Brian Edwards Media

The Dangers of Discretion (Based on a Shameful True Story)

Photo: Dean Purcell

Photo: Dean Purcell

I was recently stopped at a police checkpoint in Ponsonby and breath-tested. I’d had a couple of glasses of wine with a meal and a small brandy with my coffee to follow. I didn’t expect to be over the limit or anywhere near the limit. And indeed I wasn’t.

If an experience I had many years ago, when we were somewhat less scrupulous about drinking and driving, is anything to go by, I could have had a great deal more to drink and still been under the limit.  

I’d had a rather fine dinner at Valerio’s in Parnell and been shouted to several grappa after the meal by our generous host. I was pissed as a newt. I would have asked Judy to drive, but she was  equally merry. It was 2am.

Halfway down Parnell Rise I was pulled over by a cop car. The cop asked me to step out of the vehicle onto the road, where I nervously and unsteadily blew into the breathalyser.  I knew I was a goner. I was on Top of the Morning at the time, and could look forward to my picture appearing on the front page of the Herald – RADIO HOST ON DRUNK DRIVING CHARGE.

‘That’s fine, sir,’ the cop said, ‘Have a nice evening.’

I couldn’t believe it. I have absolutely no doubt that I was unfit to drive, yet I was apparently under the limit. There’s was something wrong there. There still is.

What is wrong is the concept of having a limit at all. Because a limit allows the motorist to exercise his discretion as to whether he has had too much to drink to allow him to drive safely. He has to make a judgement. But the very fact that he has been drinking means that his judgement is impaired.

There are a number of areas where discretion is a dangerous thing. Allowing motorists to make up their own minds at what point they’ve had enough to drink is one.

Discretion in the enforcement of speed limits is another. It appears to be common knowledge that you can add at least 10% to the legal speed limit and not expect to be stopped or get a ticket. This means that the actual speed limit is 55K or 110K with many motorists using their discretion to round the figures up to ‘under 60′ in town or ‘under 120′ on the open road.

The corporal punishment of children is a third area. Section 59 of the Crimes Act allowed parents the discretion to decide what constituted ‘reasonable force’ when disciplining their offspring, with disastrous results. The law was amended to say that you can’t hit your children at all, other than to protect them from harm.

Those who oppose the amendment want the government to reinstate the parents’ discretion to decide what constitutes ‘a smack’, which would  be legal, and anything more than a smack, which would  not.  If they are successful, doubt  about the corporal punishment of children will be introduced where there is now no doubt.

The law which says it is illegal in New Zealand to hit your children  provides an excellent model for sensible legislation on drink-driving and speeding:  It should be illegal to drink and drive; it should be illegal to exceed the speed limit at all – no ifs, no buts, no discretion, no doubt.

It is madness to allow motorists the discretion to decide whether they are fit to drive after drinking; it is madness to informally allow motorists the discretion to go faster than the legal speed limits. In both cases the result is mayhem.  

Let’s make it illegal to drink and drive. Let’s maKe it illegal to exceed the speed limit by 1K. Let’s keep it illegal to hit kids.  No ifs, no buts, no discretion, no doubt.

I know – ‘Nanny State’.  Get a better argument!

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31 Comments:

  1. your are getting old Brian, very doddery ideas .
    lets look at your arguments.

    1. “lets make it illegal to drink and drive”
    that means no alcohol at all in blood stream which means driving is prohibited to anyone who ever drinks at all.
    G0 home and stay there Edwards, do not drive at all.

    2. “Let’s make it illegal to exceed the speed limit by 1K”.
    Like how do you pass a car on the open highway E$mediawards unless you want to stay in the right hand lane for ten minutes.
    Go home Edwards stop driving at all.

    3. “The law which says it is illegal in New Zealand to hit your children provides an excellent model for sensible legislation on drink-driving and speeding”

    Good grief. Amazing similarity. too much age. thank God nobody takes you seriously anymore Brian.

    • your are getting old Brian, very doddery ideas .

      I’m not sure why I’m bothering to publish this abusive, ageist crap. Except that there may be value in exposing intellectual thugs like yourself. Why not find a blog site suitable to your limited mental capacity. There are plenty out there.

