Riley James Keen, 26, was discharged by Queenstown District Court judge Bernadette Farnan back in November.
Farnan determined rookie constable Claire Frooms, processing her first drink-drive case, hadn’t followed correct procedures.
Southland man Keen had been stopped on Kawarau Road at 2.30am on September 29.
After a positive breath test, Keen chose to have a blood test - which returned a reading almost twice the legal limit.
Lawyer Bill Dawkins argued the decision to take the test didn’t come within the statutory 10-minute window allowed for the decision.
Instead, he made the decision before the 10 minutes started, ruling out the “relevant statutory period of reflection”.
Farnan agreed and the test was declared invalid.
But justice Rachel Dunningham says the determination is wrong.
Dunningham, in a February 29 judgment, says Farnan focused on the wrong point for the commencement of the window - Frooms marking paperwork rather than when she informed Keen.
And, crucially, Farnan failed to consider if the ‘error’ actually prejudiced Keen.
Dunningham says the ‘error’ had no bearing on the correctness of the result.
She says it’s important to distinguish the case from others where a defendant was denied the opportunity for a blood test.
“In such cases, there is potential prejudice to the defendant in holding him or her to the outcome of the evidential breath test.”
Keen got the benefit of that safeguard, she says, adding: “He cannot now complain that he is ‘fixed with the positive result of that blood test’.”
Dunningham says she can see no evidence Farnan gave consideration to prejudice and can identify no evidence of prejudice.
The charge of driving with excess blood is reinstated and has been sent back to the district court.