Drinking and driving – don’t do it

With an increasing death toll on our roads, catching drink drivers is a priority for the police. No one wants the police on their doorstep with the dreadful news that a loved one won’t be ever coming home.

The drink driving laws are set out in the Land Transport Act 1998. It’s an offence to drive if your breath alcohol limit exceeds 250 micrograms of alcohol per litre of breath or your blood alcohol limit exceeds 50 milligrams of alcohol per 100 millilitres of blood.

New Zealand has a zero alcohol limit for drivers under the age of 20.

It’s an infringement offence if your breath alcohol level is between 250 mcg and 400 mcg or if your blood alcohol level is between 50 mg and 80 mg. For these levels you would be fined and suspended from driving.

If the roadside breath test shows more than 250 mcg you must go with a police officer for an evidential test. You may have the choice of a blood test. There are various legal procedural requirements around this process.

If it’s a first or second offence you’ll generally get a conviction, a fine and a mandatory disqualification from driving for a minimum of six months. If it’s your third or subsequent offence, you’re likely to get a higher fine and mandatory disqualification for a minimum of a year. Recidivist drink drivers, those who keep reoffending, may find themselves off to prison.

The court has the discretion to not impose the mandatory disqualification if there are special reasons relating to the offence. An example may be a life-threatening situation when someone is driving a seriously ill person to the hospital.

Even if you’re not actually driving

The police have successfully prosecuted people sitting in their cars but not actually driving. When it’s not clear-cut as to whether someone has been driving or not, inferences may be drawn from the facts. In one case, a driver was found asleep in the driver’s seat at 4:00am. The headlights were on and the keys were in the ignition. His breath reading was 1,121 mcg of alcohol. The High Court held that an inference could be drawn and the driver’s conviction was upheld.2

Last year, a conviction for driving with excess breath alcohol (third or subsequent) was overturned on an appeal.3 Mr Perry was sitting in the driver’s seat of his car that was parked 10–15 minutes from home. He said he was in his car waiting for his partner to collect him. The Court of Appeal overturned his conviction on the basis his explanation was acceptable as a reasonable possibility.

Practical advice

The best advice when it comes to drink driving isn’t legal, it’s practical. Be aware of the limits and always exercise caution when you’re driving after drinking alcohol. The cost of a taxi fare or staying over with friends should always be the preferred option, or simply don’t drink at all when you’re out.

One more glass of wine is never worth the risk.

2 Danaher v Police HC Auckland CRI-2007-404-97, 3 September 2007

3 Perry v Police [2015] NZHC 2810

Posted: Tue 12 Jul 2016

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