By NICHOLA LOBBAN nichola.lobban@wanganuichronicle.co.nz
AN ALLEGED Bill of Rights breach formed the basis of a Wanganui defence lawyer's attempt to overturn a conviction for drink driving yesterday.
On October 25, Cristen Peter Brosnahan, 54, was fined $850 and disqualified from driving for six months, after he was convicted by Chief District Court
Judge Russell Johnson for driving with a blood alcohol count more than twice the legal limit.
In August, Brosnahan had opposed the charge at a defended hearing, on grounds his Bill of Rights were breached during the EBA (excess blood alcohol) process as he was denied the right to speak to his lawyer.
This made the blood alcohol reading of 171mg per 100 millilitres of blood. "inadmissible", he said.
Yesterday in an appeal of that conviction, defence counsel Lance Rowe reiterated to Justice Mark Cooper in the High Court at Wanganui that Brosnahan's rights were breached by police because they had not allowed him to call his lawyer when he asked a second time.
This meant he lost the chance to get important advice from his lawyer about the police procedure and the test. "The reason it was important to ring a lawyer at that stage and not prior to giving blood was that there was no going back," Mr Rowe said.
Blood alcohol readings were usually higher than breath readings and the breach in procedure meant he did not get the breath test, which would effectively serve as a second opinion.
Crown Prosecutor Kieran Raftery said any procedural mistakes were quickly corrected and police had gone out of their way to give him access to his lawyer.
Brosnahan's right to speak to a lawyer had been met and he did not state why he wished to make a second call within minutes of the first. The right for subsequent calls was not absolute and any breach had no impact on evidence obtained from the blood screening stage, which had not been questioned.
Mr Rowe responded that a person's right to talk to a lawyer and the EBA process were continuous and did not switch on and off.
Justice Cooper reserved his decision yesterday.
