Land Transport (Drug Driving) Amendment Bill

Land Transport (Drug Driving) Amendment Bill

Government Bill

317—1

Explanatory note

General policy statement

Addressing drug driving is necessary to reduce road trauma and make our roads safer. In 2014, 18 people were killed in crashes where the driver had consumed drugs other than alcohol before driving. By 2018, the number of people killed in crashes where the driver had consumed drugs other than alcohol before driving had risen to 95. It is clear that our current approach is not effective in deterring drug driving on our roads.

The roadside oral fluid testing regime

The Land Transport (Drug Driving) Amendment Bill establishes a new random roadside oral fluid testing regime. This oral fluid testing regime would sit alongside the current compulsory impairment test (CIT) approach to drug driving. Under the new regime, a police officer would be able to stop any driver of a motor vehicle and administer an oral fluid test without cause to suspect a driver has consumed drugs, consistent with the existing approach to drink driving enforcement.

The Bill proposes that drivers who fail 2 consecutive oral fluid tests would incur an infringement penalty, aligned to the drink driving infringement penalty.

Cut-off thresholds would be set in the oral fluid devices for the detection of drugs, although these are not specified in the Bill. These thresholds would avoid the risk of penalising drivers who have accidental or passive exposure to drugs, have low residual levels of a drug, or consumed doses of some prescription or over-the-counter medicines that are unlikely to impair driving.

A driver who passes the first oral fluid test (or passes a second test after failing a first), and is not required to carry out a CIT, would be free to go.

Drivers who fail 2 consecutive oral fluid tests can elect to undertake an evidential blood test, and would be subject to both infringement and criminal penalties, depending on the levels of drugs in their blood sample. The medical defence will be available to drivers who elect a blood test.

The CIT process

Once a police officer has stopped a driver, the officer may require the driver to carry out a CIT if the officer has good cause to suspect a driver has consumed drugs. An officer cannot require a driver to undergo a CIT if the driver has returned a first positive oral fluid test or 2 consecutive positive oral fluid tests for a single drug. A driver who fails the first oral fluid test for more than 1 drug can be required to undergo a CIT.

A driver who fails a CIT would be required to take an evidential blood test and would be subject to both infringement and criminal penalties, depending on the levels of drugs in their blood sample.

A driver who passes the CIT would be free to go after the test is completed. Police officers would not be able switch to the oral fluid testing process after they have commenced the CIT process.

Criminal limits based on impairment

The Bill proposes that criminal limits for qualifying drugs be specified for analysis of blood samples, informed by advice from an expert panel of medical and scientific professionals.

These criminal limits would be specified in a Schedule, and would be aligned with the drink driving measure of impairment equivalent to a blood alcohol concentration of 80 mg per 100 ml. The Bill as introduced does not contain these limits, but includes a power for limits of qualifying drugs to be added or amended through Order in Council, subject to safeguards (including a parliamentary confirmation process). The intention is for criminal limits to be added through a supplementary order paper before the Bill is enacted.

Evidential blood tests could be used to test for any qualifying drug as defined in the Land Transport Act 1998.

Qualifying drugs without criminal limits

A wide range of impairing drugs are consumed and could be consumed by drivers in New Zealand. Only a relatively small number of these drugs would, at least initially, have criminal limits set for them.

The Bill proposes to create 2 separate offence pathways, depending on whether or not a driver has undergone a CIT.

Drivers would continue to be charged with a criminal offence following a failed CIT where the driver’s blood sample contains the presence of any qualifying drug without criminal limits set.

An infringement penalty would apply for the presence of any qualifying drugs that do not have any limits set when impairment has not been established through a CIT. Criminal and criminal combination offences would continue to apply to drivers who have not gone through the CIT process if any qualifying drugs with criminal limits were found in their system.

Injured drivers and drivers involved in a crash

Enforcement officers would continue to be able to require injured drivers to provide an evidential blood sample in a hospital or medical centre.

A driver involved in a crash but not injured would be required to take an evidential blood test if the driver produces 2 positive oral fluid test results and an enforcement officer has good cause to suspect that another person has been injured or killed as a result of the crash.

The offence and penalty regime for hospitalised drivers and drivers involved in a crash would be aligned with the oral fluid testing regime.

Offences and penalties

The Bill proposes to establish both infringement and criminal offences, depending on the testing process and the quantity of drugs found in a driver’s system. In recognition of the additional road safety risk of driving after consuming multiple drugs (or drugs and alcohol), the Bill also introduces an infringement combination offence and a criminal combination offence, which would apply in different scenarios.

