Land Transport (Drug Driving) Amendment Bill

20 Section 71A replaced (Requirement to undergo compulsory impairment test)

Replace section 71A with:

Enforcement procedures for offences involving use of qualifying drugs

71A Who must undergo first oral fluid test

(1)

An enforcement officer may require any of the following persons to undergo a first oral fluid test without delay:

(a)

a driver of, or a person attempting to drive, a motor vehicle on a road:

(b)

a person who the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:

(c)

if an accident has occurred involving a motor vehicle,—

(i)

the driver of the vehicle at the time of the accident; or

(ii)

if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person who the officer has good cause to suspect was in the motor vehicle at the time of the accident.

(2)

An enforcement officer—

(a)

may require a person to undergo an a first oral fluid test whether or not the person has already undergone a breath screening test under section 68 or an evidential breath test under section 69 and regardless of the outcome of any such tests result (or failure to produce a result) of any such oral fluid test or tests; but

(b)

must not require a person to undergo an a first oral fluid test if an enforcement officer has required the person to undergo a compulsory impairment test under section 71F(1).

(3)

An enforcement officer may require the person—

(a)

to remain in the place where stopped to undergo the first oral fluid test; or

(b)

if it is not practicable for the person to undergo an oral fluid test at the place where stopped, to accompany an enforcement officer to any other a place where it is likely that the person can undergo a first oral fluid test.

(3A)

If it is not practicable for a person to undergo a first oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (3)(b), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a first oral fluid test.

(4)

An enforcement officer who requires a person to undergo a first oral fluid test under this section must, without delay, advise the person that,—

(a)

if the person refuses to undergo a first oral fluid test under this section or a second oral fluid test under section 71B, the person will be required to permit the taking of a blood specimen under section 72(1)(a)(e); and

(b)

if the result of a blood test indicates the presence of alcohol or 1 or more qualifying drugs in the person’s blood, the person may be issued with an infringement offence notice or charged with an offence, depending on the proportion of the alcohol or qualifying drugs in the person’s blood and the type of qualifying drugs; and

(c)

the person may be liable to pay a blood test fee and associated medical costs if the result of the blood test establishes that the person has committed an offence against section 57A(1), 57B(1), or 57C(1) or an infringement offence against section 57A(2), 57B(2), or 57C(2).

(5)

A person must—

(a)

accompany an enforcement officer to a place when required to do so under this section:

(b)

if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to undergo an oral fluid test under this section:

(c)

if the person has undergone an oral fluid test under this section, remain at the place where the person underwent the test until after the result of the test is ascertained.

(6)

An enforcement officer may arrest without warrant a person who contravenes subsection (5).

(7)

An enforcement officer may require a person who has been arrested under subsection (6) and taken to or detained at a place to undergo a first oral fluid test at that place.

(8)

An enforcement officer may not require a person who is in a hospital or medical centre as a result of an accident involving a motor vehicle to undergo an oral fluid test under this section.

71B Who must undergo second oral fluid test

(1)

An enforcement officer must require a person to undergo a second oral fluid test without delay if the person has undergone a first oral fluid test and the result of the first oral fluid test is positive unless the person is instead required to undergo a compulsory impairment test in the circumstances described in section 71F(5).

(2)

An enforcement officer may require the person—

(a)

to remain in the place where the person underwent the first oral fluid test to undergo the second oral fluid test; or

(b)

if it is not practicable for the person to undergo a second oral fluid test at the place where the person underwent the first oral fluid test, to accompany an enforcement officer to any other a place where it is likely that the person can undergo a second oral fluid test.

(2A)

If it is not practicable for a person to undergo a second oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (2)(b), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a second oral fluid test.

(3)

A person must—

(a)

accompany an enforcement officer to a place when required to do so under this section:

(b)

if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to undergo an oral fluid test under this section:

(c)

if the person has undergone an oral fluid test under this section, remain at the place where the person underwent the test until after the result of the test is ascertained.

(4)

An enforcement officer may arrest without warrant a person who contravenes subsection (3).

