Drink and Drug Driving

by The FindLaw Team

Driving when you're over the limit

 

Different alcohol limits apply to different people. It is an offence to drive or attempt to drive a car or motor cycle if the amount of alcohol in your breath or blood is over the limit that applies to you.

 

Alcohol limits - which one applies to me? 

 

If you are under  20 there is a zero alcohol limit, any amount of alcohol  is over the legal limit. It is an offence to drive a car, or ride a motorcycle, or even attempt to, if you are over this limit. You could be fined, have your licence suspended, lose your license or even be imprisoned. The 400 micrograms per litre of breath or 0.08 per cent blood alcohol limit applies to all drivers who are 20 and over. Different penalties apply depending on how much over the limit you are, whether you have killed or injured anyone and whether it is your first drink driving offence or not. You could be fined, have your license suspended, lose your licence and even be imprisoned. Go to the NZ Transport Agency's website to find out what the current penalties are.

 

Breath tests

 

The police have the power to ask anyone who has been driving a car, or riding a motorcycle, or attempting to, to have a breath test. You can be stopped by the police and breath-tested at any time. It is against the law to leave if you are being tested. The police can use the following tests to establish whether you have been drinking:

 

A passive breath test or “sniffer” test is done with a hand-held device that you will be asked to talk into. If any alcohol is detected or if you refuse the passive breath test, you will be asked to do a breath-screening test.

 

A breath-screening test is done either by blowing into a bag or with a small electronic device that uses machine analysis to measure breath alcohol. If you fail or refuse a breath-screening test, you will be asked to take an evidential breath test.

 

An evidential breath test, which can be used as evidence in court of your breath-alcohol concentration, is done with a more accurate machine, either at a police station or at a mobile breath testing station.

 

If the result is positive, you have 10 minutes to decide if you want a blood test too. It is important to note that if you choose to undergo a blood test after a positive evidential breath test, the results of the evidential breath test cannot be used as evidence in court and the blood tests must be relied upon by the police. If you refuse to take an evidential breath test, you will be required to take an evidential blood test, which is required to be given by a medical doctor or other approved person and can be used as evidence in court. If you refuse the evidential blood test, you could be fined, have your  licence suspended, lose your  licence and even be imprisoned. If the evidential breath or blood test shows that your alcohol level is over the limit which applies to you, the police have the power to arrest you and take you to a police station. For more information see: Alcohol limits - which one applies to me?

 

If your blood test shows that you are over the legal limit, you will be given a copy of the blood test certificate. You also have the right to ask for your blood sample to be tested by an independent analyst. You should arrange this through your lawyer.

 

Important! It is an offence to try to do something to change your alcohol level before you have the test. The police cannot ask you to have any breath test if you are in hospital or a doctor’s surgery as a result of an accident involving a car or motor cycle.

 

Furthermore, it is not an offence to refuse to take any breath test. However, if you refuse all three breath tests, the police can require you to have an evidential blood test.  As mentioned already, it is an offence to refuse to give blood for the purposes of this evidential blood test. However, you should remember that it also an offence for you to refuse to go with the police for an evidential breath or blood test.  It is, however, a defense, to the failure or refusal to give blood if the court is satisfied, on the evidence of a medical doctor or other approved person, that the taking of a blood specimen would have been prejudicial to your health. If you did refuse to go with the police to allow a blood test to be taken, you could be fined, have your  licence suspended or lose your  licence, as decided by the court, in the circumstances.

 

Driving while drug-impaired

 

It is an offence to drive a car or ride a motor cycle while drug-impaired and where your blood contains evidence of the use of drugs. "Drugs" include cannabis, amphetamines, barbiturates such as anti-anxiety and tranquilliser medication, heroin and most sedatives (eg. valium). Certain controlled drugs and prescription medicines are also included, although it is a defence if you can prove that you were using it in accordance with a prescription, any instructions from the manufacturer, the doctor who prescribed it or the pharmacist who dispensed it. For this offence, it is not enough for there to be evidence of certain drugs in your bloodstream but there must also be evidence of your impairment.

 

Therefore, if you have had a breath test and it shows that you are not over the alcohol limit that applies to you, the police have the power to give you a further compulsory impairment test if they have good cause to suspect that you have taken drugs. This belief, for example, can be based on the way you were driving or attempting to drive.

 

Such a compulsory impairment test would include an eye assessment, a walk-and-turn assessment and a one-leg stand assessment. It is an offence to refuse to be assessed. If you do not satisfactorily complete the compulsory impairment test, the police may forbid you from driving and require you to take a blood test. The procedure for taking the blood test is the same as for drink drivers. When the blood tests are known, the police can make a decision whether or not to charge you. It is an offence to refuse to have your blood taken or to go with the police to have your blood taken. You could therefore be arrested if you did refuse to do either and thereafter be fined, have your  licence suspended or lose your  licence, as decided by the court, in the circumstances.

 

If the presence of drugs is found in your blood after you had failed the compulsory impairment test, you could be fined, lose your  licence, be prevented from obtaining a  licence or be imprisoned.

 

Driving under the influence of alcohol or drugs

It is also against the law to drive a car or ride a motorcycle or even attempt to do either, under the influence of alcohol or drugs, or both, to such an extent that you are incapable of having proper control of the car or motorcycle or if your blood contains evidence of the use of a specified Schedule 1 drug in terms of the Misuse of Drugs Act 1975. You could be fined, lose your  licence, and even be imprisoned

 

Blood samples

 

It is important to be aware that if you are injured in a car or motor cycle accident and taken to hospital, the medical doctor or other approved person who treats you does have the legal right to take a blood sample from you if they have reasonable grounds to suspect that you are in hospital as a result of an accident or incident involving a car or motor cycle or an injury or a medical condition arising subsequent to an accident or incident involving a car or motor cycle.

 

This applies even if you do not agree to have the sample taken from you. However, the medical doctor or approved person is not allowed to take a blood sample from you if they think it would prejudice your proper care or medical treatment.

If you or someone you know needs legal advice regarding the criminal matters above you can find a lawyer in your area who specialises in this area of law using the FindLaw directory.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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