The Bill proposes to establish the following offences and penalties:

  • an infringement offence for driving or attempting to drive a motor vehicle on a road with a specified drug in the person’s blood at the infringement level ($200 infringement fee, 50 demerit points and a 12-hour suspension from driving):

  • an infringement combination offence for driving or attempting to drive a motor vehicle on a road with more than 1 substance in the person’s oral fluid, or more than 1 substance in the person’s blood below the criminal limit ($400 infringement fee, 75 demerit points and a 12-hour suspension from driving):

  • a criminal offence for driving or attempting to drive a motor vehicle on a road with a specified drug in the person’s blood at or above the criminal level (a prison term of up to 3 months or a fine of up to $4,500, and a mandatory disqualification from driving of 6 months or more):

  • a criminal combination offence for driving or attempting to drive a motor vehicle on a road with multiple substances in the person’s blood and at least 1 at or above the criminal limit (a prison term of up to 6 months or a fine not exceeding $4,500, and a mandatory disqualification from driving of 9 months or more):

  • a criminal offence for third and subsequent convictions for drug driving aligned with current offences and penalties for drink and drug driving (a prison term of up to 2 years or a fine not exceeding $6,000, and a mandatory disqualification from driving for 1 year or more):

  • a criminal offence if a driver has a blood drug level at the infringement level, and has caused the injury or death of a person (a prison term of up to 3 years or a fine not exceeding $10,000 and a mandatory disqualification from driving of 1 year or more).

Medical defence available in certain circumstances

The Bill extends the existing medical defence to be available to drivers who have taken prescription drugs in accordance with their prescription and any instructions from a health practitioner or from the manufacturer of the qualifying drug and have provided a blood sample through an evidential blood test.

Harm minimisation approach to drug driving

The regime proposes a harm minimisation approach to drug driving. Compulsory referrals for assessment to drug education or rehabilitation programmes would be required for second criminal offences in some situations and all third and subsequent criminal offences.

Departmental disclosure statement

The Ministry of Transport is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Transport prepared a regulatory impact statement in December 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for when the Bill comes into force. The Bill is to come into force 12 months after the date of Royal assent.

Part 1Amendments to Land Transport Act 1998

Clause 3 provides for the Part to amend the Land Transport Act 1998.

Clause 4 amends section 2(1) to insert new definitions relating to oral fluid testing and amend the definitions of compulsory impairment test, positive, and qualifying drug.

Amendments to primary responsibilities concerning use of drugs

Clause 5 replaces section 11A to provide that a person may not drive or attempt to drive if their oral fluid indicates, or their blood contains, evidence of the use of a qualifying drug.

Clause 6 amends section 13 to add an obligation to comply with new sections 71A, 71B, 71C, 71E, and 71F (which relate to enforcement procedures relating to drug testing) and all lawful requirements, directions, and requests made by an enforcement officer under those sections.

Drug-related offences and penalties

Clause 7 consequentially amends the heading to Part 5 to reflect that offences and penalties related to the use of drugs appear in Part 6 rather than Part 5.

Clause 8 consequentially amends the cross-heading above section 34 to reflect that the offences relating to driving dealt with in sections 34 to 39 exclude offences involving drugs as well as alcohol.

Clause 9 replaces section 57A, which provides that a person who drives or attempts to drive commits an offence if the person fails to satisfactorily complete a compulsory impairment test and their blood contains evidence of the use of a qualifying drug.

New section 57A(1) extends this offence to provide that it is also an offence to drive or attempt to drive with blood containing evidence of the use of a qualifying drug listed in new Schedule 5 (whether or not the person was required to undergo a compulsory impairment test before the blood specimen was taken) if the proportion of the drug in the person’s blood equals or exceeds the threshold specified for the drug in new Schedule 5.

New section 57A(2) and (3) creates new infringement offences for driving or attempting to drive with blood that contains, or oral fluid that indicates, the use of a qualifying drug in circumstances that do not constitute an offence against new section 57A(1).

New section 57B(1) creates a new offence of driving or attempting to drive while a person’s blood contains evidence of 2 or more qualifying drugs if—

  • the proportion of 1 or more of drugs in the person’s blood equals or exceeds the level specified in new Schedule 5; or

  • 1 or more of the qualifying drugs are not listed in new Schedule 5 and the blood specimen was taken after the person failed to satisfactorily complete a compulsory impairment test.

New section 57B(2) and (3) creates new infringement offences of driving or attempting to drive while a person’s blood contains evidence of, or their oral fluid indicates, the use of 2 or more qualifying drugs in circumstances that do not constitute an offence against new section 57B(1).

New section 57C(1) creates a new offence of driving or attempting to drive while a person’s blood contains both alcohol and evidence of a qualifying drug if—

  • the proportion of alcohol in the person’s blood exceeds specified blood-alcohol levels; or

  • the proportion of a qualifying drug in the person’s blood equals or exceeds the level specified for that drug in new Schedule 5; or

  • the blood specimen was taken after the person failed to satisfactorily complete a compulsory impairment test and there is a qualifying drug in the person’s blood that is not listed in new Schedule 5.

