A drink-driver has tried to get his conviction quashed because a police officer sat with him in a patrol car while he was deciding whether to have a blood test.

Simon Luke Wood was convicted on one charge of drink-driving when he went before Judge James Johnston in the Wellington District Court in May.

He had blown an evidential breath test of 533 micrograms of alcohol per litre of breath when stopped in Berhampore late one afternoon in May last year. The legal driving limit is 250.

He appealed his conviction unsuccessfully on a single ground, claiming the police did not give him 10 minutes of uninterrupted time to decide whether to take an evidential blood test.

He said the presence of the constable with him in a police car while he was making up his mind was “intrusive, a distraction, and served to impede rational and free decision-making”, according to a newly released court decision.

People who fail an evidential breath test can elect to have a blood test, the results of which will override the breath test.

Under the Land Transport Act, the suspect must elect to have the blood test within 10 minutes of being advised they have failed an evidential breath test.

Case law has described the 10-minute timeframe as providing an opportunity for reflection, in which the suspect has “a reasonable and uncluttered period” to consider whether to elect the blood test.

Court documents say that after failing his evidential breath test, Wood sat in the back of a patrol car alongside a police officer.

Wood sat in the back seat on the passenger side, and the constable gave evidence that he sat on the driver’s side, remaining silent for the whole period.

Wood claimed that during that time, another police officer knocked on the window and exchanged words with the seated constable about “going back to base” for about 30 seconds, and this was a “distraction”.

Judge Johnston, however, concluded that the conversation did not happen and, even if it had, it would not have taken Wood’s attention away from thinking about the blood test, as the subject matter did not involve him.

The judge added, however, such an occurrence might sometimes interrupt or interfere with the 10-minute thinking period.

He listed radios going off, officers conversing in the front seat, or police detaining another person as things which might “give rise to a disruption” and create a risk of unfairness or injustice.

That, however, had not been the case in this instance.

The judge also said that holding of the procedure in the back of a patrol vehicle in the presence of the constable had not disturbed Wood’s election period.

Wood appealed his conviction to the High Court, where his lawyer argued that the “mere presence” of the constable was intrusive and distracting.

The High Court decision by Justice Christine Gordon does not specify whether Wood opted for a blood test or not, but the legislation says that once a blood test is taken, a breath test result becomes inadmissible. Wood was charged with having excess breath alcohol.

The High Court heard about other cases, including one in which a driver taken to a police station was questioned by another officer part-way through his 10 minutes of thinking time, and of another whose time was cut short at just over nine minutes.

Both got off.

In Wood’s case, Justice Gordon said the 10-minute period had been “designed to ensure that a suspect has a reasonable and uncluttered period of time” in which to consider whether to progress to the blood test.

She said the essence of Wood’s case was whether the mere presence of a silent constable in the back of a patrol was sufficient to interrupt the 10 minutes.

“I do not accept that submission,” Justice Gordon said.

“In short, Mr Wood had a silent and uninterrupted 10-minute period to consider whether to elect to have a blood test.

“The fact that he was seated in the rear of a patrol vehicle with a police officer, who remained silent, did not interrupt the 10-minute period,” Justice Gordon said.

Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.