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Land Transport Act 1998

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

77A: Presumptions relating to drug testing

You could also call this:

“What the court thinks about your drug test results”

When you give a blood sample during a drug test, the court will assume that the amount of drugs in your blood at the time of the offence is the same as when your blood was tested.

If you take two oral fluid tests and both show that you’ve used drugs, the court will assume you have drugs in your system unless you can prove otherwise.

However, the results of these oral fluid tests can’t be used as evidence if the police officer doesn’t tell you right away that your second test was positive. They also need to tell you that you’ll be assumed to have broken the law unless you ask for a blood test within 10 minutes.

If you ask for a blood test within 10 minutes and follow the rules for giving a blood sample, the oral fluid test results can’t be used as evidence. But if you don’t stay at the testing place to hear your results, the police don’t have to tell you about them.

Oral fluid test results can only be used as evidence for certain types of offences related to drug driving.

If you refuse to take a test without a good reason, the court might see this as supporting evidence against you or as a way to disagree with evidence you provide about your condition at the time.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS822821.

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

77APresumptions relating to drug testing

  1. 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 73, it is to be conclusively presumed that the proportion of a qualifying drug in the defendant’s blood at the time of the alleged offence was the same as the proportion of the qualifying drug in the blood specimen taken from the defendant.

  2. For the purposes of proceedings for an infringement offence against section 57A(3), 57B(3), 57C(3), or 57C(4), it is to be presumed in the absence of proof to the contrary that a person’s oral fluid contains a qualifying drug if the results of the first oral fluid test and second oral fluid test undergone by the person indicate use of the drug.

  3. However, except as provided in subsection (4), the positive results of a first oral fluid test and a second oral fluid test are not admissible in evidence in proceedings for an infringement offence against section 57A(3), 57B(3), 57C(3), or 57C(4) if—

  4. the person who underwent the tests is not advised by an enforcement officer, without delay after the result of the second oral fluid test is ascertained,—
    1. that the second oral fluid test was positive; and
      1. that the person will be presumed to have committed an infringement offence against this Act if the person 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. 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. The result of an oral fluid test is not admissible in evidence in proceedings for any offence against this Act other than an offence under section 57A(3), 57B(3), 57C(3), or 57C(4).

          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.

          Notes
          • Section 77A: inserted, on , by section 25 of the Land Transport (Drug Driving) Amendment Act 2022 (2022 No 5).