Land Transport (Drug Driving) Amendment Bill

Land Transport (Drug Driving) Amendment Bill

Government Bill

317—1

Explanatory note

General policy statement

Addressing drug driving is necessary to reduce road trauma and make our roads safer. In 2014, 18 people were killed in crashes where the driver had consumed drugs other than alcohol before driving. By 2018, the number of people killed in crashes where the driver had consumed drugs other than alcohol before driving had risen to 95. It is clear that our current approach is not effective in deterring drug driving on our roads.

The roadside oral fluid testing regime

The Land Transport (Drug Driving) Amendment Bill establishes a new random roadside oral fluid testing regime. This oral fluid testing regime would sit alongside the current compulsory impairment test (CIT) approach to drug driving. Under the new regime, a police officer would be able to stop any driver of a motor vehicle and administer an oral fluid test without cause to suspect a driver has consumed drugs, consistent with the existing approach to drink driving enforcement.

The Bill proposes that drivers who fail 2 consecutive oral fluid tests would incur an infringement penalty, aligned to the drink driving infringement penalty.

Cut-off thresholds would be set in the oral fluid devices for the detection of drugs, although these are not specified in the Bill. These thresholds would avoid the risk of penalising drivers who have accidental or passive exposure to drugs, have low residual levels of a drug, or consumed doses of some prescription or over-the-counter medicines that are unlikely to impair driving.

A driver who passes the first oral fluid test (or passes a second test after failing a first), and is not required to carry out a CIT, would be free to go.

Drivers who fail 2 consecutive oral fluid tests can elect to undertake an evidential blood test, and would be subject to both infringement and criminal penalties, depending on the levels of drugs in their blood sample. The medical defence will be available to drivers who elect a blood test.

The CIT process

Once a police officer has stopped a driver, the officer may require the driver to carry out a CIT if the officer has good cause to suspect a driver has consumed drugs. An officer cannot require a driver to undergo a CIT if the driver has returned a first positive oral fluid test or 2 consecutive positive oral fluid tests for a single drug. A driver who fails the first oral fluid test for more than 1 drug can be required to undergo a CIT.

A driver who fails a CIT would be required to take an evidential blood test and would be subject to both infringement and criminal penalties, depending on the levels of drugs in their blood sample.

A driver who passes the CIT would be free to go after the test is completed. Police officers would not be able switch to the oral fluid testing process after they have commenced the CIT process.

Criminal limits based on impairment

The Bill proposes that criminal limits for qualifying drugs be specified for analysis of blood samples, informed by advice from an expert panel of medical and scientific professionals.

These criminal limits would be specified in a Schedule, and would be aligned with the drink driving measure of impairment equivalent to a blood alcohol concentration of 80 mg per 100 ml. The Bill as introduced does not contain these limits, but includes a power for limits of qualifying drugs to be added or amended through Order in Council, subject to safeguards (including a parliamentary confirmation process). The intention is for criminal limits to be added through a supplementary order paper before the Bill is enacted.

Evidential blood tests could be used to test for any qualifying drug as defined in the Land Transport Act 1998.

Qualifying drugs without criminal limits

A wide range of impairing drugs are consumed and could be consumed by drivers in New Zealand. Only a relatively small number of these drugs would, at least initially, have criminal limits set for them.

The Bill proposes to create 2 separate offence pathways, depending on whether or not a driver has undergone a CIT.

Drivers would continue to be charged with a criminal offence following a failed CIT where the driver’s blood sample contains the presence of any qualifying drug without criminal limits set.

An infringement penalty would apply for the presence of any qualifying drugs that do not have any limits set when impairment has not been established through a CIT. Criminal and criminal combination offences would continue to apply to drivers who have not gone through the CIT process if any qualifying drugs with criminal limits were found in their system.

Injured drivers and drivers involved in a crash

Enforcement officers would continue to be able to require injured drivers to provide an evidential blood sample in a hospital or medical centre.

A driver involved in a crash but not injured would be required to take an evidential blood test if the driver produces 2 positive oral fluid test results and an enforcement officer has good cause to suspect that another person has been injured or killed as a result of the crash.

The offence and penalty regime for hospitalised drivers and drivers involved in a crash would be aligned with the oral fluid testing regime.

