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An Auckland man charged with driving under the influence after drinking kava has been dismissed.
Kamlesh Kumar, 52, of Mt Wellington, was pulled over by police on the South Highway at 2.11 a.m. on October 14, 2018, after he was seen weaving in his lane.
According to court documents, Kumar’s pace was controlled to 119 kilometers per hour before police stopped him.
He passed a breathalyzer test, but was ordered to take a mandatory impairment test, of which he passed the eye movement test “with flying colors.”
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Chris McKeen / Stuff
Kamlesh Kumar has had his case before the Manukau District Court since 2018.
However, he failed the walking and balance tests.
Kumar admitted to police that he had consumed kava at a social gathering (about five or six small bowls), was taking unknown prescription drugs, and had leg weakness due to a back problem.
Kava, a traditional drink from the Pacific, is not listed as a controlled or qualified drug under the Land Transportation Act. However, it is considered a drug if it leaves the driver unable to have proper control of a vehicle.
Judge Charles Blackie dismissed the charge on November 20 this year in Manukau District Court, ruling that there were other factors that could have affected Kumar’s driving, including his medical problems.
Kumar becomes the second person in New Zealand to have a charge of driving under the influence of kava dismissed.
Andy Jackson / Stuff
Police detained Kumar after they saw him weaving in his lane on the South Freeway. (File image)
Only three people have been charged with the crime, the first of whom was the man from Porirua, Leameitonga Tupou, in 2000, whose charges were dropped seven years later.
Aho Ioane, of Palmerston North, became the first person to be convicted in June 2007.
Judge Blackie, in his decision, said that since the impairment test and the law enforcement officer’s observation were the only evidence to support “driving while disabled,” he had reasonable doubts that the prosecution could prove his case against Kumar.
“Kava is a unique drug in that it is legal and unregulated. Unlike alcohol or other controlled substances, there are currently no limits on consuming kava prior to operating a motor vehicle, ”he said.
The amount of kava a person needs to consume in order for its influence to render a person incapable of proper control of a motor vehicle would depend on a number of factors, including the strength of the infusion, other medications that could interact with the kava and pre-existing health conditions, he said.
JASON DORDAY / THINGS
Kava, a traditional drink from the Pacific, is a relaxing alternative to alcohol and has an effect on the central nervous system.
Judge Blackie said there was no measurable standard available to assess how much kava a person would need to consume before it is illegal for that person to drive.
Kumar’s attorney, Jared Moss, said police had to prove that his client was so affected by kava that he was unable to gain control of his vehicle.
His client’s failure of the impairment test couldn’t prove that beyond a reasonable doubt, he said.
Kava driving charges
Tupou, a printing assistant, was arrested for allegedly driving erratically on the North Wellington Highway after drinking six quarter kava half coconut shells in 2000.
He passed a breath test, but police noted that he had slurred speech, bloodshot eyes, and the smell of solvents.
The charge was dismissed because the judge ruled that there were other factors contributing to her erratic driving, including fatigue and her suffering from gout.
His difficulty speaking may be due to the inability of the arresting officer to understand his Tongan accent.
In June 2007, Palmerston North man Aho Ioane entered the record books as the first person to be convicted of driving under the influence of kava.
He arrived safely home from church, but a witness reported that his car was crossing the road. He was reportedly slurred, unsteady on his feet, and had bloodshot eyes.
Ioane had told the police that he had been drinking Tongan kava before church.
Doctors found that he was under the influence of the drug, to the point that he was unable to drive.
He was sentenced to 50 hours of community service and six months of suspended leave.
