Drink-Driving Limits in New Zealand: What Happens if You Fail a Breath Test?

Many people charged with drink-driving have never been in trouble with the law before.

They may have had a few drinks at a social event, believed they were safe to drive, and then been stopped by Police.

Others may be facing a second offence and are worried about losing their employment or receiving a more serious sentence.

Understanding the legal limits and what happens next is important.

1. What is the legal drink-driving limit in New Zealand?

For drivers aged 20 years or older, the legal alcohol limits are:

• Breath alcohol: 250 micrograms of alcohol per litre of breath.
• Blood alcohol: 50 milligrams of alcohol per 100 millilitres of blood.

For drivers under 20 years old, the legal alcohol limit is zero. A reading of up to 150 micrograms is a $200 infringement fee and 50 demerit points. Over 150 micrograms is a criminal charge.

There is no dependable rule that one beer, one glass of wine, or a particular number of drinks will leave you under the legal limit.

Your alcohol reading can be affected by your body size, the amount you drink, how quickly you drink, and other factors.

The safest course is not to drive after consuming alcohol.

2. What happens if I blow between 251 and 400?

For a driver aged 20 or over, an evidential breath alcohol reading between 251 and 400 micrograms per litre will generally result in:

• A $200 infringement fee.
• 50 demerit points.

This is usually dealt with by an infringement notice, not a criminal conviction.

However, the demerit points may have serious consequences if you already have points recorded against your licence.

If you reach 100 or more active demerit points within two years, you will usually face a three-month licence suspension. A limited licence may let you keep driving for work during a demerit suspension.

3. What happens if I blow over 400?

A breath alcohol reading over 400 micrograms per litre generally results in a criminal charge.

You will usually have to appear in the District Court.

For a first or second qualifying offence, the ordinary maximum penalties include:

• A fine of up to $4,500.
• Imprisonment for up to three months.
• Disqualification from driving for at least six months, subject to the applicable alternative sentencing provisions.

The court will consider the circumstances of the offence, your previous convictions, your personal circumstances and the relevant sentencing law.

Not everyone receives the same sentence.

4. What happens if I blow over 800?

A reading of 800 micrograms or more is particularly serious.

The alcohol interlock sentencing provisions will generally apply.

This may involve an initial disqualification followed by a period during which you can drive only vehicles fitted with an approved alcohol interlock. Our alcohol interlock page explains how it works.

The precise sentence will depend on the statutory requirements and your circumstances.

A very high reading may also influence the court's assessment of the seriousness of the offending.

5. What happens if this is my second drink-driving offence?

A previous conviction can substantially affect the sentencing options available.

The court will consider the nature and timing of the earlier offending and whether the statutory provisions for repeat offending apply.

Depending on the circumstances, an alcohol interlock sentence, zero alcohol licence requirements, or more serious penalties may arise.

If you have previously been convicted of drink-driving, you should get legal advice before your court appearance.

6. What happens when Police stop me for a breath test?

Police can require drivers to undergo roadside breath screening.

If the result indicates alcohol above the relevant limit, Police may require an evidential breath test or proceed under the statutory blood-testing provisions.

An evidential breath test is different from an initial screening test.

The evidential result may be used to support an infringement notice or criminal prosecution.

Police must comply with the relevant statutory procedures.

7. Can I refuse to take a breath test?

Refusing to comply with a lawful Police requirement can itself have serious legal consequences.

Different provisions apply depending on the particular requirement, including requirements to undergo screening, accompany Police for evidential testing, or provide a blood sample.

There are also specific statutory procedures and rights concerning blood testing.

If you believe Police did not follow the proper procedure, you should get legal advice.

Refusal is not a reliable way to avoid prosecution.

8. Can Police suspend my licence immediately?

Yes.

In qualifying drink-driving cases, Police may impose an immediate 28-day roadside licence suspension.

This is separate from any sentence the District Court may later impose.

If you have received a suspension notice, you must carefully check its terms.

Do not assume that you can drive just because you have not yet appeared in court.

9. What if I need my licence for work?

Losing your licence can have serious consequences for your job.

For example, a tradesperson may need to carry tools and equipment between jobs, while a salesperson may need to travel to customers throughout Auckland.

Depending on the type of suspension or disqualification, it may be possible to apply for a limited licence, commonly called a work licence.

A limited licence is not automatic.

You must satisfy the statutory requirements, including demonstrating the necessary hardship and showing that granting the licence would not be contrary to public safety.

Some disqualifications, including alcohol interlock disqualifications, do not permit a limited licence.

A lawyer can advise whether an application is available and what evidence will be required. Our work licence page explains how it works and what it costs.

10. Can I avoid a criminal conviction for drink-driving?

In some circumstances, you may apply for a discharge without conviction under section 106 of the Sentencing Act 2002.

The court must be satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

This is a demanding legal test.

A discharge without conviction may be particularly important where a conviction could affect:

• Current employment or future employment prospects.
• Professional registration.
• Immigration or visa status.
• Overseas travel.
• Other significant personal circumstances.

However, none of these consequences automatically entitles you to a discharge.

The court must assess the particular case. Our section 106 page explains how it works and what it costs.

Even where a discharge without conviction is granted, separate statutory powers concerning driving disqualification or other orders may still need to be considered.

11. What can I do before my sentencing hearing?

If you plan to plead guilty, good preparation may help the court understand your circumstances.

Depending on the case, this could include:

• Getting legal advice early.
• Attending an alcohol assessment or appropriate counselling programme.
• Enrolling in an alcohol education or treatment course.
• Getting relevant employment information.
• Preparing genuine evidence of rehabilitation.
• Getting appropriate references.
• Considering voluntary community service where relevant and practicable.

These steps do not guarantee a particular sentence.

However, properly documented rehabilitation and an informed sentencing proposal may help the court.

12. Do I need a lawyer for a first drink-driving offence?

You don't have to hire a private lawyer just because you have been charged.

However, legal advice can be valuable, particularly if:

• Your reading is high.
• You need to drive for work.
• You have previous convictions.
• You are concerned about a criminal record.
• Your employment or professional registration may be affected.
• You believe there may be a legal issue with the Police evidence.
• You want to find out whether a discharge without conviction is available.

Charged with drink-driving? Contact LawyerHelp.

Barrister Melanie Coxon provides advice and representation in drink-driving and traffic cases.

Obtaining advice before your first court appearance can help you understand the charge, the available options, and the likely consequences.

Contact LawyerHelp to discuss your circumstances.

This article provides general information about New Zealand law. The appropriate advice and likely outcome depend on the facts of each case.