Government Bill
317—3
As reported from the committee of the whole House
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Hon Michael Wood
The Parliament of New Zealand enacts as follows:
This Act is the Land Transport (Drug Driving) Amendment Act 2020.
This Act comes into force immediately after the expiry of the 12-month period that starts on the date of Royal assent.
This Part amends the Land Transport Act 1998.
(1)
In section 2(1), insert in their appropriate alphabetical order:
blood concentration level means, for a qualifying drug, the proportion of the drug in a person’s blood
evidence of use of a qualifying drug has the meaning set out in section 11A(2)
first oral fluid test means an oral fluid test carried out under section 71A
high-risk level means, for a listed qualifying drug, the blood concentration level specified for the drug in Part 1 of Schedule 5
listed qualifying drug means a qualifying drug listed in Schedule 5
oral fluid test means a test that is carried out—
by means of an oral fluid testing device; and
in a manner approved for that device by the Minister of Police under section 71G
oral fluid testing device means a device of a kind approved by the Minister of Police under section 71G for the purpose of testing oral fluid for the presence of the qualifying drugs specified in the notice a notice made under that section
second oral fluid test means an oral fluid test carried out under section 71B
tolerance level means, for a listed qualifying drug, the blood concentration level specified for the drug in Part 2 of Schedule 5
unlisted qualifying drug means a qualifying drug not listed in Schedule 5
(2)
In section 2(1), definition of compulsory impairment test, replace “determine” with “indicate”.
“determine”
“indicate”
(3)
In section 2(1), replace the definition of positive with:
positive,—
in relation to the result of an evidential breath test, means the result of the test indicates,—
in the case of a person who holds an alcohol interlock licence or a zero alcohol licence, that the breath of the person who underwent the test contains alcohol; or
in the case of a person who is apparently younger than 20, that the breath of the person who underwent the test contains alcohol; or
in the case of any other person, that the proportion of alcohol in the breath of the person who underwent the test exceeds 250 micrograms of alcohol per litre of breath:
in relation to the result of an oral fluid test, means the result of the test indicates that the concentration level of a qualifying drug in the oral fluid of the person who underwent the test equals or exceeds the level specified for the drug in a notice made under section 71G
(4)
In section 2(1), definition of qualifying drug, replace paragraph (a) with:
means any substance, preparation, mixture, or article containing a controlled drug specified in Schedule 1 or 2 of the Misuse of Drugs Act 1975 or any of Parts 1 to 5 and Part 7 of Schedule 3 of the Misuse of Drugs Act 1975; and
Replace section 11A with:
A person may not drive or attempt to drive a motor vehicle while—
the person’s blood contains evidence of use of a qualifying drug (see sections 57A(1) and (2), 57B(1) and (2), and 57C(1) and (2)); or
the person’s oral fluid indicates use of a qualifying drug (see sections 57A(3), 57B(3), and 57C(3) and (4)).
For the purposes of subsection (1)(a), evidence of use of a qualifying drug has the same meaning as in section 56AAA.
A person’s blood contains evidence of use of a qualifying drug if—
the blood concentration level of a listed qualifying drug exceeds the tolerance level for the drug; or
the blood contains any level of an unlisted qualifying drug.
For the purposes of subsection (1)(b), a person’s oral fluid indicates use of a qualifying drug if the results of a first oral fluid test and a second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug.
Replace section 13(1) and (2) with:
A person must comply with sections 68, 69, 70, 71A, 71B, 71C, 71E, 71F, 72, and 73 (which relate to the administration of breath screening tests, evidential breath tests, oral fluid tests, compulsory impairment tests, and blood tests).
A person must comply with all lawful requirements, directions, and requests made by an enforcement officer under any of sections 68, 69, 70, 71A, 71B, 71C, 71E, 71F, 72, and 73.
In the Part 5 heading, replace “alcohol-related” with “alcohol- and drug-related”.
“alcohol-related”
“alcohol- and drug-related”
In the cross-heading above section 34, after “alcohol”, insert “or drugs”.
“alcohol”
“or drugs”
After the Part 6 heading, insert:
In this Part, a person’s blood contains evidence of use of a qualifying drug if—
In section 56(4), replace “subsection (1) or subsection (2), or any of sections 57A(1)” with “subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1)”.