Offences and penalties

The Bill proposes to establish both infringement and criminal offences, depending on the testing process and the quantity of drugs found in a driver’s system. In recognition of the additional road safety risk of driving after consuming multiple drugs (or drugs and alcohol), the Bill also introduces an infringement combination offence and a criminal combination offence, which would apply in different scenarios.

The Bill proposes to establish the following offences and penalties:

  • an infringement offence for driving or attempting to drive a motor vehicle on a road with a specified drug in the person’s blood at the infringement level ($200 infringement fee, 50 demerit points and a 12-hour suspension from driving):

  • an infringement combination offence for driving or attempting to drive a motor vehicle on a road with more than 1 substance in the person’s oral fluid, or more than 1 substance in the person’s blood below the criminal limit ($400 infringement fee, 75 demerit points and a 12-hour suspension from driving):

  • a criminal offence for driving or attempting to drive a motor vehicle on a road with a specified drug in the person’s blood at or above the criminal level (a prison term of up to 3 months or a fine of up to $4,500, and a mandatory disqualification from driving of 6 months or more):

  • a criminal combination offence for driving or attempting to drive a motor vehicle on a road with multiple substances in the person’s blood and at least 1 at or above the criminal limit (a prison term of up to 6 months or a fine not exceeding $4,500, and a mandatory disqualification from driving of 9 months or more):

  • a criminal offence for third and subsequent convictions for drug driving aligned with current offences and penalties for drink and drug driving (a prison term of up to 2 years or a fine not exceeding $6,000, and a mandatory disqualification from driving for 1 year or more):

  • a criminal offence if a driver has a blood drug level at the infringement level, and has caused the injury or death of a person (a prison term of up to 3 years or a fine not exceeding $10,000 and a mandatory disqualification from driving of 1 year or more).

Medical defence available in certain circumstances

The Bill extends the existing medical defence to be available to drivers who have taken prescription drugs in accordance with their prescription and any instructions from a health practitioner or from the manufacturer of the qualifying drug and have provided a blood sample through an evidential blood test.

Harm minimisation approach to drug driving

The regime proposes a harm minimisation approach to drug driving. Compulsory referrals for assessment to drug education or rehabilitation programmes would be required for second criminal offences in some situations and all third and subsequent criminal offences.

Departmental disclosure statement

The Ministry of Transport is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Transport prepared a regulatory impact statement in December 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for when the Bill comes into force. The Bill is to come into force 12 months after the date of Royal assent.

Part 1Amendments to Land Transport Act 1998

Clause 3 provides for the Part to amend the Land Transport Act 1998.

Clause 4 amends section 2(1) to insert new definitions relating to oral fluid testing and amend the definitions of compulsory impairment test, positive, and qualifying drug.

Amendments to primary responsibilities concerning use of drugs

Clause 5 replaces section 11A to provide that a person may not drive or attempt to drive if their oral fluid indicates, or their blood contains, evidence of the use of a qualifying drug.

Clause 6 amends section 13 to add an obligation to comply with new sections 71A, 71B, 71C, 71E, and 71F (which relate to enforcement procedures relating to drug testing) and all lawful requirements, directions, and requests made by an enforcement officer under those sections.

Drug-related offences and penalties

Clause 7 consequentially amends the heading to Part 5 to reflect that offences and penalties related to the use of drugs appear in Part 6 rather than Part 5.

Clause 8 consequentially amends the cross-heading above section 34 to reflect that the offences relating to driving dealt with in sections 34 to 39 exclude offences involving drugs as well as alcohol.

Clause 9 replaces section 57A, which provides that a person who drives or attempts to drive commits an offence if the person fails to satisfactorily complete a compulsory impairment test and their blood contains evidence of the use of a qualifying drug.

New section 57A(1) extends this offence to provide that it is also an offence to drive or attempt to drive with blood containing evidence of the use of a qualifying drug listed in new Schedule 5 (whether or not the person was required to undergo a compulsory impairment test before the blood specimen was taken) if the proportion of the drug in the person’s blood equals or exceeds the threshold specified for the drug in new Schedule 5.

New section 57A(2) and (3) creates new infringement offences for driving or attempting to drive with blood that contains, or oral fluid that indicates, the use of a qualifying drug in circumstances that do not constitute an offence against new section 57A(1).

