What you need to know when it comes to a Drink Drive Charges

When faced with a drink-driving charge, it's extremely important to know your rights and to know the procedure that the police are required to follow. Mistakes made by the police may provide you with a defence. You should therefore get advice from a lawyer who is familiar with this area of law.

Have Questions?

What breath or blood tests can the Police make you undergo?

The Police can stop you at any time while you are driving and request you to take a passive breath test or a breath screening test. They do not have to suspect that you're over the limit or have breached any traffic law to get you to take one of these tests.

Normally a drink driving charge will start when a police officer stops you and requests a passive breath test. Here the officer will ask you to speak your name and address into a handheld device.

If you fail this test you are normally requested to undergo a breath screening test unless a breath screening device is unavailable.* For this test, you must either blow into a bag or into a straw attached to a handheld device. Either will indicate how much alcohol you have had to drink.

The result of a breath-screening test can't be used as evidence in Court against you but if you fail the test you can be required to accompany the Police officer to another place for an evidential breath test or an evidential blood test, or both. Normally 'another place' means the nearby 'booze bus' or the nearest police station. The results of these evidential tests can be used to support a charge against you.

It is a breach of your Bill of Rights for a Police officer to require you to accompany him or her 'to another place' if you have not first been required to do a breath screening test or having done a breath screening test which you passed.

What happens if you refuse to undergo a passive test or breath screening test?

It's not an offence to refuse to take a passive 'sniffer' test (where you are requested to speak your name and address) or to refuse a breath screening test.

However, if you do refuse either test, the police officer can require you to accompany them in order that you give an evidential breath test or evidential blood test.

It's an offence to refuse to accompany a police officer to undergo an evidential blood test, or to accompany the police officer but then leave before having the test, or to have the test but leave before the police officer has the results of the test.

Do I have a right to speak to a lawyer?

Under the New Zealand Bill of Rights Act 1990 you have the right to speak to a lawyer and get legal advice before you give any evidence such as undergoing an evidential breath or blood test.

Further, the police must inform you that you have the right to contact a lawyer by telephone and they must allow you to do this without delay and in private. The police should provide you with a list of on-call lawyers who are available (on the Police Detention Legal Assistance scheme) to give you free legal advice over the phone, day or night.

What if the Police don't follow the proper procedures in carrying out the tests?

Small mistakes by the police in following the proper procedure will not always mean that the judge will exclude the evidence. For example, it is no defence to a drink-drive charge against you that the police didn't follow the testing procedures exactly so long as there was reasonable compliance with these procedures. The court will weigh up how important the breach is compared with the value of the evidence.

Here is a list of things that can on occasion (depending on all the circumstances) undermine what would otherwise be a successful police prosecution

Partially Within Client's Knowledge

1) The advice of the result of the evidential breath test should be immediate.

2) A ten minute period may not be taken up with a call to a lawyer.

3) The officer in charge must complete a breath screening test before requiring to accompany for evidential breath or blood test.

4) The officer in charge must not serve documents on a person during the ten minute period.

5) The officer in charge may not leave the person alone for the ten minute period and then fail to check during/after time whether a blood test was wanted.

6) If the detained person cannot speak English, the police must obtain an interpreter to explain the process.

7) The officer in charge or the officer in charge's partner must not verbally abuse the detained person.

8) The officer in charge may not serve notice of suspension prior to the ten minute period.

Pre Trial (Lawyer and Disclosure)

9) The information outlining the charge must be filed within the prescribed seven day period.

10) Section 75 Certificate must not have expired.

11) The officer in charge must either be in uniform or in possession of a warrant when pulling drivers over and administering the test.

12) The officer in charge must not materially alter documents after they have been disclosed to counsel or even after the event.