New section 57C(2), (3), and (4) creates new infringement offences of driving or attempting to drive while the person’s blood or breath contains alcohol while the person’s blood contains evidence of, or the person’s oral fluid indicates, the use of a qualifying drug in circumstances that do not constitute an offence against new section 57C(1).

New section 57D sets the maximum penalties on conviction for offences against new sections 57A(1), 57B(1), and 57C(1). The maximum penalty on conviction for an offence against new section 57A(1) is the same as for an offence against existing section 57A(1). The maximum penalty on conviction for an offence against new section 57B(1) or 57C(1) is imprisonment for a term not exceeding 6 months or a fine not exceeding $4,500. This is higher than the maximum penalty on conviction for an offence against new section 57A(1) (imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500). The mandatory disqualification from driving is also longer (9 months instead of 6 months).

Clause 10 consequentially amends section 58(1)(b) for consistency with new section 61(2)(b) (as inserted by clause 13(1)) and section 62(1)(b) (as amended by clause 14(1)).

Clause 11 amends section 59, which provides for an offence of failing or refusing to remain at a specified place or to accompany an enforcement officer. Clause 11 expands sections 59 so that it applies if a person fails or refuses to remain at a place where the person underwent an oral fluid test or to accompany an enforcement officer when required to do so under any of new sections 71A, 71B, and 71E.

Clause 12 consequentially amends section 60, which provides for an offence of failing or refusing to permit a blood specimen to be taken or to undergo a compulsory impairment test.

Clause 13 amends section 61, which provides for the offences of causing bodily injury to, or the death of, a person while driving with blood-alcohol above specified limits or while under the influence of drink or a drug to such an extent that the person is incapable of having proper control of the vehicle. Clause 13 expands section 61 to provide that it is also an offence against section 61 to cause bodily injury to, or the death of, a person while driving if—

  • the proportion of a qualifying drug equals or exceeds the level specified for the drug in new Schedule 5; or

  • the person failed to satisfactorily complete a compulsory impairment test and there is a drug in the person’s blood that is not listed in new Schedule 5.

Clause 14 amends section 62, which provides for further offences of causing injury to, or the death of, a person while driving while under the influence of a qualifying drug or alcohol or if the person fails a compulsory impairment test and has a qualifying drug in the person’s blood. New section 62(1B) replaces the offence in existing section 62(1B) and expands the offence to provide that it is also an offence against new section 62(1B) to cause injury to, or the death of, a person while the person has a qualifying drug in the person’s blood if the proportion of the drug in the person’s blood is less than the level specified for that drug in new Schedule 5 or the person has not been required to undergo a compulsory impairment test.

Clause 15 consequentially amends section 64, which provides for defences to proceedings for offences relating to drug-driving, to ensure that the defences apply to proceedings against new sections 57A, 57B, or 57C.

Clause 16 amends section 65AB, which specifies which offences are qualifying offences for the purpose of an alcohol interlock sentence, to provide that new section 57C(1) is a qualifying offence because intoxication is an element of that offence.

Blood test fee

Clause 17 amends section 67, which provides for the circumstances in which a person is liable to pay a blood test fee and any associated medical expenses following the taking of a blood specimen. Clause 17(1) amends section 67(1)(a) to restrict the application of the existing provision to the taking of blood specimens following breath testing for alcohol. New section 67(1)(aa) provides for the circumstances in which a person is liable to pay a blood test fee and any associated medical expenses if a person elects to, or is required to, permit the taking of a blood specimen after undergoing oral fluid testing for drugs or a compulsory impairment test.

Enforcement procedures

Clause 18 amends section 68, which provides for the enforcement procedures for breath screening tests, to provide that 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 and regardless of the result of any oral fluid test.

Clause 19 consequentially amends the heading to section 70A, which provides for the circumstances in which a person has a right to elect a blood test, to clarify that the provision only relates to the right to elect a blood test following a positive evidential breath test. New section 71D provides for the right to elect a blood test following 2 positive oral fluid tests.

Clause 20 replaces section 71A, which provides for the enforcement procedures for compulsory impairment tests. New section 71F substantially re-enacts section 71A with an amendment to provide that an enforcement officer may exercise their powers under that section in addition to oral fluid tests in the circumstances specified in new section 71F(5)(b) and (c).

New section 71A provides for the circumstances in which an enforcement officer may require a person to undergo a first oral fluid test and provides for the enforcement procedures in relation to a first oral fluid test.

New section 71B provides that an enforcement officer must require a person to undergo a second oral fluid test if the first oral fluid test result is positive and provides for the enforcement procedures in relation to a second oral fluid test.

New section 71C provides that a person must undergo a further oral fluid test if either the first or second oral fluid test fails to produce a result. The application of new section 71C is limited to 1 further test for each of the first oral fluid test and the second oral fluid test.

