So, a rozza enters my home...

[Skyryder]

Its perfectly clear if you read and understand all of the relevant legislation, which is what some of the cops involved should also be brushing up on.

This. Don't see any clear explanation of the law in this thread from yourself in respect to breath testing in the home.

Skyryder

[spudchucka]

This. Don't see any clear explanation of the law in this thread from yourself in respect to breath testing in the home.

Skyryder

There's a real big hint as to what the problem here is in post #88. You're a smart guy and can figure the rest out for yourself.

[spudchucka]

thats not morality.
the law was intended to protect people from each other, not themselves

I think we are on totally different wavelengths here.

[Skyryder]

There's a real big hint as to what the problem here is in post #88. You're a smart guy and can figure the rest out for yourself.

The original post was about a copper entering the bedroom of a private dwelling and asking for a breath test. It was not about the right to enter property and the reasons for.

The general comments and I include myself in this is that the police had every right to ask for the test. This tended to be the general comments other than from those who knew the law better than both you and I. No where in this thread have you stated that the police 'do' not have this right This does bring up an interesting point. Tri Boy in his post states that the officer was a ‘newbie’ and left after his refusal to comply with the test. From this, it is not unreasonable to assume, that said ‘newbie’ was aware that Tri Boy was well within his rights to refuse. If I am correct I will not delve deeper into the ramifications of what this may represent with the culture of the NZ Police.

I will however state quote categorically that I believe that those officers here on KB made a genuine mistake in believing that Joe public is required to give a breath test in the home.

Perhaps there is a case for a law change, on that score I would have no qualms. If this breath testing in the home had have been lawfull it would after all have removed one hypocritical cop from the force.

Skyryder

[Ixion]

I have read with care both Mr Spudchucka's excerpt of the legislation and the legislation itself.

As I would interpret it (IANAL - but since in this matter police and lawyers seem unable to agree or provide a clear statement , we are needs be thrown back on our own resources) :

1) If a cop is pursuing someone he may enter private property and demand a breath test. So if the five-oh are after you with reds and blues, diving into your back door isn't going to get you off the hook. (Clause 1b "Is freshly pursuing that person.").

2) If a cop has reasonable grounds to believe that a person (emphasis mine) " or is, or has recently been, driving under the influence of drink or a drug, or both" (Clause 1aii)

Both these clauses are subject to the test of fact. A pursuit must be that : a pursuit. It is not enough for the cop to say "Oh, well , I drove up the same road as the suspect, but in the opposite direction, and 10 minutes later, when he was stopped and parked ". That's not a pursuit in my book.

And for 2) to apply, the cop must be able to identify "a person". If the police see me driving erratically and wildly, whilst swigging from my can of Bourbon, and they get a good look at me and see me go onto my house, they may follow me on in. But they need to be looking for a specific person. Not throw everybody and anybody in the vicinity into the net.The police are not able to say "Oh , we had a report that someone, dunno who, might have been drink driving (or might not). We don't know who the person was, or if they were drunk, so what we'll do is force our way into every house in the district and breath test everybody we find and if anyone fails, we've got our man".

[Skyryder]

Ixion. Open the link on my post #177. The lawyer states very clearly that the police officer was within his rights to refuse the breath test. OK it's media but unless someone can show me an opposite opinion from a legal source I'll hold my view that a breath test can be refused in your private dwelling. Said officer was insistant that he was not going to be breath tested. He was not arrested for refusal. So I'm picking he knew his rights. Now I may be wrong in all of this but I have yet to hear of an officer backing down when they have the law to back up their insistance that Joe public carries out a police officers instructions.

And you are right they can not go on a fishingtrip.

Skyryder

[spudchucka]

The original post was about a copper entering the bedroom of a private dwelling and asking for a breath test. It was not about the right to enter property and the reasons for.

Skyryder

Of course it is about the right to enter the property, without that right no other process can be lawfully completed.

The cop needs to be freshly pursuing the subject onto the property or have reasonable grounds to believe , (not suspect, he must believe) that a person in that address has committed an offence against the prescribed sections of the Act. Both cases appear to neither meet the fresh pursuit or the reasonable grounds for belief criteria, hence the cop could not lawfully enter the property under the provisions of section 119 and would have had to leave the property when asked as they had no statutory power under which they had any right to stay or to carry out any other process under the Act, (ie: a breath test).

[tri boy]

The young rozza in my case did indeed mention that I could be arrested for failing to comply with his request. (i am not sure if that is totally correct).
But the reason he finally left, was because when I asked him if he could honestly identify me as the driver, he couldn't come up with a suitable response.
I guess each individual situation the coppa's have to deal with throws up legal arguments further down the track.
I think they are doing a bloody good job most of the time, and having to stay on top of ever changing laws of the land, would be enough to cause some officers to strip naked, and charge after offenders in the middle of the night. Such must be their level of frustration and cynical approach to joe public.

[spudchucka]

I have read with care both Mr Spudchucka's excerpt of the legislation and the legislation itself.