  2. I think the purpose of laws is to provide a tool for delivering justice. They are useful for settling disputes and righting wrongs. Where there is no argument, no victim, no harm, then I think it makes more sense to ignore the letter of the law than to pedantically insist on applying the law anyway. There’s nothing more frustrating than a “rules are rules” zealot insisting on applying laws where they make no sense, purely because, well, “rules are rules”.

    I cannot see any purpose in prosecuting someone for safely driving at 101 km/hr in ideal conditions. There is nothing magical about the speed limit, it’s an arbitrary number.

    Your other examples are different as the zero in zero tolerance is actually a magical number and isn’t arbitrary. But still your proposal doesn’t seem wise to me. Clearly the “false negative” example you report was an example of the current law not working correctly. A faulty breathalyser perhaps ? But imposing a zero alcohol limit to prevent a re-occurence of that incident is surely cracking a nut with a sledgehammer. For example, why should someone who never drinks more than one glass of wine, and who is not adversely affected at all, be banned from driving home ? How many hours should they be banned for ?

    My view is that the law should be drafted and applied in order to protect the innocent from inconsiderate, unscrupulous, dishonest, dangerous, or aggressive behaviour. It’s a tool that should be applied to those ends. I wouldn’t want to live in a country where it is applied without discretion (i.e. indiscriminately!) instead.

    • I think the purpose of laws is to provide a tool for delivering justice. They are useful for settling disputes and righting wrongs. Where there is no argument, no victim, no harm, then I think it makes more sense to ignore the letter of the law than to pedantically insist on applying the law anyway.

      This all sounds entirely reasonable. The problem arises when you build the discretion into the law, effectively creating a different law. This is de facto the case with speed limits. It is evident, and I have not heard the police deny this, that the real speed limits in New Zealand are ‘under 60′ and ‘under ‘110’. You are extremely unlikely to be stopped at these speeds unless you are showing some other sign of bad driving. This is a recipe for dangerous confusion and there is plenty of evidence that New Zealand motorists work on the basis that the de facto speed limits are the actual legal speed limits and add a their own discretionary extra K to that.

      As to drinking and driving, your argument seems to be that the incovenience suffered by some people in not being able to have a glass of wine at a function or having to take a taxi or nominating a designated driver or using a dial-a-driver service, shoud be given greater weight than the injuries and deaths caused by the combination of alcohol and driving. I disagree.

      On the smacking front, we have just seen the Prime Minsiter express your view that we need to be flexible in the interpretation of the law. He tells us that ‘there’s nothing wrong with a gentle smack’. This effectively brings us back to ‘reasonable force’ where the parent is given the job of interpreting the law to fit his/her own behaviour. I’d prefer to live in a country where the law simply states that it is illegal to hit children.

      My view in a nutshell is that laws should be precise and not open to various interpretations. I am not opposed to the exercise of discretion, but that should properly be the province of the police and the courts.

  3. BE: “I couldn’t believe it. I have absolutely no doubt that I was unfit to drive, yet I was apparently under the limit. There’s was something wrong there. There still is”.

    That being the case, you should’ve insisted on being re-tested. I mean, after all, you do pride yourself in having an acute sense of civic morality, obligation and responsibility, don’t you? Shouldn’t have let a faulty meter reading, or a less-than-alert cop, or one who granted you a surreptitious favour because he recognised who you were — militate against the correct outcome of your being pulled over. I missed your sense of outrage, here.

    • That being the case, you should’ve insisted on being re-tested.

      You seem to want me to progress from ‘an acute sense of civic morality’ to sainthood. I’m not there yet. And frankly, when you’re pissed as a newt, even your sense of civic morality goes out the window.

  4. 4

    Ianmac from Abu Dhabi

    Speed limits. Here in Abu Dhabi they often have signs saying speed limit 100kph. Then another sign saying Radar set for 120kph. On very fine 3/4 lane highways stretching for hundreds of Km we drive at 120kph. But we are often whooshed by overtakers usually travelling at about 150kph. Twice we were overtaken by cars travelling at about 200kph, calculated by me, time/distance to vanishing point.
    Poor old Helen would not rate a mention.

    • On very fine 3/4 lane highways stretching for hundreds of Km we drive at 120kph. But we are often whooshed by overtakers usually travelling at about 150kph.

