Land Transport Act 1998

77 Presumptions relating to alcohol-testing

• (1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.

  (2) 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 section 73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same as the proportion of alcohol in the blood specimen taken from the defendant.

  (3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if—

  • (a) the person who underwent the test is not advised by an enforcement officer, without delay after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes,—

    • (i) in the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be conclusive evidence to lead to that person's conviction for an offence against this Act; or

    • (ii) in the case of a positive test that indicates that the proportion of alcohol in the person's breath exceeds 150 but does not exceed 400 micrograms of alcohol per litre of breath, the test could of itself, unless the person is 20 or older, be conclusive evidence to lead to that person's conviction for an offence against this Act; or

  • (b) the person who underwent the test—

    • (i) 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

    • (ii) complies with section 72(2).

  (4) 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.

  (5) [Repealed]

  (6) 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.

  Compare: 1962 No 135 s 58(4), (5), (6)

  Section 77(3)(a): amended, on 29 December 2001, by section 9(1)(a) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).

  Section 77(3)(a)(i): amended, on 29 December 2001, by section 9(1)(b) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).

  Section 77(3)(a)(ii): amended, on 29 December 2001, by section 9(1)(b) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).

  Section 77(5): repealed, on 29 December 2001, by section 9(2) of the Land Transport (Road Safety Enforcement) Amendment Act 2001 (2001 No 104).