Loophole lets policeman avoid drink-drive test

Photo / Brett Phibbs

An Auckland police officer has avoided a drink-driving blood test because of a loophole in the law.

The Herald has learned Constable Matt Hooper - a former team policing officer - failed an initial breath test after being pulled over by colleagues while driving on Union St in downtown Auckland about 11pm on December 11.

He was taken back to the police station, where officers planned to do an evidential breath-test.

It is understood that he asked the officers if he could go to the toilet.

He was allowed to do so, but emerged with a head injury and had to be taken to hospital.

A Land Transport Act technicality states that blood collected in a hospital for testing the presence of alcohol can be used in a court only if the suspect has been hospitalised because of a car accident.

It is not known whether police took a blood-alcohol sample from Mr Hooper while he was in hospital.

Police spokeswoman Noreen Hegarty said Auckland City police carried out a criminal investigation into the suspected drink-driving but, because of the technicality, there could be no criminal charges laid.

"However, he was stood down on full pay for the duration of the criminal investigation and returned to work on restricted (non-operational) duties in January this year.

"He is currently the subject of an ongoing employment practices and code of conduct internal investigation."

Ms Hegarty said that when Mr Hooper was pulled over, he did not identify himself as a policeman and complied with the patrol officers' requests.

The Independent Police Conduct Authority was notified of the incident and subsequent police investigations in mid-December.

The suspected drink-driving occurred two days before former police national prosecutions manager Superintendent Graham Thomas refused a breath test in Wellington.

This month it was revealed that Superintendent Thomas was cleared by an internal investigation but was now on sick leave.

Police Commissioner Howard Broad said then that Mr Thomas was legally allowed to refuse a breath test, but as a senior member of police he would be expected to voluntarily take one.

Mr Broad said the issue was an employment matter, saying this month: "We would take, and I do take, the issue of a senior officer who drinks and drives and then fails to apply with our code of conduct very seriously."

* The original version of this story incorrectly said that Constable Matt Hooper refused to take an initial breath-test. Mr Hooper did in fact agree to the first test. A second breath-test at the police station was not taken.