New section 71D provides that a person has the right to elect a blood test if a person has undergone 2 oral fluid tests and the results of both tests indicate the use of 1 or more of the same qualifying drugs.

New section 71E provides for the circumstances in which a person may be required to accompany an enforcement officer to undergo a blood test after the person has undergone, or was required to undergo, an oral fluid test.

Clause 21 inserts a new cross-heading above section 72 to indicate that sections 72 to 74 deal with enforcement procedures relating to the taking of blood specimens.

Clause 22 amends section 72, which provides for circumstances in which a person must permit the taking of a blood specimen (other than in a hospital or medical centre), to align with the circumstances in which a person must accompany an enforcement officer for the purposes of a blood test in new section 71E.

Clause 23 replaces section 73A. New section 73A expands existing section 73A to provide that neither a blood specimen nor an oral fluid sample may be used as evidence of the use of a controlled drug in a prosecution for an offence against the Misuse of Drugs Act 1975. New section 73A(1) also clarifies that evidence of alcohol or the use of a qualifying drug in a blood specimen taken under section 72 or 73 can be used as evidence in a prosecution for any offence against the Land Transport Act 1998.

Clause 24 consequentially amends the heading to section 75 to clarify that certificates may be used in drug-driving proceedings as well as blood-alcohol proceedings.

Clause 25 inserts new section 77A to provide for the presumptions that apply in proceedings for offences involving evidence of the use of drugs. The presumptions are broadly equivalent to the presumptions relating to alcohol testing, except that they provide that an oral fluid sample is not admissible in evidence for any proceedings other than the infringement offences in new sections 57A(3), 57B(3), and 57C(4).

Clause 26 amends section 79, which provides for the circumstances in which certificates in blood-alcohol and drug-driving proceedings are not admissible in proceedings, to add to the circumstances in which a court may make an order that certain persons involved in the giving of a certificate that certified the presence of or a specified proportion of a qualifying drug must appear as a witness in proceedings.

Mandatory prohibition from driving for 12-hour period

Clause 27 inserts new section 94A to provide that an enforcement officer must forbid a person from driving for a 12-hour period if the person has undergone 2 oral fluid tests and it appears to the enforcement officer that the results of both tests are positive.

Clause 28 consequentially amends section 95, which provides for the circumstances in which an enforcement officer must suspend a person’s driver licence for 28 days, to provide than an enforcement officer may do so if the person’s blood contains a qualifying drug that is listed in new Schedule 5 and the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule or the person failed to satisfactorily complete a compulsory impairment test when required to do so and their blood contains evidence of the use of a qualifying drug that is not listed in new Schedule 5.

Impoundment of vehicles

Clause 29 consequentially amends section 96, which provides for the circumstances in which an enforcement officer must seize and impound a motor vehicle for 28 days, to provide that an enforcement officer may do so if a person’s blood contains a qualifying drug that is listed in new Schedule 5 and the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule or the person failed to satisfactorily complete a compulsory impairment test when required to do so and their blood contains evidence of the use of a qualifying drug that is not listed in new Schedule 5.

Clause 30 consequentially amends section 99, which provides for the circumstances in which a court may make an order to reduce the disqualification or disqualifications of a person from holding a driver licence, to expand the application of the provision to disqualifications under new sections 57B(1) and 57C(1).

Powers of entry and immobilisation

Clause 31 consequentially amends section 119, which provides for the circumstances in which an enforcement officer may, without warrant, enter any premises for the purpose of alcohol-testing, to provide that it also applies for the purpose of drug-testing.

Clause 32 consequentially amends section 120, which provides an enforcement officer with a power to arrest a person without warrant in certain circumstances relating to alcohol- and drug-related offences, to replace references to section 71A with references to new section 71F (the new section providing for enforcement procedures for compulsory impairment tests).

Clause 33 amends section 121, which provides for the circumstances in which an enforcement officer may immobilise a vehicle or forbid a person from driving a vehicle for a specified time, to add that an enforcement officer may do so if the enforcement officer has reasonable grounds to believe the person has failed or refused to permit a blood specimen to be taken when required to do so after the person also failed or refused to undergo an evidential breath test or oral fluid test.

Clause 34 amends section 167, which contains the empowering provision for regulations under the Act relating to (among other things) infringement offences, to provide that the maximum number of demerit points that may be set by regulations in the case of an offence against new section 57B or 57C is 75.

Clause 35 inserts new sections 167A and 167B to allow the level specified in new Schedule 5, which determines the proportion of a qualifying drug in a person’s blood at or over which a person commits an offence against new sections 57A(1), 57B(1), and 57C(1), to be set or amended by Order in Council.

New section 167A(2) requires the Minister of Transport and the Minister of Police seek advice from independent experts and have regard to the purpose of aligning the level specified in new Schedule 5 as far as practicable with a blood-alcohol limit of 80 mg of alcohol per 100 ml of blood.