(5)

An enforcement officer may require a person who has been arrested under subsection (4) and taken to or detained at a place to undergo a second oral fluid test at that place.

71C Person must undergo further oral fluid test if either first or second oral fluid test fails to produce result

(1)

An enforcement officer must require a person to undergo without delay a further oral fluid test if—

(a)

a first oral fluid test carried out under section 71A fails to produce a result:

(b)

a second oral fluid test carried out under section 71B fails to produce a result.

(2)

A requirement under subsection (1) is deemed,

(a)

in the case of a person who underwent a first oral fluid test that failed to produce a result, to be a requirement under section 71A:

(b)

in the case of a person who underwent a second oral fluid test that failed to produce a result, to be a requirement under section 71B.

(3)

If for any reason a further oral fluid test under subsection (1) fails to produce a result, the result of the further oral fluid test is deemed to have produced a result that is not positive.

(2)

A person must remain at the place where the person underwent the test that failed to produce a result until after the result of the further oral fluid test is ascertained.

(3)

An enforcement officer may arrest without warrant a person who contravenes subsection (2).

(4)

An enforcement officer may require a person who has been arrested under subsection (3) and taken to or detained at a place to undergo a further oral fluid test at that place.

(5)

A positive result of a further oral fluid test required under subsection (1) must,

(a)

if required following a first oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the first oral fluid test; or

(b)

if required following a second oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the second oral fluid test.

(6)

A person may be required to undergo only 1 further oral fluid test under subsection (1).

71D Person has right to elect blood test after 2 positive oral fluid tests

(1)

A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77A(3)(a), to elect to have a blood test to assess the proportion of a qualifying drug in the person’s blood if—

(a)

the person has undergone a first oral fluid test and a second oral fluid test that have produced positive results; and

(b)

the results of both tests indicate the use of 1 or more of the same qualifying drugs.

(2)

An enforcement officer who advises a person of the matters specified in section 77A(3)(a) must also, without delay, advise the person that if the person elects to have a blood test the person may be liable to pay a blood test fee and associated medical costs if the result of the blood test establishes that the person has committed an offence against section 57A(1), 57B(1), or 57C(1) or an infringement offence against section 57A(2), 57B(2), or 57C(2).

71E Person may be required to accompany enforcement officer to undergo blood test

(1)

An enforcement officer may require the following persons to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential blood test when required to do so by the officer:

(a)

a person who fails or refuses to undergo an oral fluid test without delay after having been required to do so by the officer under any of sections 71A to 71C:

(b)

a person who has undergone 2 oral fluid tests under any of sections 71A to 71C a first oral fluid test and a second oral fluid test that have produced positive results if—

(i)

the person was the driver of a motor vehicle at the time an accident occurred involving the motor vehicle or an enforcement officer has good cause to suspect that the person was in the motor vehicle at the time of the accident; and

(ii)

the enforcement officer has good cause to suspect that another person has been injured or killed as a result of the accident:

(c)

a person who has elected to have a blood test under section 71D:

(d)

a person who fails to complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when the person is required to do so by an enforcement officer under section 71F.

(1A)

If it is not practicable for a person to undergo a blood test at a place to which the person has accompanied an enforcement officer under subsection (1), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a blood test.

(2)

The person must—

(a)

accompany the enforcement officer to a place when required to do so under this section:

(b)

if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to provide a blood specimen for collection under section 72 or 73.

(3)

An enforcement officer may arrest without warrant a person who contravenes subsection (2).

71F Who must undergo compulsory impairment test

(1)

An enforcement officer may require any of the following persons to undergo a compulsory impairment test given by an enforcement officer trained to give the test if the enforcement officer has good cause to suspect that the person has consumed a drug or drugs:

(a)

a driver of, or a person attempting to drive, a motor vehicle on a road:

(b)

a person who the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:

(c)

if an accident has occurred involving a motor vehicle,—

(i)

the driver of the vehicle at the time of the accident; or

(ii)

if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person who the officer has good cause to suspect was in the motor vehicle at the time of the accident.

