Police blunder lets motorist escape conviction

Photo / Herald on Sunday

A man who crashed his car and failed alcohol tests has escaped a drink-driving conviction because of a police blunder.

In a Supreme Court decision released yesterday, Justice Peter Blanchard said the case against Wellington man Matthew Birchler was "dogged by mistakes".

On September 24, 2007, Mr Birchler was involved in a car accident on central Wellington's Tinakori Rd.

When police arrived at the scene, a Constable Thompson "observed that he smelt of alcohol and was unsteady on his feet".

But the female officer did not have a breath screening device with her and told Mr Birchler he was to go back with her to the station for a blood test.

Once there, Mr Birchler failed both breath- and blood-alcohol tests and was charged with drink-driving.

However, at the District Court hearing, the judge held that the constable had no power to take Mr Birchler to the station because a breathalyser was readily available at the roadside, and dismissed the charge.

The officer's actions subsequently contravened part 6 of the Land Transport Act, which says that a number of steps should be taken - including a roadside breath test - before an evidential blood test is given to a driver.

If a driver goes back to the station, he or she must do so voluntarily.

"She accepted in evidence that she [Ms Thompson] could have radioed to have a device brought to the scene from the Wellington Central Police Station," said Justice Blanchard in the Supreme Court decision to allow the appeal.

Ms Thompson said she had advised Mr Birchler of his rights under the New Zealand Bill of Rights 1990 and he had come voluntarily to the station.

"The district court judge understandably found that this was not so," Justice Blanchard said in his ruling.

Mr Birchler was charged and convicted of careless driving in relation to the Tinakori Rd accident.

Last night Mr Birchler told the Herald he was happy that the Supreme Court had ruled in his favour and wanted people to learn from his case.

"I certainly didn't know my rights and most of us really don't know what our rights are. And if a person of authority says to go with them, then what are you going to say?"

The 30-year-old emphasised that he had never wanted to go to the police station with the constable and that she had known that.

"I felt very pressured to go with her.

"I even said something like: 'Are you sure I have to go?'

"She was exceptionally friendly and chatty."

Mr Birchler said he had lost a fair amount of money to legal fees in the past three years but he was happy because the end result was something others could learn from.