Offences – Drink Driving

Contact lawyer Alistair Haskett on 0800 DRINK DRIVE (0800 374653)

Drink driving offences:Drink Driving Offences

What is impaired driving?

Driving impairments are any conditions or actions that diminish a driver’s ability to operate a vehicle in a safe and reasonable way.  Drink driving is one type of impaired driving.  Studies have shown other forms of impaired driving can result in similar or worse safety risks, such as having a cold and driving; hands-free phone calls and driving; texting and driving; eating and driving; smoking and driving; grooming and driving; driving while on medication, ill, infirm or injured; and, driving while tired.

Despite those comparable or worse risks these other forms of impaired driving are either a mere infringement offence or not an offence at all, although they can be a factor underlying the likes of a careless or dangerous driving charge (in which case there is actual bad driving).

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Drink driving convictions in 3% of all road injuries

All types of impaired driving have degrees that can result in unsafe driving.  However, there are far more people injured in accidents involving poor driving than drink driving. In 2013 less than 1.5% of excess alcohol convictions involved injury. That 1.5% accounted for less than 3% of all injuries on our roads. In terms of numbers, there were 23,906 drink drive convictions of which 355 involved injury from a total injury number of 12,035 for all crashes (these figures combine injury and fatality cases).

In other words, some 97% of injuries were not linked to excess alcohol convictions and some 98.5% of persons convicted of drink driving were not involved in the 3% excess alcohol injury crashes. And, the reality is that the 1.5% of drink-drive injury cases often involve other factors like excessive speed or dangerous driving – it’s often not just a case of being an impaired driver.

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Lower alcohol limit is not the answer

The public was told that the lower 0.05 limit would result in less deaths on our roads.  Not so.  The first year of the lower limit saw a significant increase in fatalities.  That backs up earlier comments that the lower alcohol limit has made no difference to fatality statistics.

Note in that last article how statistics can mislead.  The article is talking about excess alcohol limits but the accident statistics refer to alcohol being a “factor” rather than excess alcohol.

There is always a “factor” in an accident, often there are several “factors”.  The main focus should be the dominant cause of accidents. The dominant factor in most accidents is not alcohol, and certainly not between the levels of 0.05 and 0.08.  The most dominant cause of accidents are driver error and poor driver skills – and yet that seems to get comparatively little focus from the government, police, media and courts.

So far it seems to us that the lower alcohol limit has had the following effect:

  • It has been used by Police and NZTA as a springboard to deliberately mislead the public.
  • It has been used to create fear and paranoia in good people about having a social drink and driving.
  • It has stigmatised many thousands of safe drivers caught between the 0.05 and 0.08 limits.
  • It has jeopardised those persons’ ability to drive, work and look after family as a result of demerits.
  • It has caused significant financial hardship for restaurants, bars, and sports and community clubs.
  • It has gained the government huge revenues from infringement fees.
  • It has diverted police staff and taxpayer money away from more important police duties.
  • It has led to people seeing police as revenue collectors rather than policing crime.
  • It has had those adverse effects despite many people being tested with faulty breath test devices.
  • It has not improved fatality statistics and is not the solution.
  • It has not lowered drink driving as represented, rather there are less convictions because police have slashed the number of roadside tests they do, while the road toll increases.

Have a listen to Radio Live’s Sean Plunket about the treatment of people in respect of the new lower limit.  Then consider how fairly the government is representing the situation in the television advert discussed by Sean.  The wife has had a couple of drinks over dinner but is taken away by police for having excess alcohol.  Is that fair advertising or is it misleading and scaremongering?  Compare the couple of drinks over dinner in the advert alongside this ESR guideline, for drinking over only a two hour period with no mention of food:

Drink Driving Limits

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Dangerous driving and drink driving are not the same thing

It is perfectly legal for an adult to have a drink and then drive.

It is not the role of police to misrepresent the law or to create a culture of fear among citizens. Despite what police say, we do not have a zero alcohol limit for adults and driving after drinking is not itself dangerous.  The true position is simply stated by the High Court, namely “consumption of alcohol combined with driving is acceptable if the use is kept within the permissible legal limit”.