“subsection (1) or subsection (2), or any of sections 57A(1)”
“subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1)”
Replace section 57A with:
A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood—
contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or
contains evidence of use of an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.
A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood—
contains evidence of use of 1 listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; or
contains evidence of use of 1 unlisted qualifying drug and the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.
A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—
the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and
the person does not elect to have a blood test in accordance with section 71D.
A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood contains evidence of use of 2 or more qualifying drugs and either or both of the following apply:
1 or more of the drugs are listed qualifying drugs and the blood concentration level for 1 or more listed qualifying drugs exceeds the applicable high-risk level:
1 or more of the drugs are unlisted qualifying drugs and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.
contains evidence of use of 2 or more listed qualifying drugs and the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; or
contains evidence of use of 2 or more unlisted qualifying drugs and the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken; or
contains evidence of use of 1 or more listed qualifying drugs and 1 or more unlisted qualifying drugs and—
the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; and
the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.
the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of 2 or more of the same qualifying drugs; and
A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood contains alcohol and evidence of use of 1 qualifying drug and any or all of the following apply:
the proportion of alcohol in the person’s blood—
exceeds 80 milligrams of alcohol per 100 millilitres of blood; or
if the person is younger than 20, exceeds 30 milligrams of alcohol per 100 millilitres of blood; or
if the person holds an alcohol interlock licence or a zero alcohol licence, equals or is less than 50 milligrams of alcohol per 100 millilitres of blood:
the drug is a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug:
the drug is an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.
A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73,—
contains alcohol and the proportion of alcohol in the person’s blood equals or is less than—
80 milligrams of alcohol per 100 millilitres of blood; or
if the person is younger than 20, 30 milligrams of alcohol per 100 millilitres of blood; and
contains evidence of use of a qualifying drug and,—
if the drug is a listed qualifying drug, the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; and
if the drug is an unlisted qualifying drug, the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.
A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if,—
as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood contains alcohol but the proportion of alcohol in the person’s blood equals or is less than—
the results of a first oral fluid test and the second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and
the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, equals or is less than—
400 micrograms of alcohol per litre of breath; or
if the person is younger than 20, 150 micrograms of alcohol per litre of breath; and
(5)
Subsections (2), (3), and (4) do not apply to a person who holds an alcohol interlock licence or a zero alcohol licence (see section 57AA for offences relating to contravention of specified breath or blood alcohol limits by a holder of an alcohol interlock licence or a zero alcohol licence).
If a person is convicted of a first or second offence against section 57A(1),—
the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
the court must order the person to be disqualified for 6 months or more from holding or obtaining a driver licence.
If a person is convicted of a first or second offence against section 57B(1) or 57C(1),—
the maximum penalty is imprisonment for a term not exceeding 6 months or a fine not exceeding $4,500; and
the court must order the person to be disqualified for 9 months or more from holding or obtaining a driver licence.
If a person is convicted of a third or subsequent offence against any of sections 56(1), 56(2), 57A(1), 57B(1), 57C(1), 58(1), 60(1), 61(1), and 61(2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
the court must order the person to be disqualified for more than 1 year from holding or obtaining a driver licence.
If an offence against section 57A(1), 57B(1), or 57C(1) 57A(1) or 57B(1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then the mandatory disqualification in subsection (1)(b), (2)(b), or (3)(b) does not apply and section 65AH(3)(b) applies.
Subsection (3)(b) does not apply if an order is made under section 65.
(5A)
For the purposes of this section, a conviction against a provision of the Transport Act 1962 corresponding to an offence specified in subsection (3) is to be treated as a conviction for an offence specified in that subsection.
(6)
The imposition of a mandatory disqualification under this section is subject to section 81 (which allows a court not to order disqualification for special reasons relating to the offence).
Replace section 58(1) and (1A) with:
A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.
In section 58(3). replace “57A(1)” with “section 57A(1), 57B(1), 57C(1)”.
“57A(1)”
“section 57A(1), 57B(1), 57C(1)”
In section 58(3), replace “57A(1)” with “57A(1), 57B(1), 57C(1)”.
“57A(1), 57B(1), 57C(1)”
In section 59(1)(b) and (c), replace “71A” with “71A, 71B, 71E, 71F”.
