A man who did a U-turn approaching a police checkpoint after drinking three glasses of wine and blew positive on a breathalyser has successfully appealed his conviction, saying he was denied a blood test and that the officer wanted to finish his shift as he was hungry.

Following an appeal, Md Zakaria Wahed, 48, had his drink-driving conviction and sentence quashed in the High Court of New Zealand this month.

In a judgment dated March 6 and released March 23, Justice Palmer agreed that there had been a 'miscarriage of justice” in Wahed's trial in the Tauranga District Court in April last year.

At that trial, Wahed had been found guilty of driving with excess breath alcohol, over the 400-microgram limit, under s 56 of the Land Transport Act 1998.

He was disqualified from driving for six months and fined $600.

In the trial, the court heard that Wahed had made a U-turn approaching a police alcohol breath testing checkpoint in Pāpāmoa, Tauranga in May 2021. He admitted to having drunk three glasses of red wine with dinner, three hours beforehand.

He failed a breath test and was taken to the 'booze bus” for an evidential breath test. That test showed he had 493 micrograms of alcohol per litre of breath, over the 400-microgram legal limit for driving.

After a positive evidential breath test exceeding 400 micrograms of alcohol per litre of breath, a person has the right, within 10 minutes, to elect to have a blood test.

Wahed adamantly maintained that he wanted a blood test, for an accurate recording of his blood-alcohol level, but said that was declined because the officer, Constable Hannah, 'was hungry and wanted to go home”.

Constable Hannah said that there was no request for blood.

In the appeal, police counsel argued that there were questions posed about the allegation the Constable was tired and hungry, but the matter was not put to Constable Hannah simply and there was no reason to put weight on that evidence. Police council reaffirmed that Wahed did not request a blood test within the 10-minute timeframe.

Wahed's counsel argued that Wahed had difficulties in English and had asked a question about a blood test which should have been understood as a request.

In considering the appeal, Justice Palmer said that 'the freewheeling nature of the questioning at trial, and the difficulty in understanding Mr Wahed's somewhat elliptical responses, would have made it difficult for the trial judge to evaluate the evidence during the trial”.

In analysing a transcript of events, Justice Palmer concluded that Wahed was fixated on getting a blood test, and had made an early request for one accompanying the officer to the booze bus, but that 'he clearly did not understand the purpose of the 10-minute period. As far as he was concerned, he was waiting for his blood test”.

Justice Palmer chose to quash the conviction and sentence rather than ordering a retrial.

'While drink-driving is serious, the alleged offending here was relatively minor and occurred 21 months ago. There is a lengthy backlog of matters in the District Court to deal with. It is not in the interests of justice to order a retrial.”

The judge also said Wahed 'needs to be more careful about drinking and driving.”

-Annemarie Quill/Stuff.