The incongruity of the police zero alcohol messages can be highlighted by the fact that even driving while over the alcohol limit is not necessarily dangerous. It may be illegal however, whether it’s excess speed or alcohol, the mere act of driving over a proscribed limit does not make the driving dangerous. It is the affect of alcohol on the particular person that can make driving dangerous. However, we all know that alcohol affects people differently.  Studies have shown some drivers function at a reasonable standard when well above the legal limit, whereas other drivers function very poorly when well below the legal limit.

Excess breath alcohol results are also of dubious assistance in assessing whether a driver is incapable of having proper control of a vehicle, or indeed factually over the legal limit, because most breath test devices rely on assumptions and are subject to various limitations.  One example is what is called the partition ratio.  It is ethanol in the blood not the breath that affects the brain.  An assumed partition ratio of 2100:1 is normally used to equate breath alcohol with blood alcohol concentrations in all motorists’ bodies.  However, not all motorists have a partition ratio of 2100:1.  In fact, most will not have that ratio.  For example, about 16% of people will have a partition ratio around 1500:1, which means at the non-criminal blood alcohol level of 0.08 they will have an equivalent breath alcohol level of 0.16 or twice the criminal breath alcohol limit.  The motorist would be convicted of a drink driving offence even though the alcohol level in the blood and in the brain are below the criminal limit.  How fair is that!

None of this suggests that drink driving offences are not serious.  They are.  Drink driving offences are either an infringement or criminal offence, depending on the alcohol level.  However, the great majority of drink drive cases do not involve actual dangerous driving.  It is rare for police to charge a drink driver with dangerous driving, because they are different things.

This highlights why the law has different types of drink driving offences and penalties.  The base offence of driving with excess breath or blood alcohol is what is called a status offence.  It is the act of driving a motor vehicle on a road with the status of having excess alcohol concentration.  There is no bad driving ingredient and there is no consequence or harm element to the offence.  There are different and far more serious offences and penalties when drink driving results in dangerous driving and harm.

This tongue-in-cheek video highlights why driving with excess alcohol cannot be equated with driving while incapable of proper control:

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Types of drink driving offences

Here is a summary of the main drink driving offences in the Land Transport Act 1998:

  • Driving or attempting to drive with breath alcohol levels exceeding the adult limits (BrAC over 400 is a criminal offence; whereas BrAC over 250 but not over 400 is an infringement offence).
  • Driving or attempting to drive with excess blood alcohol exceeding the adult limits (BAC over 80 is a criminal offence; whereas BAC over 50 but not over 80 is an infringement offence).
  • Driving or attempting to drive with excess breath alcohol as a person under 20 years old (BrAC over 150 is a criminal offence; whereas BrAC over zero but not over 150 is an infringement offence).
  • Driving or attempting to drive with excess blood alcohol as a person under 20 years old (BAC over 30 is a criminal offence; whereas BAC over zero but not over 30 is an infringement offence).
  • Refusing or failing to do an evidential breath test and then also having a positive blood test result of BAC exceeding 50 but not 80 is a further infringement offence (meaning two different infringement offences are committed in these circumstances for people over 20 years old; whereas a criminal offence and an infringement offence is committed for people under 20 years old).
  • Driving or attempting to drive while impaired and with blood that contains evidence of use of a qualifying drug.
  • Driving or attempting to drive 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.
  • Driving or attempting to drive while your blood contains evidence of the use of a specified controlled drug.
  • Failing or refusing lawful requirements to remain or to accompany an enforcement officer to certain places.
  • Failing or refusing to permit a blood specimen to be taken after having been required to do so lawfully.
  • Failing or refusing to undergo a compulsory impairment test after having been required to do so lawfully.
  • Being in charge of a motor vehicle and causing injury or death while committing some of the offences above.
  • Certain other offences involving injury or death and alcohol or drugs.

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Drink driving offences are treated seriously

Drink driving offences are treated seriously, regardless of what the statistics and ingredients of the offence are. If you are charged with a drink driving offence look carefully at both the likely sentence if you are convicted and also the potential personal consequences. A person who is guilty of texting while driving or of careless or dangerous driving may well not have the same difficulties as the drink driver when it comes to employment, travel, insurance, licensing or similar.

More information on potential legal and personal consequences can be seen our penalties page. If you want to consider options to avoid a conviction, disqualification or both, see our pages on defences and results. Alternatively, call lawyer Alistair Haskett on 0800 DRINK DRIVE LAWYER (0800 374653).

 

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