A Wanganui defence lawyer who fought a drink-driving conviction on grounds he was refused legal access when a police officer changed the wording of her instructions to take a breath test has lost his appeal.
The Court of Appeal has dismissed Cristen Peter Brosnahan's case and upheld a drink-driving conviction, saying the decision hinged on common sense rather than a matter of legal principle.
Brosnahan was initially disqualified from driving for six months and fined $850 after he was convicted in Wanganui District Court in 2007 for driving with a blood alcohol count more than twice the legal limit.
When police initially processed Brosnahan for drink-driving he rang his lawyer from the police station.
When being processed the police constable initially said "I instruct you to undergo an evidential breath test", but before Brosnahan could reply a senior officer made her say the statement again but this time using the word "require" instead of "instruct".
Brosnahan asked to speak to his lawyer again but his request was refused.
He took the conviction to the High Court, which gave him leave to go to the Court of Appeal over legal matters he had raised.
But the Court of Appeal, in a decision released last week, rejected the argument that using "require" rather than "instruct" was so significant that further legal advice was needed.
The court found a suspect could get a second call to a lawyer if there was a material change in circumstances and that the suspect needed to explain the need for a second call.
But the court said that in Brosnahan's case the police did not have to give him a second call to his lawyer.
