Defences to Drink Driving

By Luke Beveridge | Criminal Law

At Queen City Law we urge you to get good legal advice if you are considering fighting a drink driving charge. If you intend to seek a discharge without conviction, be sure to share with your lawyer in a timely way all aspects of the circumstances surrounding your case. Many of the details of these circumstances will determine wether or not your defence is successful in court.

Did you comply with police instructions? Were you the driver? Are you the owner of the vehicle?

If the driver is aged 20 or older and the test shows that the level of alcohol in their breath is over 400 micrograms per litre of breath, it is considered positive and will be used as evidence in court.

Most successful defences revolve around the way the Police executed their duties in the process of stopping, testing and charging you.

  • How were you stopped?
  • Where were you stopped?
  • What happened during the testing process?
  • Were your rights respected?
  • Did the Police handle you?
  • Are there mitigating circumstances or medical reasons for your failure of the test?
  • Were your samples spoiled or incorrectly taken?

If the procedures performed by Police do not in the eyes of the court “pass muster” then test results cannot be used as evidence in the prosecutions case. If the result of a person’s evidential breath test appears to be positive, the person has the right, within 10 minutes of being advised by an enforcement officer about the result and the conditions of the admissibility of the test, to choose to have a blood test to assess the level of alcohol in their blood.

  • A blood test may be required if:
  • the driver fails or refuses to undergo an evidential breath test without delay
  • no evidential breath testing device is available
  • the driver has been arrested for suspected driving under the influence of alcohol or drugs, and either:
  • a doctor has examined the driver and believes that they are under such influence, or
  • the driver has refused to be examined by a doctor for an assessment, or
  • the driver has failed to satisfactorily complete a compulsory impairment test and there is good reason to suspect that he or she has taken drugs.

A person who produces a positive evidential breath test also has the right to elect to undergo a blood test to assess the proportion of alcohol in his or her blood. Blood tests must be taken by a doctor or, in some circumstances, by an authorised nurse.

For more information on Drink- and drug-driving offences or Breath and blood alcohol limits check Land Transport Act 1998, ss 11, 56, 57

Readers may find more useful information in the Community Law Manual

The proportion of New Zealanders aged 15 years or more who drank alcohol in the past year dropped from 84% in 2006/07 to 80% in 2011/12 (Ministry of Health, 2013). There are many New Zealanders who will get caught up in the more aggressive policing of the Drink Driving Laws. If you are stopped and arrested for Drink Driving get in touch with us to explore your case and see if circumstances exist for you to obtain a discharge without conviction. To contact us click here.

Police estimate that each day in New Zealand, an average of 8,764 breath tests of drivers are undertaken and 100 people are charged with drink-driving (New Zealand Police, 2010).

Drinking and Driving does have a direct connection to deaths on the road and the courts treat these matters very seriously. As the severity of crashes increases, so does the contribution of driver alcohol. For every 100 alcohol or drug-impaired drivers or riders killed in road crashes, 50 of their passengers and 19 non-alcohol impaired road users die with them.

In 2012, driver alcohol was a contributing factor in 73 fatal crashes, 331 serious injury crashes and 933 minor injury crashes. These crashes resulted in 93 deaths, 454 serious injuries and 1,331 minor injuries.

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This information was accurate as at May 2013

We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and it should not be relied upon in individual cases. Professional advice should always be sought before any decision or action is taken.