“71A”
“71A, 71B, 71E, 71F”
(1A)
In section 59(1)(c)(i), replace “breath test or a blood test or” with “breath test, an oral fluid test, a blood test, or”.
“breath test or a blood test or”
“breath test, an oral fluid test, a blood test, or”
Replace section 59(1)(d) with:
having undergone an evidential breath test under a requirement under section 69, an oral fluid test under a requirement under any of sections 71A to 71C, or a compulsory impairment test under section 71F, fails or refuses to remain at the place where the person underwent the test until after the result of the test is ascertained.
In section 60(1)(d), replace “section 71A” with “section 71F”.
“section 71A”
“section 71F”
In section 60(3), replace “57A(1),” with “57A(1), 57B(1), 57C(1),”.
“57A(1),”
“57A(1), 57B(1), 57C(1),”
Replace section 61(2)(b) and (c) with:
if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person in charge—
In section 61(2A), delete “or (2)(c)”.
“or (2)(c)”
In section 61(3A), replace “or section 56(1) or (2), or section 57A(1), or section 58(1), or section 60(1)” with “any of sections 56(1), 56(2), 57A(1), 57B(1), 57C(1), 58(1), and 60(1)”.
“or section 56(1) or (2), or section 57A(1), or section 58(1), or section 60(1)”
“any of sections 56(1), 56(2), 57A(1), 57B(1), 57C(1), 58(1), and 60(1)”
Replace section 62(1)(b) with:
if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person driving contains evidence of use of a listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug.
Replace section 62(1B) with:
(1B)
A person commits an offence if the person causes bodily injury to, or the death of, a person by driving or attempting to drive a vehicle if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person driving—
In section 64(1A), replace “section 57A(1)” with “section 57A(1) or (2), 57B(1) or (2), 57C(1) or (2),”.
“section 57A(1)”
“section 57A(1) or (2), 57B(1) or (2), 57C(1) or (2),”
After section 64(1A), insert:
(1AB)
It is a defence to proceedings for an offence against section 57A(3), 57B(3), or 57C(3) or (4) if the court is satisfied that the person’s oral fluid indicates use of a qualifying drug and—
the person—
has a current and valid prescription for the qualifying drug that was written for that person by a health practitioner; and
has complied with the instructions (if any) from a health practitioner or from the manufacturer of the qualifying drug about driving, consuming alcohol or other prescription medicines, or both, while consuming the qualifying drug; or
the drug was administered by a health practitioner, and the person complied with the instructions (if any) given by the health practitioner.
In section 64(2), replace “and 77” with “77, and 77A”.
“and 77”
“77, and 77A”
In section 64(3A)(a), replace “or evidential breath test” with “, evidential breath test, or oral fluid test”.
“or evidential breath test”
“, evidential breath test, or oral fluid test”
After section 64(5), insert:
It is no defence to proceedings for an offence against this Act in respect of the proportion of a qualifying drug in a person’s blood—
that there was or may have been an error in the result of the first oral fluid test or second oral fluid test; or
that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require a second oral fluid test or a blood test.
In section 65AB(1), after “57AA,”, insert “57C 57C(1),”.
“57AA,”
“57C 57C(1),”
In section 67(1)(a)(i), replace “72(1)” with “72(1)(a), (b), (c), or (d)”.
“72(1)”
“72(1)(a), (b), (c), or (d)”
After section 67(1)(a), insert:
any person who—
elects or is required to undergo a blood test under section 71D or 72(1)(e), (f), (g), or (h); and
is advised in accordance with section 71A(4)(c), 71D(2), or 72(1F) before undergoing the blood test:; and
commits an offence against section 57A(1) or (2), 57B(1) or (2), or 57C(1) or (2):
In section 67(1B)(a), replace “57A” with “57A(1), 57B(1), 57C(1)”.
“57A”
In section 67(2), after “Act”, insert “(including prescribing different fees for different classes of persons)”.
“Act”
“(including prescribing different fees for different classes of persons)”
After section 68(5), insert:
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 under any of sections 71A to 71C and regardless of the result (or failure to produce a result) of any such oral fluid test or tests.
Replace the heading to section 70A with “Who has right to elect blood test after positive evidential breath test”.
