Police get the process wrong

JIMMY ELLINGHAM
Last updated 12:44 05/05/2012

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A Feilding man caught behind the wheel over the drink driving limit has escaped conviction after police failed to negotiate a "legal minefield" that is often tripping officers up.

Blair Justin Zajonskowski, 25, was allowed to walk free yesterday after being pulled over in North St, Feilding, in the early hours of January 4 and found to have a breath alcohol reading of 504 micrograms. The legal limit is 400mcg.

Defence lawyer Phillip Drummond took no issue with that, but successfully argued in the Feilding District Court that police did not do things correctly once Mr Zajonskowski was taken back to the police station.

After having what's known as a breath-screening test, Mr Zajonskowski was shown by Constable Shirley Fotheringham a list of lawyers whom he could consult.

But in less than a minute, Mr Zajonskowski was asked to have a final evidential breath test, before starting his statutory 10-minute period of deciding whether or not to have a blood test.

Only after that did he phone a lawyer, who advised him against taking the further test.

The Bill of Rights Act gives anyone being detained the right to legal advice without delay.

Judge Barbara Morris decided that Mr Zajonskowski didn't get sufficient time to think about consulting a lawyer before his evidential breath test, and that talking to a lawyer after his 10 minutes was up was meaningless.

"There were two significant breaches of the Bill of Rights, so the evidence would be unfairly obtained."

The judge said, however, that police had acted in "good faith".

"It's an important protection that a defendant is entitled to a lawyer before they are put in jeopardy."

Police Association president Greg O'Connor said excess breath alcohol charges were the ones most likely to trip police up on technical points.

"Officers have got to get it right, and sometimes they just get things wrong," he said. "Over the years the excess breath alcohol procedures have always been a bit of a legal minefield."

New police officers in some areas were often put on "booze bus" duty when straight out of college to make sure they got the procedure right, Mr O'Connor said.

Otago University professor of law Kevin Dawkins said in Mr Zajonskowski's case, police gave him his rights, so he knew he could consult a lawyer, but then proceeded on to the next part of the process straight away. That Mr Zajonskowski couldn't make his mind up about which lawyer he wanted to talk to was not a refusal. "It's a failure by the police to comply with the fundamental requirement of the process."

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Prof Dawkins said the right to seek legal advice was intended to allow people the opportunity to make an informed decision.

THE RIGHT TO A PHONE BOOK

In 2010, Taranaki man George Oliver defended a drink-driving charge after arguing police hadn't given him a phone book so he could call a lawyer.

The Eltham man wanted to contact his preferred lawyer, Peter Brosnahan, but neither he nor the police had his phone number. A point of contention was whether or not Mr Oliver was then given a phone book.

In court Mr Brosnahan asked the police officer dealing with Mr Oliver if he had heard of Telecom's 018 enquiry service.

The officer said he hadn't.

Mr Brosnahan, of Whanganui, has gained a reputation for exposing procedural holes in drink-driving matters, but was ironically convicted himself for the offence in 2007. He unsuccessfully appealed on a technicality.

- © Fairfax NZ News

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