New section 57B(1) creates a new offence of driving or attempting to drive while a person’s blood contains evidence of 2 or more qualifying drugs if—

  • the proportion of 1 or more of drugs in the person’s blood equals or exceeds the level specified in new Schedule 5; or

  • 1 or more of the qualifying drugs are not listed in new Schedule 5 and the blood specimen was taken after the person failed to satisfactorily complete a compulsory impairment test.

New section 57B(2) and (3) creates new infringement offences of driving or attempting to drive while a person’s blood contains evidence of, or their oral fluid indicates, the use of 2 or more qualifying drugs in circumstances that do not constitute an offence against new section 57B(1).

New section 57C(1) creates a new offence of driving or attempting to drive while a person’s blood contains both alcohol and evidence of a qualifying drug if—

  • the proportion of alcohol in the person’s blood exceeds specified blood-alcohol levels; or

  • the proportion of a qualifying drug in the person’s blood equals or exceeds the level specified for that drug in new Schedule 5; or

  • the blood specimen was taken after the person failed to satisfactorily complete a compulsory impairment test and there is a qualifying drug in the person’s blood that is not listed in new Schedule 5.

New section 57C(2), (3), and (4) creates new infringement offences of driving or attempting to drive while the person’s blood or breath contains alcohol while the person’s blood contains evidence of, or the person’s oral fluid indicates, the use of a qualifying drug in circumstances that do not constitute an offence against new section 57C(1).

New section 57D sets the maximum penalties on conviction for offences against new sections 57A(1), 57B(1), and 57C(1). The maximum penalty on conviction for an offence against new section 57A(1) is the same as for an offence against existing section 57A(1). The maximum penalty on conviction for an offence against new section 57B(1) or 57C(1) is imprisonment for a term not exceeding 6 months or a fine not exceeding $4,500. This is higher than the maximum penalty on conviction for an offence against new section 57A(1) (imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500). The mandatory disqualification from driving is also longer (9 months instead of 6 months).

Clause 10 consequentially amends section 58(1)(b) for consistency with new section 61(2)(b) (as inserted by clause 13(1)) and section 62(1)(b) (as amended by clause 14(1)).

Clause 11 amends section 59, which provides for an offence of failing or refusing to remain at a specified place or to accompany an enforcement officer. Clause 11 expands sections 59 so that it applies if a person fails or refuses to remain at a place where the person underwent an oral fluid test or to accompany an enforcement officer when required to do so under any of new sections 71A, 71B, and 71E.

Clause 12 consequentially amends section 60, which provides for an offence of failing or refusing to permit a blood specimen to be taken or to undergo a compulsory impairment test.

Clause 13 amends section 61, which provides for the offences of causing bodily injury to, or the death of, a person while driving with blood-alcohol above specified limits or while under the influence of drink or a drug to such an extent that the person is incapable of having proper control of the vehicle. Clause 13 expands section 61 to provide that it is also an offence against section 61 to cause bodily injury to, or the death of, a person while driving if—

  • the proportion of a qualifying drug equals or exceeds the level specified for the drug in new Schedule 5; or

  • the person failed to satisfactorily complete a compulsory impairment test and there is a drug in the person’s blood that is not listed in new Schedule 5.

Clause 14 amends section 62, which provides for further offences of causing injury to, or the death of, a person while driving while under the influence of a qualifying drug or alcohol or if the person fails a compulsory impairment test and has a qualifying drug in the person’s blood. New section 62(1B) replaces the offence in existing section 62(1B) and expands the offence to provide that it is also an offence against new section 62(1B) to cause injury to, or the death of, a person while the person has a qualifying drug in the person’s blood if the proportion of the drug in the person’s blood is less than the level specified for that drug in new Schedule 5 or the person has not been required to undergo a compulsory impairment test.

Clause 15 consequentially amends section 64, which provides for defences to proceedings for offences relating to drug-driving, to ensure that the defences apply to proceedings against new sections 57A, 57B, or 57C.

Clause 16 amends section 65AB, which specifies which offences are qualifying offences for the purpose of an alcohol interlock sentence, to provide that new section 57C(1) is a qualifying offence because intoxication is an element of that offence.

