How to defend yourself against a drink-driving charge within NZ

Introduction

A number of defences may be open to you if you've been charged with a drink-driving offence. You should consult a lawyer to maximise your chances of taking advantage of any possible defence. 

What breath or blood tests can the New Zealand Police make me undergo?

A drink-driving charge will usually start with a preliminary passive breath test, or "sniffer" test. This is where the Police officer holds a device near your mouth to detect whether there is any alcohol in your breath.

If you fail the passive breath test or refuse to undergo it, the Police will then require you to undergo a breath-screening test. For this test, you'll have to blow into a bag or a handheld device that indicates how much you've had to drink.

A Police officer can stop you at any time while you're driving and ask you to take a passive breath test or a breath-screening test. The officer doesn't have to suspect that you're over the limit to get you to take one of these tests.

The result of a breath-screening test can't be used as evidence in Court. But if you fail the test you can be required to go with the Police officer to another place for an evidential breath test or an evidential blood test, or both. The results of these evidential tests can be used to support a charge against you.

Is it a criminal offence to refuse to undertake a test?

It's not an offence to refuse to take a "sniffer" or breath-screening test. But if you do refuse the officer can require you to go with him or her to have an evidential breath test. If you refuse to go with the officer for this test, you commit an offence and you can be arrested.

If you take the breath-screening test, it's an offence to leave before the results are obtained. You can be arrested if you do this.

It's an offence to refuse to accompany the officer to undergo an evidential blood test, or to accompany the officer but then leave before having the test, or to have the test but leave before the Police have the results of the test.

What if I wasn't allowed to talk to a lawyer?

You have the right under the NEW ZEALAND BILL OF RIGHTS ACT 1990 to get legal advice before you give any evidence, which includes undergoing an evidential breath or blood test. The Police must inform you that you have the right to contact a lawyer by telephone, and they must allow you to do this without delay. The Police should provide you with a list of lawyers who are available (under the Police Detention Legal Assistance scheme) to give free legal advice over the phone, day or night.

What if the Police don't follow the proper procedures in carrying out the tests?

Small mistakes by the Police in following the proper procedure will not always mean that the evidence against you will be ruled out. It's no defence to a charge against you that the Police didn't follow the testing procedures exactly, so long as there was reasonable compliance with these procedures. The court will weigh up how important the breach is compared with the value of the evidence.

What if the result of the breath-testing was incorrect?

It's no defence to a charge of excess breath-alcohol or blood-alcohol that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistake or likely mistake meant that the Police weren't entitled to require an evidential breath test.

Further, it's no defence to a charge of failing or refusing to supply a blood specimen that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistake or likely mistake meant that the Police weren't entitled to require an evidential breath test or a blood test.

What if giving a blood sample would endanger my health in some way?

It's a defence to a charge of refusing to supply a blood specimen if the court is satisfied that taking a blood specimen would have been harmful to your health.

Other defences

Other possible defences – such as necessity – are invoked only infrequently, and circumstances must be exceptional for them to succeed.

Cautionary notes

• When faced with a drink-driving charge, it's important to know your rights and to know the procedure that the Police are required to follow. Mistakes made by the Police may provide you with a defence. You should therefore get advice from a lawyer who is familiar with this area of law.