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A man has had his drink-driving charge dismissed after he told a judge he downed three double shots of bourbon and a beer at home in the 15 minutes after he stopped driving.
Wayne Leigh Holland was acquitted of driving with excess breath alcohol after the Manukau District Court found police could not prove he had been drinking before he got into the car.
But the police appealed to the High Court against the decision, and the court ruled this week that the case must be tried again.
Holland was spotted by the crew of the police Eagle helicopter when he had a minor collision at an intersection near his Otahuhu home.
Police watched from the air as he turned into his driveway, got out of the car and walked into his garage.
Holland yesterday told the Weekend Herald he thought it was odd when the police helicopter shone its lights on him and his friends, who were having a few drinks outside.
"I didn't even think that they were chasing us ... By that stage I'd had two double shots and still had a beer in my hand when the cops showed up."
The officers breath-tested Holland. He failed.
A second test, taken at the Otahuhu police station about 40 minutes after he had stopped driving, returned a result of 656 micrograms of alcohol per litre of breath.
The legal limit is 400mcg.
Holland, and a witness who was in the car with him, told Judge Andree Wiltens that Holland had drunk no alcohol before he got in the vehicle.
Holland also disputes he was involved in a collision.
"I was a bit disappointed in the court case because the judge thought I'd hit another car," he said.
"It was a sneaky manoeuvre. The cops were saying I hit this other car, but I told them there wasn't any damage to it and I hadn't had an accident."
Judge Wiltens said Holland's story was doubtful, but he could find no evidence on which to convict him.
Justice John Priestley summarised Judge Wilten's problem in his decision this week. "The judge was of the view that he had 'absolutely no doubt' that [Holland] had consumed alcohol before he was driving, but he was unable to say what the proper breath-alcohol level might have been at the time of the driving concerned."
Holland had said in his evidence that he drank three double shots of spirits and had started a beer before the police arrived.
Justice Priestley over-ruled Judge Wilten's ruling, and sent the case back to the Manukau District Court.
In his judgment, Justice Priestley said it would be a problem for the police if a driver could avoid a drink-drive conviction by drinking alcohol immediately before a breath test.
Holland is resigned to having to go back to court, but is sticking with his story.
"If I had the money I would appeal ... I'd get a test to see if you can get up to 560 micrograms in 20 minutes. I hadn't been eating and they reckon you can get up to that on a six pack."