      Interesting. And illustrates my point very nicely. When the de facto speed limit is higher than the legal speed limit, motorists add another 10 or 20K to that.

      Most of these arguments in favour of discretion involve throwing in the legal towel and giving up. The Australians find no difficult at all in keeping strictly to the speed limit and, as a result, arriving not merely safely at their destination but sooner.

  5. “As to drinking and driving, your argument seems to be that the inconvenience suffered by some people in not being able to have a glass of wine at a function or having to take a taxi or nominating a designated driver or using a dial-a-driver service, should be given greater weight than the injuries and deaths caused by the combination of alcohol and driving.”

    That is not my argument at all. My argument is that someone having a single glass of wine and then driving has no connection at all to the problem of injuries and death caused by impaired drivers. I am simply suggesting that the law focus on the actual problem.

    Throughout the S59 debate supporters of repeal of S59 have been at pains to assert that it’s not about smacking, it’s about giving children the same protection as adults, (and indeed animals!), under law. You focus on the comments of the present Prime Minister, but I can recall the previous incumbent, your preferred option I believe, making very similar noises. Of course this leaves a problem, is smacking against the law or is it not?

    You are now highlighting this same problem that those you profoundly oppose have been focussing on all along. Their solution: Change the law so that smacking is not an offence. Your solution: Police the law as written, smacking is an offence.

    I don’t know what the solution is, or indeed whether there is a real problem. I do know that there are huge numbers of ordinary New Zealanders who choose to smack their children occasionally as one of their disciplinary tools. These people would not be impressed if suddenly they were told, sorry we didn’t mean what we said, it’s not about beating, it is actually about smacking after all.

    As a contributor to the policy debate I fear you will be out on the same limb as Dr Brash found himself recently with his 2025 report. Your policy recommendation may well reflect best practice, (from a certain idealogical standpoint at least). But it is not politically acceptable, at least at this time.

    • That is not my argument at all.

      I rather think it is. What you want to do is legislate for responsible people. The vast majority of us don’t break any laws at all, but the laws have to be written for everybody. The problem here is alcohol. After even one drink your judgment as a driver and in general is impaired. In making drinking and driving illegal we can remove the uncertainty about ‘safe’ limits and save lives at the same time. I’m struggling to understand why you should object to this.

      Curiously enough, Judy and I are going to a dinner party tonight. Our hosts live some considerable distance away. I expect I’ll drink half a bottle of wine over dinner and may well be offered a brandy or two afterwards. After a full meal, I might or might not be over the limit. I really have no way of being sure. So Judy and I will either share a taxi with a couple of other guests or arrange for a dial-a-driver to take us and a couple of friends home. I don’t find this a huge inconvenience.

      On the smacking issue, you’re quite right – it’s now uncertain whether there is a law against smacking or not. The new Section 59 appears to say that it is:

      (2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

      The Prime Minister tells us that a light smack is OK.

      Take your pick.

      I’m not sure of the relevance of your comment about Helen Clark. My position has never changed. I want to live in a country where it is against the law to hit children – full stop. I have also repeatedly said that the law should then be applied with sense and compassion. The current law allows for that too.

      (4) To avoid doubt it is affirmed that police have the discretion not to prosecute complaints against parents of any child, or those standing in place of any child, in relation to an offence involving the use of force against a child where the offence is considered to be so inconsequential that there is no public interest in pursuing a prosecution.

      I’m sure you’re right about ‘best practice’ not being currently ‘politically acceptable. That is scarcely an argument for abandoning best practice. Populism, currently practised to effect by John Key, is a philosophy of ‘followship’ not of leadership. We need more leadership.

      I’ve appreciated your thoughful response to my ideas.

  6. Hi Brian
    An interesting discussion. The cat is comfortably amongst the pigeons.

  7. supporters of repeal of S59 have been at pains to assert that it’s not about smacking, it’s about giving children the same protection as adults, (and indeed animals!), under law.

    Bill – your belief as to the extent of the protections our laws afford animals is misplaced. It was a fundamentally dishonest argument when it was first raised in the s 59 debate, and it is unfortunate that people have bought into it.

    Not just because it is wrong, but also because people might assume that the protections we offer animals are therefore sufficient. These should be toughened substantially.