“Who has right to elect blood test after positive evidential breath test”
Replace section 71A with:
An enforcement officer may require any of the following persons to undergo a first oral fluid test without delay:
a driver of, or a person attempting to drive, a motor vehicle on a road:
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:
if an accident has occurred involving a motor vehicle,—
the driver of the vehicle at the time of the accident; or
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.
An enforcement officer—
may require a person to undergo 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 result (or failure to produce a result) of any such oral fluid test or tests; but
must not require a person to undergo a first oral fluid test if an enforcement officer has required the person to undergo a compulsory impairment test under section 71F(1).
An enforcement officer may require the person—
to remain in the place where stopped to undergo the first oral fluid test; or
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 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.
An enforcement officer who requires a person to undergo a first oral fluid test under this section must, without delay, advise the person that,—
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)(e); and
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
if the result of a blood test indicates the presence of alcohol, 1 or more qualifying drugs, or both alcohol and 1 or more qualifying drugs, the person may be issued with an infringement notice or charged with an offence, depending on—
the proportion of any alcohol in the person’s blood; and
the blood concentration level and type of the qualifying drugs (if any) in the person’s blood; and
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).
A person must—
accompany an enforcement officer to a place when required to do so under this section:
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:
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.
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.
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).
to remain in the place where the person underwent the first oral fluid test to undergo the second oral fluid test; or
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 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.
An enforcement officer may arrest without warrant a person who contravenes subsection (3).
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.
An enforcement officer must require a person to undergo without delay a further oral fluid test if—
a first oral fluid test carried out under section 71A fails to produce a result:
a second oral fluid test carried out under section 71B fails to produce a result.
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.
An enforcement officer may arrest without warrant a person who contravenes subsection (2).
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.
A positive result of a further oral fluid test required under subsection (1) must,—
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
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.
A person may be required to undergo only 1 further oral fluid test under subsection (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—
the person has undergone a first oral fluid test and a second oral fluid test that have produced positive results; and
the results of both tests indicate the use of 1 or more of the same qualifying drugs.
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).
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 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:
a person who has undergone a first oral fluid test and a second oral fluid test that have produced positive results if—
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
the enforcement officer has good cause to suspect that another person has been injured or killed as a result of the accident:
a person who has elected to have a blood test under section 71D:
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.
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.
The person must—
accompany the enforcement officer to a place when required to do so under this section:
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.
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:
An enforcement officer may require a person specified in subsection (1) to—
remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or
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.
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.
An enforcement officer may arrest a person without warrant if the person refuses or fails to comply with subsection (2) or (3).
An enforcement officer may exercise the powers in subsections (1) and (2) in addition to any of the following:
any breath screening test, regardless of the result of the test (or a failure of the test to produce a result):
any evidential breath test, regardless of the result of the test (or a failure of the test to produce a result):
a first oral fluid test that—
does not produce a positive result; or
produces a positive result that indicates the use of more than 1 qualifying drug:
a second oral fluid test that does not produce a positive result.
An enforcement officer must not exercise the powers in subsection (1) and (2) in addition to either of the following:
a first oral fluid test that produces a positive result that indicates the use of only 1 qualifying drug:
a second oral fluid test that produces a positive result.
The Minister of Police may, by notice, approve—
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:
the manner in which an oral fluid test may be carried out by means of an oral fluid testing device.
Before giving a notice under subsection (1), the Minister of Police must—
consult the Minister of Transport and the Science Minister; and
have regard to the accuracy of the device; and
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.
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.
A notice made under subsection (1) for the purposes of approving a kind of device or a test—
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
may—
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:
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.
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—
appears on the device, whether on a label or otherwise, or is shown on a display panel on the device; or
is printed out by the device on a card or on paper; or
appears on printed matter that—
accompanies the device; and
is associated with the device or is intended by the manufacturer of the device to be associated with the device; and
is issued by or on behalf of the manufacturer.
In this section, specified qualifying drug means a qualifying drug specified in a notice made under subsection (1).
