Robert Jones
The lawyer for a 61-year-old Masterton dentist found guilty of drink-driving says his client's drinks were spiked with extra alcohol the night he crashed his car on a Castlepoint road and had to be airlifted to hospital.
Robert Watcyn Jones was found guilty of drink-driving by Judge Jan Kelly after a defended hearing in Masterton District Court this week.
After the decision, Jones' co-defence lawyer, Roderick Mulgan, asked Judge Kelly not to convict Jones as he would be making an application for a discharge without conviction as Jones' drinks had been spiked. He said he would be providing evidence by affidavit from a witness.
Two expert witnesses gave evidence for both the prosecution and defence about the level of alcohol in Jones' blood sample.
Police prosecutor Sergeant Jodie Lawrence said at about 2am on September 1 last year Jones was involved in a "serious" crash near Castlepoint.
"He was avoiding sheep on the road and lost control, rolling his vehicle down a hill. He was flung from the car, injuring himself," she said.
Flown to Wellington Hospital, a blood sample was taken which provided a blood alcohol reading of 88mg, Ms Lawrence said. The legal limit for an adult driver is 80mg.
ESR scientist Samantha Coward gave evidence stating she received the blood sample from the hospital and tested it on September 3, providing an alcohol reading of 94mg per 100 millilitres of blood.
To take into account any "variables", they took six points of the reading rounding down the alcohol content in the blood, providing an end result of 88mg. From January 1 this year, the six points of alcohol are not taken off.
Regular testing of storage samples over time shows with deterioration the alcohol in the sample lessens, sometimes providing a lower reading of up to 11 points or more, Ms Coward said in evidence.
"Data over time shows alcohol is lost ... in the first few weeks, the greater the loss. We don't know what the cause is," she said.
Jones was charged on November 20 with his Masterton lawyer, Jock Blathwayt, making an application a month later for a sample of the blood taken from Jones to be privately analysed.
The sample arrived at Lab Plus on February 5 and was tested on February 10 by scientist Hima Madhavaram who provided evidence that the alcohol content in Jones' blood was lower, at 79mg. This test was run five months and one week after the sample was taken from Jones.
Ms Madhavaram said in evidence it was possible the sample could have lost some alcohol content.
She could not say how the sample was stored from when it left ESR on January 14 to when it arrived for testing at Lab Plus.
Mr Mulgan submitted the evidence presented showed reasonable doubt.
He said the variation between the two results was "extreme" raising doubt.
"The law does not have to decide which is right, the issue is this; doubt. That it might be likely is not enough," he said.
Judge Kelly said the application made for the blood sample to be independently tested had been made out of time but Mr Mulgan disagreed.
"If police chose to give it up then the wheels continue to turn," he said.
Judge Kelly said Ms Coward had given evidence showing it was a well-known "phenomenon" that blood alcohol concentrations were not stable when stored.
She accepted while there was no explanation for the phenomenon there was "natural deterioration over time".
"I'm satisfied the loss was in the expected range ... I am sure that the proportion of alcohol in the sample taken from Mr Jones exceeded 80mgs," she said. "The charge is proven on the evidence."
Jones was remanded at large to reappear in the Porirua District Court on January 13 for sentencing. Papers relating to a 106 discharge without conviction must be filed with the court before Christmas.