    You focus on the comments of the present Prime Minister, but I can recall the previous incumbent, your preferred option I believe, making very similar noises. Of course this leaves a problem, is smacking against the law or is it not?

    Let me solve this problem once and for all (okay probably not): Smacking is against the law. Smacking is illegal. Smacking is a crime.

  8. “I’m struggling to understand why you should object to this. ”

    I simply object to there being laws against things that are harmless. I am sure one glass of wine with a meal impairs me much less than a stressful day’s work. Maybe it should be illegal to drive after a tough day at the office ?

    I think I will quietly withdraw now, I have work to do after all. Clearly you are a man who likes to have the last word, and fair enough it’s your blog. I will content myself with at least one tangible debating achievement. I succeeding at comparing you to Dr Brash without getting my head bitten off :-)

    • I think I will quietly withdraw now, I have work to do after all. Clearly you are a man who likes to have the last word, and fair enough it’s your blog.

      The last word.

  9. Discretion is part of our legal process. The police have discretion on whether to lay charges and what charges should be laid. The courts have discretion over the punishment that is imposed. If you remove discretion the courts are going to be clogged with trivial cases and there is going to be a widespread sense of public grievance. Public support is needed if law enforcement is to be effective. Your suggestions would counter productive and make the joob of police more difficult because of the resentment.

    And what would be the benefit? The numbers of accidents caused by excessive speed (if that is a cause) or impaired driving will not change. There will be no reduction in the number of child abuse cases.

    On the matter of drinking, personally I overcome the problem by not drinking at all if I am going to be driving. There is sufficient evidence to show that even below the limit one’s driving is impaired by alcohol and you may be interested to know that if you have an accident and have been drinking, your insurer may well chuck out your claim even though you were under the legal limit if iit iis considered that your judgement could have been impaired. The policy conditions give them this right and there have been many such instances and all unsuccessfully challenged. Another reason for abstinence.

    • Discretion is part of our legal process. The police have discretion on whether to lay charges and what charges should be laid. The courts have discretion over the punishment that is imposed.

      I think that’s what I said. The discretion should rest with the police and the courts, not with the ordinary person who should not be given the discretion to interpret the law as he/she thinks fit. Nor should the law have a built in mechanism for its own defeat, as is the case when the legislation sets the legal driving speed in town at 50K, but the de facto legal speed is anything under 60K.

      I’m not sure what your evidence is for your second paragraph. Are you suggesting that if no-one drank and drove and no-one exceeded the speed limits, there would be no improvement in our road accident statistics? That looks like a counsel of despair to me and highly unlikely to be true. And it seems to be contradicted by your third paragraph with which I entirely agree.

  10. “Are you suggesting that if no-one drank and drove and no-one exceeded the speed limits, there would be no improvement in our road accident statistics? That looks like a counsel of despair to me and highly unlikely to be true.”

    What I was trying to say was that if you remove discretion and prosecute anyone 1kmh over the speed limit or who who has 1mcg of alcohol (which is the essence of your arguement) it will have no affect oon the road tolll; it willl end up with a lot of overworked police and a very resentful public. If you mean what you say, that you want it to be illegal to drive 1kmh over the limit (and actually it is already) you are removing any discretion from the police; they have to prosecute. No ifs, no buts, no discretion, no doubt.”No ifs, no buts, NO DISCRETION, no doubt” – your words

    • What I was trying to say was that if you remove discretion and prosecute anyone 1kmh over the speed limit or who who has 1mcg of alcohol (which is the essence of your arguement) it will have no affect oon the road tolll; it willl end up with a lot of overworked police and a very resentful public.

      You probably have a point. I should have been clearer. What I intended was that we shouldn’t have a formal and an informal version of the law. My concern is not with the discretion of the police and the courts, but with vagueness or uncertainty in the law givng the ordinary person a discretion to make up their own mind over what is lawful and what isn’t. The law actually says that the legal speed limits in New Zealand are (unless otherwise signposted) 50K in built up areas and 100K on motorways and the open road. If you exceed those limits by even 1K you are actually breaking the law. BUT that is where the discretion of the police comes in.

  11. This discussion about “discretion” within the law, and in its application, is interesting.

    Before disappearing to work in China for the first time, I sought the advice of those imbibing at the altar in the Hong Kong Foreign Correspondents Club. As usual with journalists–even sober ones–they offered up the cliches that I had already read in the “How to do business in China” book I had bought at the airport. Except for one.

