A man who was breath tested nearly two hours after crashing his car has had his drink driving conviction set aside.

Justice Ailsa Duffy also found the officer did not have consent to be in the man's residence and thereby the breath test he carried out was unlawful.

In her decision she also noted that there was an "implicit power dynamic" between police and members of the public who don't often know their rights when it comes to being arrested.

Arriving home to Rannoch House, a residence and gallery for New Zealand modern art, about 1am on January 11, 2016, Lee Torres Calderon had a minor collision with a rock wall outside the home in Epsom.


He suffered a sore knee but walked into the home complaining about the pain so another resident called St John Ambulance.

A police constable arrived at the property about 90 minutes later and walked into the home with one of the St John paramedics.

Prior to emergency services arriving, another Rannoch House resident gave Torres Calderon a large glass of red wine.

When the officer walked into Torres-Calderon's bedroom and discovered that he had consumed alcohol before driving home, the officer asked him to undergo a breath screening test. He was told if he didn't do the test he would be arrested.

After failing the initial test he was taken to a police station where he blew 534mcg, more than twice the legal limit of 250mcg.

Torres-Calderon was found guilty at a trial in the district court and convicted and fined $650 and court costs of $130. His driving licence was disqualified for six months.

An application for discharge without conviction was also dismissed by the judge despite the conviction likely to jeopardise Torres-Calderon's visa to remain in New Zealand. He was also still reeling from the sudden death of his former partner.

However, Justice Duffy did not agree with Judge Sharp's findings.


She was surprised the extra glass of wine consumed by Torres-Calderon after arriving home was not taken into account by the judge, as there was no evidence to say how much of the alcohol registered on his breath was affected by the wine.

"One could not otherwise be sure the excess breath alcohol limit was caused by
the alcohol that was consumed before Mr Torres-Calderon drove the vehicle.

"I consider the unchallenged evidence of the innocent consumption of a large glass of red wine in the home after the driving occasion is another factor that makes the application of the implied licence doctrine unreasonable in this case.

"This is particularly so because there is no evidence to suggest that even without the subsequent consumption of alcohol Mr Torres-Calderon would still have been over the legal adult limit."

Torres-Calderon was also unaware that he did not have to legally allow the officer into his home and refuse the breath test, which took place in his bedroom.

"Accordingly, I find that Mr Torres-Calderon did not impliedly consent to [the officer] remaining in the bedroom, and subsequently administering the passive breath test and the breath screening test.

"Absent such consent the administration of the test was unlawful, which in turn undermines the legitimacy of the later steps of the breath testing regime. Accordingly, the breath tests results on which Mr Torres-Calderon's conviction rests were unlawfully obtained."

She went on to explain how there was an "implicit power dynamic" between police and the public in that "many ordinary citizens do not necessarily know the extent of their legal rights and obligations".

"The law of implied licence to enter private properties to make enquiries typically stops at the entrance to private premises."

Many people would feel compelled to consent to the breath test especially if the officer was "acting in a way that gives the appearance he is entitled to be there".

"Many citizens may not know they can demand the officer leave at once, and if she does not do so she will then be a trespasser. In the present case Mr Torres-Calderon displayed an initial reluctance to undergo the passive breath test and was told he would be arrested if he did not complete the test. In such circumstances, his later compliance is understandable."

Justice Duffy said Torres-Calderon had no idea that an officer would soon enter his home to carry out the breath test so it was obvious he was not trying to upset the result of that test.

"The appeal against conviction is allowed. The conviction entered against Mr Torres-Calderon in the District Court for driving with an excess breath alcohol limit is set aside."