Lower drink driving limits and the Bill of Rights

The government has for a little while now had a bill before parliament to lower the breath alcohol limit for drivers from 400 mcg per litre of breath to 250 mcg/L. Those who blow 251 – 400 mcg/L will receive a $200 fine and 50 demerit points. That’s all very well – I’ve got nothing against lowering the limit. It can be somewhat alarming how much some people can have to drink before they reach the current limit…

The issue that I have, which has been highlighted for the select committee by both the Attorney-General and the NZ Law Society, is that the current bill denies those who blow between 251 – 400 mcg/L the option to have an evidential blood test. The A-G and NZLS describe this as representing “an unreasonable limitation on the right to be presumed innocent”.

At present, anyone who fails the evidential breath test is given a 10 minute period to decide whether they wish to have a blood test. This right is so important that if a full 10 minutes is not given, or if that 10 minute period is interrupted, a drink driving charge will generally be withdrawn by police or dismissed by the Courts. The reason it’s deemed so important is the interplay between that word ‘evidential’ and the concept of presumption of innocence.

If someone pleads not guilty to a drink drive charge, and they elected not to have a blood test, there is almost nothing they can do to prove that the breath test result was incorrect (excepting occasional issues regarding calibration and the accuracy of specific models, which require their own specific brand of evidence and are seldom advanced these days). If it’s a situation where some poor schmo takes the witness stand and says, “I can’t have been that drunk – the machine must have got it wrong”, there’s no evidence they can put before the Court to support that claim. The evidential breath test will well and truly trump their recollection of what they had to drink and how sober they were. As Graeme Edgeler (blogger and NZLS spokesperson) says (in his role of NZLS spokesperson), the reliability of evidential breathalysers is good, but not infallible.

On the other hand, if someone takes a blood test, that sample remains in the lab, able to be retested. Graeme Edgeler:

“The Supreme Court has noted the importance of the right to a blood test, because it allows human error to be challenged and the accuracy of the scientific evidence to be tested.”

Without the right to an evidential blood test, the right to be presumed innocent essentially disappears. It strikes me as wrong that parliament could even consider denying a person the right to have collected the one piece of evidence with which that person could mount a defence.

Would keeping the right to an evidential blood test for those blowing between 251 and 400 mcg/L make more work for police? Sure. But that’s the price that police pay for being officers of the law in a democratic system that respects the rights of its populace.


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