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Land Transport Act 1998

Driving offences involving drink or drugs, and penalties and procedures - Enforcement procedures for offences involving intoxication

68: Who must undergo breath screening test

You could also call this:

“Police can ask you to take a breath test if they think you've been drinking and driving”

You can be asked to take a breath screening test by a police officer in certain situations. This can happen if you’re driving a car on the road or if the officer thinks you’ve just broken a driving law. If there’s been a car accident, the driver or someone the officer thinks was in the car can be tested too.

If you’re in a hospital or medical centre because of a car accident, you can’t be asked to take a breath test there. After you take the test, you need to stay where you are until the results are ready. If you try to leave, the officer can arrest you without a warrant.

The officer might also use a special device near your mouth to check for alcohol on your breath. Whether they use this device or not doesn’t change how valid the breath screening test is.

Even if you’ve already had an oral fluid test (which checks for drugs), you can still be asked to take a breath screening test. The result of the oral fluid test doesn’t matter - you can still be asked to do the breath test.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM434827.

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Part 6 Driving offences involving drink or drugs, and penalties and procedures
Enforcement procedures for offences involving intoxication

68Who must undergo breath screening test

  1. An enforcement officer may require any of the following persons to undergo a breath screening test without delay:

  2. a driver of, or a person attempting to drive, a motor vehicle on a road:
    1. a person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
      1. if an accident has occurred involving a motor vehicle,—
        1. the driver of the vehicle at the time of the accident; or
          1. if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.

          2. An enforcement officer may not require a person who is in a hospital or medical centre as a result of an accident involving a motor vehicle to undergo a breath screening test.

          3. A person who has undergone a breath screening test under this section must remain at the place where the person underwent the test until after the result of the test is ascertained, and an enforcement officer may arrest the person without warrant if the person refuses or fails to remain at that place.

          4. If an enforcement officer is entitled to require a person to undergo a breath screening test, the officer may also require that person to undergo a test using a passive breath-testing device, which test is one where the officer holds a passive breath-testing device near the person's mouth for the purpose of ascertaining whether or not there is any alcohol in the person's breath.

          5. The use or non-use of a passive breath-testing device does not of itself affect the validity of a breath screening test.

          6. An enforcement officer may require a person to undergo a breath screening test whether or not a person has already undergone an oral fluid test under any of sections 71A to 71C and regardless of the result (or failure to produce a result) of any such oral fluid test or tests.

          Compare
          Notes
          • Section 68(2): amended, on , by section 9 of the Land Transport Amendment Act 2016 (2016 No 77).
          • Section 68(6): inserted, on , by section 19 of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).