13) The detained person's right to call a lawyer must be adequately facilitated by the officer in charge

14) There may not be an arbitrary detention prior to breath testing procedures being carried out. [2 hours has been held to be arbitrary detention]

15) There must be sufficient proximity in time between the driving and the breath screening test. [1 hour has been held to be insufficient proximity]

Must Be Proven At Hearing

16) The officer in charge must be able to produce his notebook at the hearing.

17) The Certificate of Compliance for the evidential breath test machine must be exhibited.

18) Section 75 Certificate must be produced indicating that the machine has been calibrated prior to the evidential breath test.

19) The police must prove that they have advised the accused that blood was to be taken by a medical practitioner or medical officer (Registered Nurse).

20) A copy of the evidential breath test must be exhibited at the hearing.

21) The prosecution must prove beyond reasonable doubt that the defendant was under 20 if it is a youth EBA.

22) The officer in charge must attend the hearing.

What if the result of the breath-testing was incorrect?

It is no defence to a charge of excess breath-alcohol or blood-alcohol that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistake or likely mistake meant that the Police weren't entitled to require an evidential breath test.

Further, it's no defence to a charge of failing or refusing to supply a blood specimen that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistaken or likely mistake meant that the police weren't entitled to require an evidential breath test or a blood test.

What if giving a blood sample would endanger my health in some way?

It's a defence to a charge of refusing to supply a blood specimen if the court is satisfied that taking a blood specimen would have been harmful to your health. Here each case will depend on its own circumstances and background.

Other defences or?

Other possible defences - such as necessity - are invoked only infrequently, and circumstances must be exceptional for them to succeed.

What about Disclosure?

Disclosure is of vital importance in a drink-drive case. Normally a lawyer will advise you not to plead guilty at the first court hearing so that you and your lawyer of choice can obtain your police disclosure to double-check that your legal rights have been fully complied with.

A lawyer will normally not advise a client to enter a guilty plea on a cursory initial disclosure pursuant to s12(1). If you do want to plead guilty on your first appearance the lawyer will normally require you to sign a waiver in regards to their advice to you. Disclosure is now codified in the Criminal Disclosure Act 2008.

Section 3 of the Act states: (1) The purpose of this Act is to promote fair, effective and efficient disclosure of relevant information between the prosecution and the defence and by non-parties for the purposes of criminal proceedings.

Advice to plead guilty is not normally given unless full disclosure pursuant to s13 is first received and discussed with you unless you are adamant you want to plead guilty on your first appearance and you give your lawyer full and informed instructions in writing.

Initial disclosure must be provided 21 days from the commencement of criminal proceedings i.e. the date of laying the information and filing it in the Court. Full disclosure must be provided "as soon as is reasonably practicable subject to any order made under s30 (enables an application to the Court for an Order for information to be disclosed or s32 enables the Court to make Orders setting out a timetable for disclosure."

Note the sanction in s32(3)(b) empowers the Court, if satisfied, there is no reasonable excuse for failure to comply with an Order for disclosure to deal with the failure as a contempt of Court.

A recent case dealt with under the new disclosure regime is McKelvey v Police HC Palmerston North 20.07.2010, Mallon J -

M appealed his conviction and sentence on charges of dangerous driving and failing to stop.

One ground of appeal was that there was inadequate disclosure by the prosecution of relevant material. Her Honour states at [5] "On 12 May 2009 Mr McKelvey's counsel made a detailed request for disclosure. This included a request for copies of all police notebook entries and job sheets, any maps or diagrams, any "use of force" report and any recording or transcript of any police emergency or similar communications. The prosecution had supplied the summary of facts and one page from a notebook of one of the police officers. But otherwise this disclosure request went unanswered."

The result is an emphatic statement denouncing tardy disclosure obligations. At [43] Mallon J states "The appeal is allowed. The convictions are quashed. I do not order a rehearing. I am minded to order costs in Mr McKelvey's favour, but will give the respondent a further opportunity to make submissions about this."


Nothing on this website constitutes legal advice. If you face a legal issue, you should take specific legal advice from a lawyer before taking any action.

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