A notice made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Replace section 72(1)(e) with:
the person fails or refuses to undergo without delay an oral fluid test after having been required to do so by an enforcement officer under any of sections 71A to 71C; or
the person has undergone a second oral fluid test under section 71B and—
it appears to the officer that the test is positive; and
within 10 minutes of being advised by an enforcement officer of the matters specified in section 77A(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test; or
the person has undergone 2 oral fluid tests under any of sections 71A to 71C and the person has accompanied an enforcement officer to a place where the person can undergo an evidential blood test under section 71E(1)(b) or (1A); or
the person 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.
In section 72(1A) and (1B), replace “Subsection (e)” with “Subsection (h)”.
“Subsection (e)”
“Subsection (h)”
In section 72(1A) and (1B), replace “Subsection (1)(e)” with “Subsection (1)(h)”.
“Subsection (1)(e)”
“Subsection (1)(h)”
In section 72(1B) and (1C), replace “section 68 or evidential breath tests under section 69” with “section 68, evidential breath tests under section 69, or oral fluid tests under any of sections 71A to 71C”.
“section 68 or evidential breath tests under section 69”
“section 68, evidential breath tests under section 69, or oral fluid tests under any of sections 71A to 71C”
In section 72(1E), replace “(c), (d), or (e)” with “(c) or (d)”.
“(c), (d), or (e)”
“(c) or (d)”
After section 72(1E), insert:
(1F)
An enforcement officer who requires a person to permit the taking of a blood specimen under subsection (1)(e), (f), (g), or (h) must advise the person, without delay, that 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).
Replace section 73A with:
Evidence of alcohol or evidence of use of any 1 or more qualifying drugs in a blood specimen taken under section 72 or 73 may be used as evidence in a prosecution for any offence under this Act (see also sections 77(2) and 77A(1), which specify presumptions for the purposes of this Act relating to drug-testing and alcohol-testing).
Neither of the following may be used as evidence of the use of a controlled drug in a prosecution for an offence under the Misuse of Drugs Act 1975:
a positive result of an oral fluid test taken under any of sections 71A to 71C:
a blood specimen taken under section 72 or 73.
In the heading to section 75, after “blood-alcohol”, insert “and drug-driving”.
“blood-alcohol”
“and drug-driving”
After section 77, insert:
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.
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.
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—
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,—
that the second oral fluid test was positive; and
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
the person who underwent the test—
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
complies with section 72(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.
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).
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.
Replace section 79(4)(c) to (e) with:
the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol,—
in the case of a defendant who (at the time of the commission of the offence) was younger than 20 or held an alcohol interlock licence or a zero alcohol licence, no alcohol; or
in any other case, not more than 50 milligrams of alcohol per 100 millilitres of blood; or
the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol, 20 milligrams or more of alcohol per 100 millilitres of blood more or less than the proportion of alcohol per 100 millilitres of blood specified in the certificate referred to in section 75(5); or
the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain,—
if a certificate certified that there is evidence of use of a listed qualifying drug, a blood concentration level equal to or less than the tolerance level for the drug; or
if a certificate certified that there is evidence of use of an unlisted qualifying drug, no presence of the qualifying drug.
After section 94, insert:
An enforcement officer must forbid a person to drive a motor vehicle for a 12-hour period if the person has undergone 2 oral fluid tests and the results of both tests are positive.
The 12-hour period starts immediately after the enforcement officer notifies the person of the prohibition.
An enforcement officer may arrest without warrant a person who fails to comply with a direction under subsection (1) or drives or attempts to drive within the 12-hour period.
In section 95(1)(a)(i), replace “57A,” with “57A(1), 57B(1), 57C(1),”.
“57A,”
After section 95(1)(a)(i)(B), insert:
to have a blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or
to have an unlisted qualifying drug in the person’s blood after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F:
Replace section 96(1)(d) with:
the person, if they had previously been convicted of 2 or more offences against any of sections 56(1) and (2), 57, 57AA, 57A(1), 57B(1), 57C(1), 58(1), 60(1), and 61(1) and (2) within the last 4 years,—
had a breath alcohol concentration exceeding 400 micrograms of alcohol per litre of breath; or
had a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood; or
had a blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or
had any presence of an unlisted qualifying drug in their blood after failing to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F; or
failed or refused to undergo a blood test, after having been required or requested to do so under section 72 or 73.
After section 99(1)(b)(via), insert:
section 57B(1):
section 57C(1):
In section 103(2)(d)(ii), replace “57A” with “57A, 57B, 57C”.