New section 167A(5) provides that an Order in Council made under new section 167A(1) is a confirmable instrument.

New section 167B requires the independent experts appointed for the purposes of new section 167A to have appropriate medical and scientific expertise. New section 167B also provides that 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 and the drug-concentration levels in the blood that are likely to impair a person’s driving to a similar extent as a blood alcohol level of 80 mg of alcohol per 100 ml of blood.

Clause 36 inserts new section 168D which provides that the Minister of Police may approve an oral fluid test or testing device by notice in the Gazette only after—

  • consulting with the Minister of Transport and the Minister of Research, Science and Innovation; and

  • having regard to the accuracy of the test; and

  • being satisfied that the test will return a positive result only if the testing device detects a presence of a qualifying drug at a level that indicates recent use of a qualifying drug specified in the notice.

Analysing oral fluid samples for statistical or research purposes

Clause 37 consequentially amends section 209, which relates to the taking of blood specimens and other bodily samples for statistical or research purposes, to replace the references to “saliva” with references to “oral fluid”.

Clause 38 amends section 209A, which relates to analysing blood specimens for statistical research purposes related to the use of drugs or alcohol, to expand its application to analysing oral fluid samples for the same purposes.

Transitional, savings, and related provisions

Clause 39 inserts new Part 2 into Schedule 1. New Part 2 provides for transitional matters.

Level of qualifying drugs at and over which person commits offence

Clause 40 inserts new Schedule 5. New Schedule 5 will set the levels at or over which a person commits an offence against new section 57A(1), 57B(1), or 57C(1).

Part 2Related and consequential amendments

Subpart 1—Amendments to Acts

This subpart provides for consequential amendments to the Legislation Act 2012 and the Sentencing Act 2002.

Subpart 2—Amendments to Land Transport (Offences and Penalties) Regulations 1999

This subpart amends the Land Transport (Offences and Penalties) Regulations 1999 to set the infringement fees and demerit points for the new infringement offences under new sections 57A to 57C.

Hon Julie Anne Genter

Land Transport (Drug Driving) Amendment Bill

Government Bill

317—1

Contents

Explanatory note
1Title
2Commencement
3Amendments to Land Transport Act 1998
4Section 2 amended (Interpretation)
5Section 11A replaced (Persons may not drive or attempt to drive while impaired and their blood contains evidence of use of qualifying drug)
11APersons not to drive or attempt to drive while oral fluid or blood contains qualifying drug
6Section 13 amended (Drivers and other road users to comply with directions of enforcement officers, etc)
7Part 5 heading amended
8Cross-heading above section 34 amended
9Section 57A replaced (Driving while impaired and with blood that contains evidence of use of qualifying drug)
57ADriving with oral fluid that indicates or blood that contains evidence of use of 1 qualifying drug
57BDriving while blood contains evidence of, or oral fluid indicates, use of 2 or more qualifying drugs
57CDriving while blood or breath contains alcohol and blood contains evidence of or oral fluid indicates use of qualifying drug
57DPenalties for offences against sections 57A(1), 57B(1), and 57C(1)
10Section 58 amended (Contravention of section 12)
11Section 59 amended (Failure or refusal to remain at specified place or to accompany enforcement officer)
12Section 60 amended (Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test)
13Section 61 amended (Person in charge of motor vehicle causing injury or death)
14Section 62 amended (Causing injury or death in circumstances to which section 61 does not apply)
15Section 64 amended (Defences)
16Section 65AB amended (Qualifying offences)
17Section 67 amended (Blood test fee)
18Section 68 amended (Who must undergo breath screening test)
19Section 70A amended (Right to elect blood test)
20Section 71A replaced (Requirement to undergo compulsory impairment test)
71AWho must undergo first oral fluid test
71BWho must undergo second oral fluid test
71CPerson must undergo further oral fluid test if either first or second oral fluid test fails to produce result
71DPerson has right to elect blood test after 2 positive oral fluid tests
71EPerson may be required to accompany enforcement officer to undergo blood test
71FWho must undergo compulsory impairment test
21New cross-heading above section 72 inserted
22Section 72 amended (Who must give blood specimen at places other than hospital or medical centre)
23Section 73A replaced (Evidence of controlled drug in blood sample taken under section 72 or 73 may not be used as evidence of use of controlled drugs in prosecutions under Misuse of Drugs Act 1975)
73APurposes for which blood specimen taken under section 72 or 73 may be used as evidence
24Section 75 amended (Certificates in blood-alcohol proceedings)
25New section 77A inserted (Presumptions relating to drug-testing)
77APresumptions relating to drug-testing
26Section 79 amended (Circumstances in which certificate not admissible in proceedings)
27New section 94A and cross-heading inserted
94AMandatory prohibition from driving for 12-hour period if 2 oral fluid tests appear positive
28Section 95 amended (Mandatory 28-day suspension of driver licence in certain circumstances)
29Section 96 amended (Vehicle seized and impounded for 28 days in certain circumstances)
30Section 99 amended (Court may reduce disqualification)
31Section 119 amended (Powers of entry)
32Section 120 amended (Arrest of persons for alcohol or drug-related offences, or assault on enforcement officer)
33Section 121 amended (Enforcement officer may immobilise vehicle, etc, in specified circumstances)
34Section 167 amended (Regulations)
35New sections 167A and 167B inserted
167ASetting or amending level of qualifying drug in blood specimen at or over which person commits offence against section 57A(1), 57B(1), or 57C(1)
167BMinisters may appoint independent experts for purposes of section 167A
36New section 168D and cross-heading inserted
168DGazette notices approving oral fluid tests and oral fluid testing devices
37Section 209 amended (Taking of blood specimens for statistical or research purposes)
38Section 209A amended (Analysing blood specimens for statistical or research purposes related to use of drugs or alcohol)
39Schedule 1 amended
40New Schedule 5 inserted
41Amendment to Legislation Act 2012
42Amendment to Sentencing Act 2002
43Amendments to Land Transport (Offences and Penalties) Regulations 1999