    “Where you come from,” he said, “the law says that you’ll be fined $50 bucks if you park on a fire hydrant. Where you are going the law says: ‘It is sometimes a good idea to be careful where you park.'”

    Certainty? I’m in favour….because the consequences of uncertainty depends on who is exercising the discretion. The less specific the law, the more power rests with those that interpret it.

    There’s a counterfactual: certainty can be tempered by the application of common sense. And uncertainty provides room for consensus and thus rapid progress. Oh, and corruption…

  12. Brian:

    The elephant in the room is whether is whether you’d have been a beneficiary of such “discretion” if you and your good lady were 1) brown, 2) about fifty years younger, and 3) had just spent an excessively convivial evening at The Grumpy Mole in Mangere or Waitakare.

    Ever heard of Dial a Driver or a taxi?

    Meanwhile, if we’re talking about zero tolerance laws perhaps the Police should be having a wee chat with whoever holds the liquor license at Valerio’s and was serving you booze when, in your own words, you admit you were grossly intoxicated and unfit to drive.

    • Brian: The elephant in the room is whether is whether you’d have been a beneficiary of such “discretion” if you and your good lady were 1) brown, 2) about fifty years younger, and 3) had just spent an excessively convivial evening at The Grumpy Mole in Mangere or Waitakare.

      Now that’s a whole different topic. The breathalyser presumably doesn’t know my skin colour, age or what pub I’ve just been drinking in. I assume, but don’t know, that the cops have some discretion in whether to take further action if the test is positive, but only just positive. If they are, as you appear to be suggesting, racist or ageist in exercising that discretion, then that is clearly unacceptable and something needs to be done about it. A whole different topic, as I said.

      I have heard of Dial a Driver and of taxis. That is why I specifically referred to both in my replies to comments from other people. Sarcasm doesn’t suit you.

      And Valerio. Well, Valerio is long since retired and his famous restaurant long gone. It was a restaurant, not a pub and I can’t really see that restaurant owners should be quizzing their patrons about their fitness to drive. In any event, Valero would have had no knowledge of our arrangements for getting home.

  13. Twenty five years ago I decided the only sensible thing to do was ‘dont drink and drive’ After all it’s what the sign said.

    So I don’t do either – drives my partner nuts of course – I mean “what good are you”

    • Twenty five years ago I decided the only sensible thing to do was ‘dont drink and drive’ After all it’s what the sign said.
      So I don’t do either – drives my partner nuts of course – I mean “what good are you”

      Sensible, if somewhat selfish. You could at least take turns to be “the designated driver”. More sensible still to change the law so that drinking and driving is illegal. And more gender egalitarian as well.

  14. Brian, i was breathalysed (is that term?) a couple of months ago. Got through even tho’ I would’nt of been surprised to have had to go on and have a blood test – must of been close.
    My suspicion is that they turned their tolerance – on their meters – up a bit otherwise they would of had a ‘bursting at the seams’ police station that night (it was a blitz).

    • My suspicion is that they turned their tolerance – on their meters – up a bit otherwise they would of had a ‘bursting at the seams’ police station that night (it was a blitz).

      Interesting theory, ConorJoe.

  15. 15

    Ianmac from Abu Dhabi

    They say that alcohol related incidents occupy a huge amount of Police and Hospital time in NZ. At the Black Caps Cricket here in the UAE, the atmosphere was friendly and relaxed. No alcohol you see. Opposing camps swapped enthusiastic responses to the rise and fall of their teams. A pity that in NZ or Australia there wasn’t……………….

  16. The problem with your feeling BE that there should be a zero alcohol limit, there is no speed tolerance etc, is that once you start down this track you cant stop.
    Firstly the limits are arbitrary – there is no evidence about a specific speed being safe and just 1km’hr faster being unsafe, etc.
    But you have to apply the same reasoning to all other areas of society. Overdue accounts, the IRD has no discretion (they realised how dumb this was and changed it only recently), Stealing 5 cents is no different to stealing $5 mill, no time off for good behavior, etc, etc. Its soon turns into a police, then communist, state.