Blood test fee

Clause 17 amends section 67, which provides for the circumstances in which a person is liable to pay a blood test fee and any associated medical expenses following the taking of a blood specimen. Clause 17(1) amends section 67(1)(a) to restrict the application of the existing provision to the taking of blood specimens following breath testing for alcohol. New section 67(1)(aa) provides for the circumstances in which a person is liable to pay a blood test fee and any associated medical expenses if a person elects to, or is required to, permit the taking of a blood specimen after undergoing oral fluid testing for drugs or a compulsory impairment test.

Enforcement procedures

Clause 18 amends section 68, which provides for the enforcement procedures for breath screening tests, to provide that 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 and regardless of the result of any oral fluid test.

Clause 19 consequentially amends the heading to section 70A, which provides for the circumstances in which a person has a right to elect a blood test, to clarify that the provision only relates to the right to elect a blood test following a positive evidential breath test. New section 71D provides for the right to elect a blood test following 2 positive oral fluid tests.

Clause 20 replaces section 71A, which provides for the enforcement procedures for compulsory impairment tests. New section 71F substantially re-enacts section 71A with an amendment to provide that an enforcement officer may exercise their powers under that section in addition to oral fluid tests in the circumstances specified in new section 71F(5)(b) and (c).

New section 71A provides for the circumstances in which an enforcement officer may require a person to undergo a first oral fluid test and provides for the enforcement procedures in relation to a first oral fluid test.

New section 71B provides that an enforcement officer must require a person to undergo a second oral fluid test if the first oral fluid test result is positive and provides for the enforcement procedures in relation to a second oral fluid test.

New section 71C provides that a person must undergo a further oral fluid test if either the first or second oral fluid test fails to produce a result. The application of new section 71C is limited to 1 further test for each of the first oral fluid test and the second oral fluid test.

New section 71D provides that a person has the right to elect a blood test if a person has undergone 2 oral fluid tests and the results of both tests indicate the use of 1 or more of the same qualifying drugs.

New section 71E provides for the circumstances in which a person may be required to accompany an enforcement officer to undergo a blood test after the person has undergone, or was required to undergo, an oral fluid test.

Clause 21 inserts a new cross-heading above section 72 to indicate that sections 72 to 74 deal with enforcement procedures relating to the taking of blood specimens.

Clause 22 amends section 72, which provides for circumstances in which a person must permit the taking of a blood specimen (other than in a hospital or medical centre), to align with the circumstances in which a person must accompany an enforcement officer for the purposes of a blood test in new section 71E.

Clause 23 replaces section 73A. New section 73A expands existing section 73A to provide that neither a blood specimen nor an oral fluid sample may be used as evidence of the use of a controlled drug in a prosecution for an offence against the Misuse of Drugs Act 1975. New section 73A(1) also clarifies that evidence of alcohol or the use of a qualifying drug in a blood specimen taken under section 72 or 73 can be used as evidence in a prosecution for any offence against the Land Transport Act 1998.

Clause 24 consequentially amends the heading to section 75 to clarify that certificates may be used in drug-driving proceedings as well as blood-alcohol proceedings.

Clause 25 inserts new section 77A to provide for the presumptions that apply in proceedings for offences involving evidence of the use of drugs. The presumptions are broadly equivalent to the presumptions relating to alcohol testing, except that they provide that an oral fluid sample is not admissible in evidence for any proceedings other than the infringement offences in new sections 57A(3), 57B(3), and 57C(4).

Clause 26 amends section 79, which provides for the circumstances in which certificates in blood-alcohol and drug-driving proceedings are not admissible in proceedings, to add to the circumstances in which a court may make an order that certain persons involved in the giving of a certificate that certified the presence of or a specified proportion of a qualifying drug must appear as a witness in proceedings.

Mandatory prohibition from driving for 12-hour period

Clause 27 inserts new section 94A to provide that an enforcement officer must forbid a person from driving for a 12-hour period if the person has undergone 2 oral fluid tests and it appears to the enforcement officer that the results of both tests are positive.

Clause 28 consequentially amends section 95, which provides for the circumstances in which an enforcement officer must suspend a person’s driver licence for 28 days, to provide than an enforcement officer may do so if the person’s blood contains a qualifying drug that is listed in new Schedule 5 and the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule or the person failed to satisfactorily complete a compulsory impairment test when required to do so and their blood contains evidence of the use of a qualifying drug that is not listed in new Schedule 5.

