used to practise in Christchurch, was caught by police on August 19 with a reading of 480 micrograms of alcohol to a litre of breath. The legal limit is 400mcg.

Taffs has three drink-driving convictions, including an incident where he hid coins in his mouth in a bid to beat the breath-testing machine.

In the latest incident, police attempted to pull Taffs over about 200 metres from his house in Fairdown Rd. Taffs said he did not see the police lights and pulled into his driveway.

The police followed him on to his property and conducted a breath test, which showed he was over the limit.

However, Westport District Court Judge Michael Behrens dismissed the charge because the police conducted the test on private property.

"I find that New Zealand citizens have an expectation that police will not come on to their land and randomly breath-test them," he said.

"I believe the evidence was improperly obtained."

Police prosecutor Dave Murray told The Press he was disappointed with the decision and an appeal was likely.

"I am very disappointed. I can't have a personal opinion, and it is ultimately the judge's decision, but it is not what we were hoping for," he said. "It's very early days, but we will look at forwarding this on for appeal."

The police said that in conducting the breath test they were acting on an "implied licence", which entitled someone to enter a property and knock on the front door to communicate with the occupier, provided they were there for a lawful purpose.

If they were asked to leave, they had to, but police said Taffs never asked them to leave.

Judge Behrens said the implied licence did not permit police to enter a property to conduct a breath test, based on the general right of privacy that individuals had within their property.

Without implied licence, the police would have needed a warrant to breath-test Taffs.

The judge said public interest did not outweigh privacy, particularly on a police officer's "whim", with "absolutely no grounds for a belief . . . that a motorist has been driving with excess alcohol on his breath".

He was not prepared to say Taffs had seen the police car's flashing lights and he believed Taffs had been surprised and concerned to find the officers in his driveway.

Taffs declined to comment to The Press yesterday, but his lawyer, Pip Hall, was pleased with the outcome.

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"The judge followed established legal precedent and what it is saying is that the police have no right to gather information in that way," he said.

The decision comes as Police Minister Anne Tolley seeks to come up with a better system of testing drink-drivers because too many are finding "escape routes" to avoid prosecution.

She said yesterday that she wanted to "catch and prosecute as many drink-drivers" as she could.

"I have asked police to review their processes to see how we can simplify the process," she said.

Canterbury road policing manager Inspector Al Stewart said people should not think this was a way to avoid being convicted for drink-driving.

"The officers obviously thought they had the grounds to breath-test him, but in this case we didn't have it correct," he said. "That's what the judges are there for, to review the evidence police give them and keep us on our toes. It's not a way to avoid police.

"If you attempt to do this, we can and will pursue you."

- The Press

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