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Land Transport (Drug Driving) Amendment Act 2020.

2 Commencement

This Act comes into force immediately after the expiry of the 12-month period that starts on the date of Royal assent.

Part 1 Amendments to Land Transport Act 1998

3 Amendments to Land Transport Act 1998

This Part amends the Land Transport Act 1998.

4 Section 2 amended (Interpretation)

(1)

In section 2(1), insert in their appropriate alphabetical order:

first oral fluid test means an oral fluid test carried out under section 71A

oral fluid test means a test that is carried out by means of an oral fluid testing device in a manner prescribed for that device by the Minister of Police under section 168D

oral fluid testing device means a device of a kind approved by the Minister of Police under section 168D for the purpose of testing oral fluid for the presence of the qualifying drugs specified in the notice

second oral fluid test means an oral fluid test carried out under section 71B

(2)

In section 2(1), definition of compulsory impairment test, replace “determine” with “indicate”.

(3)

In section 2(1), replace the definition of positive with:

positive,—

(a)

in relation to an evidential breath test, means an evidential breath test result that indicates,—

(i)

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

(ii)

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

(iii)

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:

(b)

in relation to an oral fluid test, means an oral fluid test result that indicates that the oral fluid of the person who underwent the test contains 1 or more qualifying drugs

(4)

In section 2(1), definition of qualifying drug, replace paragraph (a)(i) with:

(a)

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

Amendments to primary responsibilities concerning use of drugs

5 Section 11A replaced (Persons may not drive or attempt to drive while impaired and their blood contains evidence of use of qualifying drug)

Replace section 11A with:

11A Persons not to drive or attempt to drive while oral fluid or blood contains qualifying drug

A person may not drive or attempt to drive a motor vehicle while—

(a)

the person’s oral fluid, as ascertained by the results of 2 oral fluid tests subsequently undergone by the person under any of sections 71A to 71C, indicates use of a qualifying drug; or

(b)

the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, contains evidence of the use of a qualifying drug.

6 Section 13 amended (Drivers and other road users to comply with directions of enforcement officers, etc)

Replace section 13(1) and (2) with:

(1)

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, and blood tests).

(2)

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.

Drug-related offences and penalties

7 Part 5 heading amended

In the Part 5 heading, replace alcohol-related with alcohol- and drug-related.

8 Cross-heading above section 34 amended

In the cross-heading above section 34, after alcohol, insert or drugs.

9 Section 57A replaced (Driving while impaired and with blood that contains evidence of use of qualifying drug)

Replace section 57A with:

57A Driving with oral fluid that indicates or blood that contains evidence of use of 1 qualifying drug

(1)

A person who drives or attempts to drive a motor vehicle on a road commits an 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 evidence of the use of 1 qualifying drug and,—

(a)

if the qualifying drug is listed in Schedule 5, the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule for the drug; or

(b)

if the qualifying drug is not listed in Schedule 5, the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F.

(2)

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 evidence of the use of 1 qualifying drug and,—

(a)

if the qualifying drug is listed in Schedule 5, the proportion of the drug is less than the level specified in that schedule for the drug; or

(b)

if the qualifying drug is not listed in Schedule 5, the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

(3)

A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—

(a)

the results of 2 oral fluid tests subsequently undergone by the person under any of sections 71A to 71C are positive; and

(b)

the first oral fluid test and the second oral fluid test indicate the use of the same qualifying drug; and

(c)

the person does not elect to have a blood test in accordance with section 71D.