“57A, 57B, 57C”
In section 104(1)(c), replace “57A” with “57A, 57B, 57C”.
In section 119(2)(a), replace “section 68 or section 69” with “section 68, 69, or 71A”.
“section 68 or section 69”
“section 68, 69, or 71A”
In section 120(1A), replace “section 71A” with “section 71F”.
In section 121(1)(a)(i)(B) and (C), replace “section 71A” with section 71F.
After section 121(1)(a)(i)(C), insert:
has failed or refused to permit a blood specimen to be taken when required to do so by an enforcement officer under section 72(1)(a) or (e); or
Before section 167(2)(a), insert:
is 75 demerit points in the case of an offence against section 57B(1) or 57C(1) section 57B(2) or (3) or 57C(2), (3), or (4):
After section 167, insert:
The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister and the Minister of Police, amend Schedule 5 by doing any 1 or more of the following:
adding the name of a qualifying drug to Part 1 of Schedule 5 and specifying a high-risk level for the drug:
adding the name of a qualifying drug to Part 2 of Schedule 5 and specifying a tolerance level for the drug:
amending any high-risk level or tolerance level specified in Schedule 5 for a qualifying drug.
A high-risk level for a qualifying drug—
may be specified only if a tolerance level is specified for the drug; and
may be the same as the tolerance level for the drug.
Before making a recommendation under subsection (1), the Ministers must, in respect of each qualifying drug referred to in the proposed order,—
seek and consider independent advice from independent experts appointed under section 167B on—
the specific effects of each drug referred to in the proposed order; and
the appropriate high-risk level for each drug referred to in any proposed amendment to Part 1 of Schedule 5; and
the appropriate tolerance level for each drug referred to in any proposed amendment to Part 2 of Schedule 5; and
publish a notice in the Gazette and any other media the Ministers consider appropriate of their intention to recommend the making of the Order in Council; and
give interested persons a reasonable time, which must be specified in the notice published under paragraph (c), to make submissions on the proposed order; and
consult the persons, representative groups, government departments, and Crown entities that the Ministers consider reasonable and appropriate to consult in the circumstances.
The Minister may seek and consider independent advice from independent experts appointed under section 167B on any other matter the Minister considers appropriate before making a recommendation under subsection (1).
The Governor-General may, by Order in Council, amend the name or description of any qualifying drug named or described in Schedule 5, if the amendment is necessary for the purpose of rendering that name or description consistent with the name or description of the qualifying drug in the Misuse of Drugs Act 1975.
An Order in Council made under this section—
is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements); and
if made under subsection (1), must be confirmed by an Act (see subpart 3 of Part 5 of the Legislation Act 2019).
The Minister of Transport, the Minister of Police, and the Science Minister (the Ministers) may from time to time appoint 1 or more independent experts to advise the Ministers on matters relating to setting and amending high-risk blood concentration levels and tolerance blood concentration levels for qualifying drugs under section 167A.
The independent experts appointed under subsection (1) must together have appropriate expertise in relevant medical and scientific fields, including pharmacology and toxicology.
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, including the pharmacological, psychoactive, and toxicological effects; and
the appropriate high-risk levels and tolerance levels for qualifying drugs in accordance with subsections (4) and (5).
In advising the Ministers on the appropriate high-risk level for a qualifying drug, the independent experts must take into account—
the specific effects of the qualifying drug and the medical and scientific evaluations of the drug carried out under subsection (3)(a); and
that the high-risk level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge, is likely to impair a person’s driving; and
the high-risk levels specified, at the time of advising the Ministers, in Part 1 of Schedule 5 for other listed qualifying drugs and, in particular (where possible), for drugs with similar effects.
In advising the Ministers on the appropriate tolerance level for a qualifying drug, the independent experts must take into account—
that the tolerance level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge,—
is likely to indicate that a person has recently used the drug; and
is unlikely to be exceeded if the person has such a low level of the drug in their blood (whether due to passive exposure or otherwise) that their driving is unlikely to be impaired; and
for a qualifying drug that is a prescription medicine, the maximum dose of the prescription medicine that is generally prescribed; and
the tolerance levels specified, at the time of advising the Ministers, in Part 2 of Schedule 5 for other listed qualifying drugs and, in particular (where possible), for drugs with similar effects.
