Man passed fit to drive... then arrested

Photo / File

A Wairarapa man was declared "fine to drive" after a roadside breath-alcohol test, only to be nabbed at a checkpoint a few hundred metres away.

Christopher Saba, 42, will fight drink-driving charges, saying police "put me wrong".

Police breath-tested him before he got behind the wheel to leave a Carterton wine festival on March 19 and told him he was fine to drive.

The Featherston father of four told the Herald police at the second checkpoint refused to let him off when he told them about the first test result.

Saba said he was waiting for a pre-organised ride home from the festival when a police officer came over.

He would not say how much alcohol he had drunk, but said: "I wasn't drinking that much.

"I just got told that I could go, and then around we go about 300m, and that's when I was over [the limit]... That was the part that pissed me off."

In Masterton District Court on Tuesday, Saba pleaded not guilty to driving with a blood alcohol level of 101mg. The legal limit is 80mg.

Saba's lawyer, Virginia Pearson, said he drove only on the assurance that police said he was fine to drive. He had been quite surprised by this, the Wairarapa Times-Age reported. "So there was a piece of malfunctioning [alcohol measuring] equipment."

Saba said he needed a licence to drive trucks as part of his job and also to see his estranged family.

Police prosecutor Senior Sergeant Garry Wilson said the officer in charge of the case had confirmed that Saba had undergone a breath-screening test and passed, before he began to drive and was subsequently tested again at the checkpoint nearby.

Judge Stephen Harrop said he was not sure whether the police assurance "amounts to a defence but it's certainly worth thoroughly looking into".

The judge said the previous breath test could amount to the "special reasons" necessary for a convicted drink-driver to avoid being disqualified, or for a discharge without conviction.

A spokesman for police national headquarters, Jon Neilson, said there were "a number of factors" that could have caused the change in blood-alcohol levels.

"In this case it is not known the time between when Mr Saba was breath screen tested by the first officer and the checkpoint officer."

Mr Neilson said the breath-screening process was only an "indicator" and a precursor to asking for an evidential breath test.

A lawyer specialising in drink-drive cases said he had never seen one in which police had first cleared a defendant to drive.

Wellington barrister Bill Johnson said: "I've never seen anything like that in over 30 years. If someone was told he could drive, and he did, that might be a defence on the basis of [lack of] mens rea."

Mens rea is the mental ingredient of an offence, the intention or carelessness usually required before a person can be considered guilty.

It was considered a vital element of an offence unless excluded by statute, Mr Johnson said. "I would say there is an element of intent [needed]."

However, he said courts used to assess defences in drink-drive cases differently from how it's done now.

"[Recently] I've been disappointed in the way that this legislation has been administered by the courts."