    Its not a society that I would like to live in

    • The problem with your feeling BE that there should be a zero alcohol limit, there is no speed tolerance etc, is that once you start down this track you cant stop.

      I’m afraid this is patent nonsense, Barry, not to mention a counsel of despair and a recipe for anarchy. Of course we can set limits on some activities and not on others. Our entire legal system and, for that matter, our very civilisation is based on our ability to do just that. Stealing 5c is no different from stealing $5 million only in the sense that both are stealing. This is like arguing that cutting someone to ribbons with an axe is no different to smacking their face. Both, after all, are forms of assault. As for turning New Zealand into a Communist state, have you by any chance been watching too much Fox News?

  17. Idealism gets us nowhere. Countries with zero limits have high tolls – reason a zero limit was lately lifted in an Eastern bloc country.
    0.05 limits result in Police chasing revenue and being distracted from going after the real problem – those over twice that level. They don’t alter drink drive patterns or consumption following a temporary small effect of 3 years odd, as drivers soon figure its just a minor infringement like a speeding fine and take it on the chin. Generally 0.05-0.08 where used is non criminal as the studies show no negligence in driving at this level. Under 1% of the toll is caused by this group, far better to target teens, grans, drug users. Well almost anyone BUT them.
    Feeling the effects of some alcohol in no way equates to having raised crash risk anymore than being in love when you are under the scientifically set 0.08 limit. Under 0.06 several studies actually show a lower crash risk than when sober. Look through the propaganda the revenue lovers at Treasury are spending mills on – mills on that should be spent on real road safety.

  18. Stunned that so many comments have been made, and none pointed out the bleeding obvious:

    1) Police have to allow 10% error on speed limit testing (radar guns, speed cameras) because legally cars are allowed to have speedos inaccurate by up to 10% for their WoF (because nothing built is perfectly accurate). Can’t ping people for speeding if their speedo – passed at WoF – says they are doing 50km/hr when they are actually doing 55km/hr.

    2) Similarly, breath testing requires a non-zero limit (despite the nice sentiment of ‘no drink if you drive’), because people could inadvertently consume alcohol (sherry in trifles, Xmas cake, etc) that does not affect their ability to drive, but does show up on breathalysers. Otherwise restaurant patrons with a wine based sauce could find themselves pinged, despite the alcohol content being negligble.

    3) S59 – sheesh! You claim “disastrous results” under old S59 that permitted reasonable force to be used on children, yet give no evidence of these results *PERMITTED BY OLD S59*. Heaps of child abuse, but IIRC only a small number of successful defenses using old S59, none of which involved death or significant injury to the child. Please correct me if I’m wrong…

    The issue is twofold:
    – is a smack legal? Bradford said no when grilled by Sean Plunkett, but John Key says yes. Not that PMs opinions count for anything in a court room.
    – should we define a limit to ‘acceptable’ force? Bradford said no, but then did exactly that. New S59 defines when force is reasonable – it just excludes any force used for the PURPOSE of correction. She did this when it became apparent her original idea of repealing old S59 would make ALL physical contact with a child against that child’s will a technical assault. Now that would be ‘disastrous results’!
    So now we have a flaky S59 that tries to examine parental intent when using force on a child. Disaster waiting for Police to drop the go slow on prosecutions.

    Facts are – non-zero limits are necessary and useful things. You just have to know how to define and use them. Someone should tell Sue Bradford. Ooops, too late ;(

  19. I have yet to have my car tested for speedo accuracy at a WOF and surely with todays technology we could have an acuracy built in . My phone measures my speed ,defines my route and distance when I go bike riding. Fit cars with these and let technology monitor it. It sounds like big brother but this is not nessesarily evil.
    As for child smacking why shouldnt we avail the most vulnerable members of our society with the same rights we expect for ourselves.
    Just while we are on the zero tolerance topic lets include the wearing of cycle helmets as well .If your not wearing a helemt perhaps youve just stolen the bike,or because your brain isnt sufficiently developed to see the need for one you dont need to wear one.My helmet saved my head when I had stopped to aid a broken down motorist and was looking under his bonnet when the hood collapsed on my head and was saved by the helmet.I do concede that the alien in District 9 with the machine gun may not have been afforded
    sufficient protection from his cycle helmet.