A judge has thrown out a drink-driving charge against a Westport lawyer because police gained evidence unfairly.
Doug Taffs, 59, was facing his fourth drink-driving conviction.
Two Westport constables nabbed him at his home north of Westport last year, a month before his conviction on an earlier drink-driving charge. They believed he might have driven from the nearby Pig and Whistle Hotel.
In a reserved judgement, released yesterday, Judge Michael Behrens QC said police had unfairly obtained evidence against Taffs by going on to his property.
"I find that New Zealand citizens have an expectation that police will not come onto their land to randomly breath test them," Judge Behrens said.
"That is a reasonable expectation because, while Parliament has allowed random breath testing of motorists on a road, it has not legislated to enable police to go onto private land in order to do so."
He accepted there was public interest in investigating drink-driving incidents and catching drink drivers. But he said public interest did not override or outweigh the reasonable expectation of privacy "particularly if it is to be expressed at the whim of a police officer with absolutely no grounds for a belief, let alone a suspicion, that a motorist has been driving with excess alcohol in his breath".
Taffs blew 80mcg over the 400mcg breath-alcohol limit after constables Don Abbey and Greg Sherie followed his Landrover up his driveway on August 19 last year. Taffs' lawyer Pip Hall argued in the Greymouth District Court last month that police had no right to follow Taffs on to his private property.
Mr Hall said the constable had been operating under "implied licence", which entitles everyone to enter private property to knock on the door and make an inquiry of the homeowner.
Mr Hall submitted that police had not wanted to make inquiries of the homeowner - they had not even gone to the door - and therefore all dealings with Taffs were illegal.
Police had subsequently chatted to Taffs when they should have allowed him 10 minutes' reflection to decide whether he should opt for a blood test, Mr Hall said.
Judge Behrens ruled Taffs had adequate time and opportunity to consider a blood test, and had made up his mind early on he wouldn't have one.
However, he said the two constables had no right to follow Taffs onto his property to breath-test him.
Police contended Taffs had failed to stop for the police car's flashing lights, but Judge Behrens said there was no evidence Taffs saw the lights before he turned into his driveway. Nor did he accept Taffs was driving "awfully slowly", as Mr Sherie had alleged.
He believed Taffs was genuinely surprised to see the officers in his driveway.
"The inference I draw is that Constable Sherie was intent on beginning breath testing procedures because the decision to do so had been made before he entered on to Mr Taffs' property. He did not consider whether he could go onto the property or not.
"I found him to be a combative and argumentative witness."
On the balance of probabilities, the evidence was improperly obtained, the judge said.
Taffs said today the verdict was "a timely reminder of the police powers of search and entry on to people's property".
He declined to comment on how a guilty verdict might have affected his career.
Taffs has historic drink-drive convictions from 1981 and 1993.
When he was caught for the third time in March last year he tried to foil the breath-testing procedure by stuffing coins in his mouth.
The ploy failed and he subsequently admitted charges of driving with excess blood alcohol, failing to remain for an evidential breath test and obstructing police.
He was convicted and fined $4000 and lost his licence for 13 months.
- The Westport News