57B Driving while blood contains evidence of, or oral fluid indicates, use of 2 or more qualifying drugs

(1)

A person who drives or attempts to drive a motor vehicle on a road commits an offence if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of 2 or more qualifying drugs and—

(a)

the proportion of 1 or more of the qualifying drugs in the person’s blood equals or exceeds the level specified in Schedule 5 for the drug; or

(b)

if 1 or more of the qualifying drugs in the person’s blood are not listed in Schedule 5, the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F.

(2)

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 under section 72 or 73, contains evidence of the use of 2 or more qualifying drugs but,—

(a)

if 1 or more of the qualifying drugs in the person’s blood are listed in Schedule 5, the proportion of each of those qualifying drugs in the person’s blood is less than the level specified in that schedule for each drug:

(b)

if 1 or more of the qualifying drugs in the person’s blood are not listed in Schedule 5, the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

(3)

A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—

(a)

the results of 2 oral fluid tests subsequently undergone by the person under any of sections 71A to 71C are positive; and

(b)

the first oral fluid test and the second oral fluid test indicate the use of 2 or more of the same qualifying drugs; and

(c)

the person does not elect to have a blood test in accordance with section 71D.

57C Driving while blood or breath contains alcohol and blood contains evidence of or oral fluid indicates use of qualifying drug

(1)

A person who drives or attempts to drive a motor vehicle on a road commits an offence if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains both alcohol and evidence of the use of a qualifying drug if any or all of the following apply:

(a)

the proportion of alcohol in the person’s blood—

(i)

exceeds 80 milligrams of alcohol per 100 millilitres of blood; or

(ii)

if the person is younger than 20, exceeds 30 milligrams of alcohol per 100 millilitres of blood; or

(iii)

if the person holds an alcohol interlock licence or zero alcohol licence, does not exceed 50 milligrams of alcohol per 100 millilitres of blood:

(b)

the proportion of a qualifying drug in the person’s blood that is listed in Schedule 5 equals or exceeds the level specified in that schedule for the drug:

(c)

if the person’s blood contains evidence of the use of a qualifying drug that is not listed in Schedule 5, the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F.

(2)

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 under section 72 or 73, contains both alcohol and evidence of the use of a qualifying drug but—

(a)

the proportion of alcohol in the person’s blood equals or is less than—

(i)

80 milligrams of alcohol per 100 millilitres of blood; or

(ii)

if the person is younger than 20, 30 milligrams of alcohol per 100 millilitres of blood; and

(b)

if the person’s blood contains evidence of the use of 1 or more qualifying drugs that are listed in Schedule 5, the proportion of each of those drugs in the person’s blood is less than the level specified in that schedule for the drug; and

(c)

if the person’s blood contains evidence of the use of a qualifying drug that is not listed in Schedule 5, the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

(3)

A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if —

(a)

the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains alcohol but the proportion of alcohol in the person’s blood equals or is less than—

(i)

80 milligrams of alcohol per 100 millilitres of blood; or

(ii)

if the person is younger than 20, 30 milligrams of alcohol per 100 millilitres of blood; and

(b)

the results of 2 oral fluid tests subsequently undergone by the person under any of sections 71A to 71C are positive and—

(i)

the first oral fluid test and the second oral fluid test indicate the use of the same qualifying drug; and

(ii)

the person does not elect to have a blood test in accordance with section 71D.

(4)

A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—

(a)

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—

(i)

400 micrograms of alcohol per litre of breath; or

(ii)

if the person is younger than 20, 150 micrograms of alcohol per litre of breath; and

(b)

the results of 2 oral fluid tests subsequently undergone by the person under any of sections 71A to 71C are positive and—

(i)

the first oral fluid test and the second oral fluid test indicate the use of the same qualifying drug; and

(ii)

the person does not elect to have a blood test in accordance with section 71D.

57D Penalties for offences against sections 57A(1), 57B(1), and 57C(1)

(1)

If a person is convicted of a first or second offence against section 57A(1),—

(a)

the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b)

the court must order the person to be disqualified for 6 months or more from holding or obtaining a driver licence.

(2)

If a person is convicted of a first or second offence against section 57B(1) or 57C(1),—

(a)

the maximum penalty is imprisonment for a term not exceeding 6 months or a fine not exceeding $4,500; and

(b)

the court must order the person to be disqualified for 9 months or more from holding or obtaining a driver licence.

(3)

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),—

(a)

the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b)

the court must order the person to be disqualified for more than 1 year from holding or obtaining a driver licence.

(4)

If an offence against section 57A(1), 57B(1), or 57C(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.

(5)

Subsection (3)(b) does not apply if an order is made under section 65.

(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).

10 Section 58 amended (Contravention of section 12)

In section 58(1)(b), replace “controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975” with “qualifying drug”.