(2)

An enforcement officer may require a person specified in subsection (1) to—

(a)

remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or

(b)

accompany an enforcement officer to another place to undergo the compulsory impairment test if it would enhance road safety, personal safety, the person’s privacy, or the giving or taking of the test.

(3)

A person who has undergone a compulsory impairment test must remain at the place where the person underwent the test until the result of the test is ascertained.

(4)

An enforcement officer may arrest a person without warrant if the person refuses or fails to comply with subsection (2) or (3).

(5)

An enforcement officer may exercise the powers in subsections (1) and (2) in any of the following circumstances:

(a)

in addition to any breath screening tests under section 68 or evidential breath tests under section 69 and regardless of the outcome of any such tests:

(b)

in addition to an oral fluid test under any of sections 71A to 71C if the oral fluid test does not produce a positive result but the enforcement officer has good cause to suspect that the person has consumed a qualifying drug:

(c)

in addition to a first oral fluid test under section 71A that produces a positive result and indicates the use of more than 1 qualifying drug.

(5)

An enforcement officer may exercise the powers in subsections (1) and (2) in addition to any of the following:

(a)

any breath screening test, regardless of the result of the test (or a failure of the test to produce a result):

(b)

any evidential breath test, regardless of the result of the test (or a failure of the test to produce a result):

(c)

a first oral fluid test that

(i)

does not produce a positive result; or

(ii)

produces a positive result that indicates the use of more than 1 qualifying drug:

(d)

a second oral fluid test that does not produce a positive result.

(6)

An enforcement officer must not exercise the powers in subsection (1) and (2) in addition to either of the following:

(a)

a first oral fluid test that produces a positive result that indicates the use of only 1 qualifying drug:

(b)

a second oral fluid test that produces a positive result.

71G Approval of oral fluid tests and oral fluid testing devices

(1)

The Minister of Police may, by notice, approve

(a)

a kind of device that may be used as an oral fluid testing device for the purposes of testing oral fluid for the presence of 1 or more specified qualifying drugs:

(b)

the manner in which an oral fluid test may be carried out by means of an oral fluid testing device.

(2)

Before giving a notice under subsection (1), the Minister of Police must

(a)

consult the Minister of Transport and the Science Minister; and

(b)

have regard to the accuracy of the device; and

(c)

be satisfied that any device proposed to be approved under subsection (1)(a) and used in a manner proposed to be approved under subsection (1)(b) will return a positive result only if the device detects a presence of a qualifying drug at a level that indicates recent use of a specified qualifying drug.

(3)

In determining for the purposes of subsection (2)(c) whether a device will return a positive result only if the device detects a presence of a qualifying drug at a level that indicates recent use of a specified qualifying drug, the Minister must have regard to any relevant New Zealand Standards or joint Australian/New Zealand Standards.

(4)

A notice made under subsection (1) for the purposes of approving a kind of device or a test

(a)

must specify, for each specified qualifying drug, the concentration level of the qualifying drug in the person’s oral fluid at or above which the result of the test will appear positive for that qualifying drug; and

(b)

may

(i)

define an approved device as a device that bears or is associated by its manufacturer with such trade name or number or other expression, or any combination of those things, as may be specified in the notice:

(ii)

provide for a test, or part of a test, to be carried out in accordance with instructions displayed or printed on or by a specified kind of device.

(5)

In the absence of proof to the contrary, a device is to be treated as bearing or being associated with a particular trade name or number or other expression if that name or number or other expression

(a)

appears on the device, whether on a label or otherwise, or is shown on a display panel on the device; or

(b)

is printed out by the device on a card or on paper; or

(c)

appears on printed matter that

(i)

accompanies the device; and

(ii)

is associated with the device or is intended by the manufacturer of the device to be associated with the device; and

(iii)

is issued by or on behalf of the manufacturer.

(6)

In this section, specified qualifying drug means a qualifying drug specified in a notice made under subsection (1).

(7)

A notice made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Enforcement procedures involving taking of blood specimens