By Anna Longdill

Successful appeal against conviction for driving with excess breath alcohol – New Zealand Bill of Rights Act 1990, s 23 (1)(b) – right to consult a lawyer in private  – exclusion of evidential breath test result – miscarriage of justice

Lawrance v Police [2025] NZHC 277 per Blanchard J

On the evening of Saturday 22 June 2024, a police officer stopped Zebulon Lawrance as he was driving home from drinks with friends. Lawrance failed a breath screening test and was required to undergo an evidential breath test in the patrol car.

Prior to the evidential breath test, Lawrance asked to speak to a lawyer. He wanted to speak to his own lawyer but was not able to.  Instead, he spoke to a lawyer on the Police Detention Legal Assistance list.

This conversation took place in the back of the patrol car. The police officer sat next to Lawrance for the duration of the call.

The evidential breath test was then undertaken. Lawrance’s result was more than twice the legal limit. The police officer told Lawrance he was able to elect a blood test. Lawrance made a further call to the lawyer. Again, the officer sat in the back of the patrol car during the call.

Lawrance did not elect a blood test. He was later charged with driving with excess breath alcohol. A legal aid-assigned lawyer advised him that he had no defence to the charge and to plead guilty. He did so and was convicted and sentenced accordingly.

Lawrance appealed against his conviction on the grounds that he had a defence available to him at the time of his plea, but he was not advised of that defence.

The key issue raised was that he was not provided the opportunity to consult a lawyer in private due to the presence of the police officer in the back of the patrol car.

The police officer swore an affidavit for the appeal explaining why he remained in the vehicle.  Although Lawrance had his own phone, for reasons which were unclear the calls to the lawyer were made on the officer’s phone. The officer said he was concerned about the security risk of Lawrance using the phone to access secure police applications. He also said he was not able to monitor Lawrance’s use of the phone from outside the car because it was dark and standing on the particular road (well known for speeding) would have been a safety risk.

Applicable principles: Criminal Procedure Act 2011, s 232; New Zealand Bill of Rights Act 1990, s 23(1)(b); Evidence Act 2006, s 30 – miscarriage of justice following a guilty plea? (if incorrect legal advice causes defendant to plead guilty under mistaken belief that no tenable defence existed, this can result in a miscarriage of justice) – was the right to a lawyer in s 23(1)(b) Bill of Rights breached? (yes, the right implies a requirement that it be exercised in private. Only limited exceptions to this, eg, a realistic prospect of criminal conduct if the suspect is left unsupervised. This situation did not justify a departure from the general position that a consultation with a lawyer should be conducted in private: Lawrance could have used his own phone, there was no indication that he might misbehave and it must have been possible for the officer to monitor him from outside the vehicle)  – should the evidential breath test result be excluded under s 30 Evidence Act 2006? (yes, the right is important and foundational to a defendant’s other rights, the Police EBA procedure sheet (requiring officers to ask drivers whether they would like to speak to a lawyer on three occasions) confirms right to a lawyer is central to EBA process working properly, the offence of driving with excess breath alcohol is critical to road safety but not overly serious compared to all other offences)

Held: The appeal is allowed.  Lawrance’s conviction is quashed. An acquittal is substituted.

Note: Lawrance also raised another ground of appeal – that he was denied an effective opportunity to elect blood, because he understood that he was required to travel approximately two hours to Rotorua if he wanted a blood test. There was a conflict of evidence on this point. Given the court’s conclusion on the Bill of Rights issue, it was not necessary for this ground to be considered.

ZEBULON CHARLES EVELEIGH LAWRANCE v NEW ZEALAND POLICE – BC202560317 (1)