In section 209, replace “saliva” with “oral fluid” in each place.
“saliva”
“oral fluid”
In the heading to section 209A, after “Analysing”, insert “oral fluid or”.
“Analysing”
“oral fluid or”
Replace section 209A(1) with:
A person may, for statistical or research purposes related to the use of drugs or alcohol, analyse or re-analyse in an approved laboratory—
an oral fluid sample taken from a person under any of sections 71A to 71C:
a blood specimen from a person taken under section 72 or 73.
In section 209A(3), after “No analysis of”, insert “an oral fluid sample or”.
“No analysis of”
“an oral fluid sample or”
Replace section 209A(4) with:
An oral fluid sample or a blood specimen analysed or re-analysed under subsection (1) must be treated in a manner that does not identify the person from whom the oral fluid sample or blood specimen is taken.
Nothing in this section limits the purposes for which an oral fluid sample or a blood specimen may be analysed or re-analysed under this Act.
In Schedule 1, after Part 1, insert the Part 4 set out in Schedule 1 of this Act.
After Schedule 4, insert the Schedule 5 set out in Schedule 2 of this Act.
This section amends the Legislation Act 2019.
In Schedule 4, insert in its appropriate alphanumeric order:
This section amends the Sentencing Act 2002.
In section 129(1)(a), replace “57A(1)” with “57A(1), 57B(1), 57C(1)”.
This section amends the Land Transport (Offences and Penalties) Regulations 1999.
In Schedule 1, after the item relating to section 57(2A) of the Land Transport Act 1998, insert:
In Schedule 2, after the item relating to section 57AA(1) or (2) of the Land Transport Act 1998, insert:
s 39
The Minister must appoint a reviewer to undertake a review of the amendments made by the Land Transport (Drug Driving) Amendment Act 2020—
no earlier than 3 years after the commencement of that Act; and
no later than 4 years after the commencement of that Act.
The Minister must ensure that the reviewer appointed under subclause (1) is independent of the—
New Zealand Police; and
Ministry of Transport.
The review undertaken under subclause (1) must, subject to clause 21, consider—
the impact of the amendments; and
the reliability of oral fluid tests and blood tests in assessing a person’s impairment; and
whether appropriate thresholds and impairment levels have been set for different drugs; and
whether the amendments have been appropriately implemented by the New Zealand Police and other relevant entities; and
whether the amendments have had a disproportionate impact on Māori and Pasifika people; and
the extent to which, if it can be assessed, the number of people driving while impaired by drugs has changed since the amendments came into force; and
whether—
further amendments should be considered:
any of the amendments should be repealed; and
any other matter that the Minister requests the reviewer examine; and
any other matter that the reviewer considers relevant.
The reviewer must provide the review to the Minister within 12 months of the date of the reviewer’s appointment under subclause (1).
The Minister must, within 60 working days of the day the review is provided to the Minister under subclause (4), present to the House of Representatives—
the review; and
a response to the review.
The Governor-General may, by Order in Council, on the advice of the Minister, require that the review undertaken under clause 20 not consider 1 or more of the matters identified in clause 20(3).
Before advising the Governor-General to make an Order in Council under subclause (1), the Minister must present a paper to the House of Representatives explaining the reasons why, in the Minister’s view, the review should not consider the matters identified in the Order in Council.
An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
This Part applies until the main commencement date (as defined in clause 2 of Schedule 1 of the Legislation Act 2019).
The Legislation Act 2012 applies in relation to an Order in Council made under section 167A(1) as if that section were listed in Schedule 2 of that Act.
The explanatory note of an order made under section 167A(1) must indicate that—
it is a confirmable instrument under section 47B of the Legislation Act 2012; and
it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and
the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.
A notice made under section 71G—
must be published in the Gazette; and
is a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
s 40
ss 2, 167A, 167B
30 July 2020
Introduction (Bill 317–1)
4 August 2020
First reading and referral to Transport and Infrastructure Committee
17 June 2021
Reported from Transport and Infrastructure Committee (Bill 317–2)
11 August 2021
Second reading
16 February 2022
Committee of the whole House (Bill 317–3)