Impoundment of vehicles

Clause 29 consequentially amends section 96, which provides for the circumstances in which an enforcement officer must seize and impound a motor vehicle for 28 days, to provide that an enforcement officer may do so if a person’s blood contains a qualifying drug that is listed in new Schedule 5 and the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule or the person failed to satisfactorily complete a compulsory impairment test when required to do so and their blood contains evidence of the use of a qualifying drug that is not listed in new Schedule 5.

Clause 30 consequentially amends section 99, which provides for the circumstances in which a court may make an order to reduce the disqualification or disqualifications of a person from holding a driver licence, to expand the application of the provision to disqualifications under new sections 57B(1) and 57C(1).

Powers of entry and immobilisation

Clause 31 consequentially amends section 119, which provides for the circumstances in which an enforcement officer may, without warrant, enter any premises for the purpose of alcohol-testing, to provide that it also applies for the purpose of drug-testing.

Clause 32 consequentially amends section 120, which provides an enforcement officer with a power to arrest a person without warrant in certain circumstances relating to alcohol- and drug-related offences, to replace references to section 71A with references to new section 71F (the new section providing for enforcement procedures for compulsory impairment tests).

Clause 33 amends section 121, which provides for the circumstances in which an enforcement officer may immobilise a vehicle or forbid a person from driving a vehicle for a specified time, to add that an enforcement officer may do so if the enforcement officer has reasonable grounds to believe the person has failed or refused to permit a blood specimen to be taken when required to do so after the person also failed or refused to undergo an evidential breath test or oral fluid test.

Clause 34 amends section 167, which contains the empowering provision for regulations under the Act relating to (among other things) infringement offences, to provide that the maximum number of demerit points that may be set by regulations in the case of an offence against new section 57B or 57C is 75.

Clause 35 inserts new sections 167A and 167B to allow the level specified in new Schedule 5, which determines the proportion of a qualifying drug in a person’s blood at or over which a person commits an offence against new sections 57A(1), 57B(1), and 57C(1), to be set or amended by Order in Council.

New section 167A(2) requires the Minister of Transport and the Minister of Police seek advice from independent experts and have regard to the purpose of aligning the level specified in new Schedule 5 as far as practicable with a blood-alcohol limit of 80 mg of alcohol per 100 ml of blood.

New section 167A(5) provides that an Order in Council made under new section 167A(1) is a confirmable instrument.

New section 167B requires the independent experts appointed for the purposes of new section 167A to have appropriate medical and scientific expertise. New section 167B also provides that the function of the independent experts is—

  • to carry out medical and scientific evaluations of qualifying drugs; and

  • to advise the Ministers on the specific effects of qualifying drugs and the drug-concentration levels in the blood that are likely to impair a person’s driving to a similar extent as a blood alcohol level of 80 mg of alcohol per 100 ml of blood.

Clause 36 inserts new section 168D which provides that the Minister of Police may approve an oral fluid test or testing device by notice in the Gazette only after—

  • consulting with the Minister of Transport and the Minister of Research, Science and Innovation; and

  • having regard to the accuracy of the test; and

  • being satisfied that the test will return a positive result only if the testing device detects a presence of a qualifying drug at a level that indicates recent use of a qualifying drug specified in the notice.

Analysing oral fluid samples for statistical or research purposes

Clause 37 consequentially amends section 209, which relates to the taking of blood specimens and other bodily samples for statistical or research purposes, to replace the references to “saliva” with references to “oral fluid”.

Clause 38 amends section 209A, which relates to analysing blood specimens for statistical research purposes related to the use of drugs or alcohol, to expand its application to analysing oral fluid samples for the same purposes.

Transitional, savings, and related provisions

Clause 39 inserts new Part 2 into Schedule 1. New Part 2 provides for transitional matters.

Level of qualifying drugs at and over which person commits offence

Clause 40 inserts new Schedule 5. New Schedule 5 will set the levels at or over which a person commits an offence against new section 57A(1), 57B(1), or 57C(1).

Part 2Related and consequential amendments

Subpart 1—Amendments to Acts

This subpart provides for consequential amendments to the Legislation Act 2012 and the Sentencing Act 2002.

Subpart 2—Amendments to Land Transport (Offences and Penalties) Regulations 1999

This subpart amends the Land Transport (Offences and Penalties) Regulations 1999 to set the infringement fees and demerit points for the new infringement offences under new sections 57A to 57C.