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Land Transport Act 1998

Driving offences involving drink or drugs, and penalties and procedures - Evidential provisions

77: Presumptions relating to alcohol-testing

You could also call this:

“Rules about breath and blood tests for alcohol when driving”

When you take a breath test or give a blood sample for alcohol testing, the law makes some important assumptions. If you take a breath test, the amount of alcohol in your breath at the time of the alleged offence is assumed to be the same as what the test shows. Similarly, if you give a blood sample, the amount of alcohol in your blood at the time of the alleged offence is assumed to be the same as what’s found in the sample.

If you have a positive breath test, the police officer must tell you right away that the test was positive. They must also explain what could happen if you don’t ask for a blood test within 10 minutes. If you do ask for a blood test within that time and follow the rules for getting one, then the breath test result can’t be used as evidence against you in court for certain offences.

The police officer must tell you that the positive breath test could be enough evidence to convict you if: your breath alcohol level is over 400 micrograms per litre; you’re under 20 and your level is over 150 micrograms per litre; or you have a special licence that doesn’t allow any alcohol. They must also tell you that if you’re under 20 and have some alcohol in your breath but less than 150 micrograms per litre, you might have committed a less serious offence.

If your breath test shows more than 250 but not more than 400 micrograms of alcohol per litre of breath, and you’re 20 or older without a special licence, some of these rules don’t apply.

If you don’t stay at the test location until you can be told the result, the police don’t have to tell you these things. If you refuse to take a required test without a good reason, this can be used as evidence against you in court.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM434850.

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

77Presumptions relating to alcohol-testing

  1. For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.

  2. For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.

  3. Except as provided in subsections (3B) and (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

  4. the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained,—
    1. that the test was positive; and
      1. of the consequences specified in subsection (3A), so far as applicable, if he or she does not request a blood test within 10 minutes; or
      2. the person who underwent the test—
        1. advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and
          1. complies with section 72(2).

          2. The consequences referred to in subsection (3)(a)(ii) are—

          3. that the positive test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act if—
            1. the test indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath; or
              1. the person is younger than 20 and the proportion of alcohol in the person's breath exceeds 150 micrograms of alcohol per litre of breath; or
                1. the person holds an alcohol interlock licence or a zero alcohol licence:
                2. that the positive test could of itself be conclusive evidence that the person has committed an infringement offence against this Act if the person is younger than 20 and the test indicates that the person's breath contains alcohol but the proportion of alcohol does not exceed 150 micrograms of alcohol per litre of breath.

                  1. Subsection (3) does not apply if the result of a positive evidential breath test indicates that the proportion of alcohol in a person's breath (other than a person who is apparently younger than 20 or who holds an alcohol interlock licence or a zero alcohol licence) exceeds 250 micrograms of alcohol per litre of breath, but does not exceed 400 micrograms of alcohol per litre of breath.

                  2. Subsection (3)(a) does not apply if the person who underwent the test fails or refuses to remain at the place where the person underwent the test until the person can be advised of the result of the test.

                  3. Repealed

                  4. If it is proved in proceedings for an offence against section 60 that the defendant failed or refused to comply with section 13 without reasonable cause, that failure or refusal may be treated as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defendant, concerning the defendant's condition at the time of the alleged offence.

                  Compare
                  Notes
                  • Section 77(3): replaced, on , by section 13 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                  • Section 77(3A): inserted, on , by section 13 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                  • Section 77(3B): inserted, on , by section 13 of the Land Transport Amendment Act (No 2) 2014 (2014 No 57).
                  • Section 77(5): repealed, on , by section 9(2) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).