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Land Transport Act 1998

Driving offences involving drink or drugs, and penalties and procedures - Defences

64: Defences

You could also call this:

“Situations where you can defend yourself if accused of breaking driving rules about alcohol and drugs”

You have defences in certain situations when you’re accused of breaking driving laws about alcohol and drugs. Here’s what you need to know:

If a doctor says giving a blood sample would harm your health, you can use that as a defence if you’re accused of not giving a blood sample.

If you’ve taken a drug that shows up in a test, you can defend yourself if you took it exactly as your doctor told you to, or if a doctor gave it to you and you followed their instructions.

If you can’t do a required impairment test because of a medical condition you already had, or because you were hurt in the accident that led to the test, you can use that as a defence.

It’s not a defence to say that the procedures weren’t followed perfectly, as long as they were followed reasonably well.

If you’re accused of drunk driving, it’s not a defence to say that breath or blood tests showed you were under the limit.

You can’t defend yourself by saying there might have been mistakes in breath, blood, or oral fluid tests, or that such mistakes didn’t give you the right to ask for more tests.

Remember, these are just some of the defences in the law. The actual situations can be more complicated, so it’s always best to get help from a lawyer if you’re accused of breaking these laws.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM434814.

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"Extra punishment for driving offences in transport service vehicles"

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65: Mandatory disqualification and assessment for repeat offences, or

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Part 6 Driving offences involving drink or drugs, and penalties and procedures
Defences

64Defences

  1. It is a defence to proceedings for an offence against section 60 (which relates to failing or refusing to supply a blood specimen) if the court is satisfied, on the evidence of a health practitioner, that the taking of a blood specimen from the defendant would have been prejudicial to the defendant's health.

  2. Subsection (1) is subject to section 60(3B) and (3C).

  3. It is a defence to proceedings for an offence against section 57A(1) or (2), 57B(1) or (2), 57C(1) or (2) or 62(1B) if the court is satisfied that the person has consumed the relevant qualifying drug—

  4. in accordance with—
    1. a current and valid prescription written for that person by a health practitioner; and
      1. any instructions from a health practitioner or from the manufacturer of the qualifying drug; or
      2. because it was administered by a health practitioner, provided that the person complied with the instructions (if any) that the health practitioner has given.

        1. It is a defence to proceedings for an offence against section 57A(3), 57B(3), or 57C(3) or (4) if the person’s oral fluid indicates use of a qualifying drug and—

        2. the person—
          1. has a current and valid prescription for the qualifying drug that was written for that person by a health practitioner; and
            1. has complied with the instructions (if any) from a health practitioner or from the manufacturer of the qualifying drug about driving, consuming alcohol or other prescription medicines, or both, while consuming the qualifying drug; or
            2. the drug was administered by a health practitioner, and the person complied with the instructions (if any) given by the health practitioner.

              1. It is a defence to proceedings for an offence against section 60(1)(d) if the court is satisfied that the person's failure or refusal to undergo a compulsory impairment test is because of—

              2. a pre-existing medical condition or pre-existing disability that precludes undergoing the test:
                1. an injury, sustained in a motor vehicle accident giving rise to an obligation to undergo the test, that precludes undergoing the test.

                  1. It is no defence to proceedings for an offence that a provision forming part of sections 68 to 75A, 77, and 77A has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.

                  2. In any proceedings against any person for an offence against section 52(1)(c) arising out of circumstances in which an enforcement officer exercised powers under section 121(2) and in respect of which a breath screening test or an evidential breath test or a blood test was undergone by the person, it is no defence that—

                  3. the breath screening test or evidential breath test indicated that,—
                    1. in the case of a person apparently younger than 20, the person’s breath did not contain alcohol; or
                      1. in the case of a person who holds an alcohol interlock licence or a zero alcohol licence, the person's breath did not contain alcohol; or
                        1. in any other case, the proportion of alcohol in the person’s breath did not exceed 250 micrograms of alcohol per litre of breath; or
                        2. any evidence given in respect of the results of a blood test indicates that,—
                          1. in the case of a person apparently younger than 20, the person’s blood did not contain alcohol; or
                            1. in the case of a person who holds an alcohol interlock licence or a zero alcohol licence, the person's blood did not contain alcohol; or
                              1. in any other case, the proportion of alcohol in the person’s blood did not exceed 50 milligrams of alcohol per 100 millilitres of blood.

                              2. It is no defence to proceedings for an offence against section 60 (which relates to failing or refusing to supply a blood specimen) that—

                              3. there was or may have been an error in the result of the breath screening test, evidential breath test, or oral fluid test; or
                                1. the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test or a blood test.

                                  1. It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's breath—

                                  2. that there was or may have been an error in the result of the breath screening test or evidential breath test; or
                                    1. that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test.

                                      1. It is no defence to proceedings for an offence against this Act in respect of the proportion of alcohol in a person's blood—

                                      2. that there was or may have been an error in the result of the breath screening test or evidential breath test; or
                                        1. that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require an evidential breath test or a blood test.

                                          1. It is no defence to proceedings for an offence against this Act in respect of the proportion of a qualifying drug in a person’s blood—

                                          2. that there was or may have been an error in the result of the first oral fluid test or second oral fluid test; or
                                            1. that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require a second oral fluid test or a blood test.

                                              Compare
                                              Notes
                                              • Section 64(1): amended, on , by section 8 of the Land Transport Amendment Act 2016 (2016 No 77).
                                              • Section 64(1): amended, on , by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).
                                              • Section 64(1AA): inserted, on , by section 7 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                                              • Section 64(1A): inserted, on , by section 13 of the Land Transport Amendment Act 2009 (2009 No 17).
                                              • Section 64(1A): amended, on , by section 16(1) of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
                                              • Section 64(1A): amended, on , by section 15(1) of the Land Transport (Enforcement Powers) Amendment Act 2009 (2009 No 36).
                                              • Section 64(1A)(a)(ii): amended, on , by section 15(2) of the Land Transport (Enforcement Powers) Amendment Act 2009 (2009 No 36).
                                              • Section 64(1AB): inserted, on , by section 16(2) of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
                                              • Section 64(1B): inserted, on , by section 13 of the Land Transport Amendment Act 2009 (2009 No 17).
                                              • Section 64(2): amended, on , by section 16(3) of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
                                              • Section 64(2): amended, on , by section 5(1) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).
                                              • Section 64(3): substituted, on , by section 28 of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).
                                              • Section 64(3)(a)(iii): amended, on , by section 15 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                                              • Section 64(3)(b)(iii): amended, on , by section 15 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                                              • Section 64(3A): inserted, on , by section 35 of the Land Transport Amendment Act 2005 (2005 No 77).
                                              • Section 64(3A)(a): amended, on , by section 16(4) of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).
                                              • Section 64(4)(a): amended, on , by section 5(2) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).
                                              • Section 64(6): inserted, on , by section 16(5) of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).