As I would interpret it (IANAL - but since in this matter police and lawyers seem unable to agree or provide a clear statement , we are needs be thrown back on our own resources) :

1) If a cop is pursuing someone he may enter private property and demand a breath test. So if the five-oh are after you with reds and blues, diving into your back door isn't going to get you off the hook. (Clause 1b "Is freshly pursuing that person.").

2) If a cop has reasonable grounds to believe that a person (emphasis mine) " or is, or has recently been, driving under the influence of drink or a drug, or both" (Clause 1aii)

Both these clauses are subject to the test of fact. A pursuit must be that : a pursuit. It is not enough for the cop to say "Oh, well , I drove up the same road as the suspect, but in the opposite direction, and 10 minutes later, when he was stopped and parked ". That's not a pursuit in my book.

And for 2) to apply, the cop must be able to identify "a person". If the police see me driving erratically and wildly, whilst swigging from my can of Bourbon, and they get a good look at me and see me go onto my house, they may follow me on in. But they need to be looking for a specific person. Not throw everybody and anybody in the vicinity into the net.The police are not able to say "Oh , we had a report that someone, dunno who, might have been drink driving (or might not). We don't know who the person was, or if they were drunk, so what we'll do is force our way into every house in the district and breath test everybody we find and if anyone fails, we've got our man".

Finally, someone seems to get it.

[marty]

The young rozza in my case did indeed mention that I could be arrested for failing to comply with his request. (i am not sure if that is totally correct).

he was correct, although there is no charge for failing to supply a screening test, it is simply to allow proceeding to the next step, which is the evidential test. refusing evidential or blood though WILL attract a charge.

But the reason he finally left, was because when I asked him if he could honestly identify me as the driver, he couldn't come up with a suitable response.

as he should have (left i mean)

i'm picking he was testing your ability to say 'wasn't me officer'. if you said 'yes i was the driver', you've just dug your hole.

[scumdog]

I think they are doing a bloody good job most of the time, and having to stay on top of ever changing laws of the land, would be enough to cause some officers to strip naked, and charge after offenders in the middle of the night. Such must be their level of frustration and cynical approach to joe public.

Hey, I resemble that description ya know...

[Ixion]

Ixion. Open the link on my post #177. The lawyer states very clearly that the police officer was within his rights to refuse the breath test. OK it's media but unless someone can show me an opposite opinion from a legal source I'll hold my view that a breath test can be refused in your private dwelling. Said officer was insistant that he was not going to be breath tested. He was not arrested for refusal. So I'm picking he knew his rights. Now I may be wrong in all of this but I have yet to hear of an officer backing down when they have the law to back up their insistance that Joe public carries out a police officers instructions.

And you are right they can not go on a fishingtrip.

Skyryder

Yes. I'm agreeing with you. In the case cited in the press , there was no pursuit. The cop turned up 20 minute slater.

And since he (the cop) never saw the alleged drink driver he could not honestly say that he had grounds for believing that the person who answered the door had been drinking and driving. So, the householder was within his rights to say , no, bugger off.

Which is pretty much what my understanding was all along. Until various people started arguing to the contrary.

Logically what would be the point of a breath test administered 20 minutes after driving anyway ?" Oh, well, I did drive home after a couple of drinks at the bar. But at that point I believe I was well under the legal limit. And you can't prove otherwise. Since I got home, I've had another 16 double double whisky. So I will be well over the limit now. But I'm not driving now, am I.

[Winston001]

Logically what would be the point of a breath test administered 20 minutes after driving anyway ?" Oh, well, I did drive home after a couple of drinks at the bar. But at that point I believe I was well under the legal limit. And you can't prove otherwise. Since I got home, I've had another 16 double double whisky. So I will be well over the limit now. But I'm not driving now, am I.

I'm afraid Parliament is way ahead of you Ix - the law specifically says that the breath/blood level at the time of test is deemed to be the level you were driving with. Even if its an hour afterwards and you've had copious nerve-calming libations. Indeed I've represented a guy who did a runner through some paddocks and when he got home, piled into the whiskey only to then open the door to officers who were still in pursuit of him. Dogs and all. Bugger. No defence.

[scumdog]

I'm afraid Parliament is way ahead of you Ix - the law specifically says that the breath/blood level at the time of test is deemed to be the level you were driving with. Even if its an hour afterwards and you've had copious nerve-calming libations. Indeed I've represented a guy who did a runner through some paddocks and when he got home, piled into the whiskey only to then open the door to officers who were still in pursuit of him. Dogs and all. Bugger. No defence.

Ooooo, I bet a lot of you never saw THAT coming , did you??

But all the KB bushlawyers did eh.....pffft!!

[Winston001]

The doctrine of "fresh pursuit" is English and been around in the common law for decades. The LTA codification is just to put it on a statutory footing. You are always able to argue in court that the officer was not in fresh pursuit and if the judge agrees, the prosecution will fail. Every case will depend upon the individual facts.

As for the original poster, it's a 50/50 call as to whether this was legitimate fresh pursuit. Drivers do dive up entranceways to avoid traffic stops. However identifying the driver is a problem and the police usually rely on people admitting it. You'd be surprised how often people admit stuff.