By JO-MARIE BROWN
The outcome of 550 drink-driving cases stalled in courts nationwide hinges on a Court of Appeal hearing today to decide whether police must reveal details of a breath-testing device.
Hundreds of cases - 200 of which are backlogged in the Auckland District Court alone - have been adjourned over the past year while defence lawyers wait to see whether police are forced to hand over the manual for the Intoxilyzer 5000.
Lawyers believe the reliability of some breath-alcohol readings could be challenged if they knew how the device was supposed to be maintained and calibrated by the Institute of Environmental Science and Research (ESR) on behalf of police.
Both district courts and the High Court have ordered that the manual be handed to defence lawyers. But police will argue in the Appeal Court that it should be kept secret.
Police national road safety manager Superintendent Steve Fitzgerald believes the Intoxilyzer 5000 - one of two devices used for evidential breath tests if motorists fail roadside screening - is extremely reliable.
But an electro-mechanical expert, who has examined maintenance records for half of the 100 Intoxilyzers used here, is convinced some are not functioning properly.
John Churchill believes at least five Intoxilyzer 5000s have displayed faults since arriving from the United States over the past 12 years.
"It's my view that if you're going to use a Machine to produce forensic evidence that is going to deprive a person of their livelihood or their liberty or may simply just take away their mobility, then no fault is acceptable," he said.
Another 10 devices had caused Mr Churchill concern but the release of the manual could provide satisfactory answers, he said.
"Not all of the things I see are necessarily going to be major problems but that can't be clarified without access to the information."
The Intoxilyzer 5000's manual contains the manufacturer's instructions on how often the device should be checked by the ESR.
Mr Churchill said it also defined the acceptable performance variations, and gave information that would confirm whether they were being correctly maintained.
The battle for access to the manual began in October 1999 when Jeremy Brown, a 33-year-old contractor from Bucklands Beach, recorded 1157 micrograms of alcohol per litre of breath on an Intoxilyzer - almost triple the legal limit of 400 micrograms.
His lawyer, Chris Reid, sought the manual in the Otahuhu District Court because Mr Churchill had examined the device's maintenance and repair records and believed it was faulty.
While Mr Brown was described by the policeman who stopped him as being "so drunk he could hardly stand," Mr Reid pursued his request for the manual so the Intoxilyzer 5000's reliability could be assessed.
The manufacturer argued that disclosing the manual would reveal trade secrets which would jeopardise the Intoxilyzer's position in the marketplace.
In addition, the ESR, which has exclusive access to the manual, said it would not provide any information about the device's performance on a particular day.
Judge Josephine Bouchier disagreed but her decision was appealed to the High Court last November, and subsequently to the Court of Appeal, which hears the case today.
Because of the continuing legal argument over the manual, lawyers wanting to mount a similar defence for their clients have had about 550 drink-drive cases adjourned in the past year.
Mr Fitzgerald said about 25,000 drink-drivers were prosecuted each year and only those who could legitimately mount such a defence were waiting for the latest appeal's outcome.
Mr Reid believes the ESR and police should hand over the manual so those caught for drink-driving in future can assess whether their breath-alcohol reading is correct.
"They will be able to go into court equally armed with the police in terms of their defence."
But the Intoxilyzer's distributor, John Conyers-Brown, insists that defence lawyers already have access to all the information they need.
The device immediately stopped working if there was a fault, he said.
"They are well looked after by the ESR. They check them out regularly and give them a warrant of fitness.
"In other words, they are working." said Mr Conyers-Brown.
"I would very much doubt that Mr Churchill will be able to prove that they are no good."
Drink-drive cases hang on court
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