11 Section 59 amended (Failure or refusal to remain at specified place or to accompany enforcement officer)

(1)

In section 59(1)(b) and (c), replace “71A” with 71A, 71B, 71E, 71F.

(2)

In section 59(1)(d), after “section 69 or a compulsory impairment test under section 71A”, insert “, an oral fluid test under a requirement under section 71A or 71B, or a compulsory impairment test under section 71F.

12 Section 60 amended (Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test)

(1)

In section 60(1)(d), replace “section 71A” with section 71F.

(2)

In section 60(3), replace “57A(1)” with 57A(1), 57B(1), 57C(1),”.

13 Section 61 amended (Person in charge of motor vehicle causing injury or death)

(1)

Replace section 61(2)(b) and (c) with:

(b)

if the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug and,—

(i)

if the qualifying drug is listed in Schedule 5, the proportion of the drug in the person’s blood equals or exceeds the level specified in that schedule for the drug; or

(ii)

if the qualifying drug is not listed in Schedule 5, the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F.

(2)

In section 61(2A), delete “or (2)(c)”.

(3)

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)”.

14 Section 62 amended (Causing injury or death in circumstances to which section 61 does not apply)

(1)

In section 62(1)(b), replace “controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975” with “qualifying drug”.

(2)

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 the blood of the person driving, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug and,—

(a)

if the qualifying drug is listed in Schedule 5, the proportion of the drug in the person’s blood is less than the level specified in that schedule for the drug; or

(b)

if the qualifying drug is not listed in Schedule 5, the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

15 Section 64 amended (Defences)

(1)

In section 64(1A), replace “section 57A(1)” with section 57A(1) or (2), 57B(1) or (2), 57C(1) or (2),.

(2)

In section 64(2), replace “and 77” with “77, and 77A.

16 Section 65AB amended (Qualifying offences)

In section 65AB(1), after “57AA,”, insert 57C,”.

Blood test fee

17 Section 67 amended (Blood test fee)

(1)

In section 67(1)(a)(i), replace “72(1)” with 72(1)(a)(i), (b), (c), or (d)”.

(2)

After section 67(1)(a), insert:

(aa)

any person who—

(i)

elects or is required to undergo a blood test under section 71D or 72(1)(a)(ii), (e), (f), or (g); and

(ii)

is advised in accordance with section 71A(4)(c), 71D(3), or 72(1F) before undergoing the blood test; and

(iii)

commits an offence against section 57A(1), 57B(1), or 57C(1).

Enforcement procedures

18 Section 68 amended (Who must undergo breath screening test)

After section 68(5), insert:

(6)

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 outcome of any such tests.

19 Section 70A amended (Right to elect blood test)

Replace the heading to section 70A with Who has right to elect blood test after positive evidential breath test.

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 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; but

(b)

must not require a person to undergo an 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 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); 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).

(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 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.

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).

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 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 required to do so by an enforcement officer under section 71F.

(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.

21 New cross-heading above section 72 inserted

After section 71A, insert:

Enforcement procedures involving taking of blood specimens

22 Section 72 amended (Who must give blood specimen at places other than hospital or medical centre)

(1)

Replace section 72(1)(a) with:

(a)

the person fails or refuses to undergo without delay—

(i)

an evidential breath test after having been required to do so by an enforcement officer under section 69; or

(ii)

an oral fluid test after having been required to do so by an enforcement officer under any of sections 71A to 71C; or

(2)

Replace section 72(1)(e) with:

(e)

the person has undergone a second oral fluid test under section 71B and—

(i)

it appears to the officer that the test is positive; and

(ii)

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

(f)

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

(g)

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 required to do so by an enforcement officer under section 71F.

(3)

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.

(4)

In section 72(1E), replace “(c), (d), or (e)” with “(c) or (d)”.

(5)

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), or (g) 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).

Evidential provisions

23 Section 73A replaced (Evidence of controlled drug in blood sample taken under section 72 or 73 may not be used as evidence of use of controlled drugs in prosecutions under Misuse of Drugs Act 1975)

Replace section 73A with:

73A Purposes for which blood specimen taken under section 72 or 73 may be used as evidence

(1)

Evidence of alcohol or the use of a qualifying drug 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- and alcohol- testing).

(2)

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)

a positive oral fluid test taken under any of sections 71A to 71C:

(b)

a blood specimen taken under section 72 or 73.

24 Section 75 amended (Certificates in blood-alcohol proceedings)

In the heading to section 75, after blood-alcohol, insert and drug-driving.

25 New section 77A inserted (Presumptions relating to drug-testing)

After section 77, insert:

77A Presumptions relating to drug-testing

(1)

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.

(2)

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 2 oral fluid tests undergone by the person under any of sections 71A to 71C indicate use of the drug.

(3)

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—

(a)

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,—

(i)

that the second oral fluid test was positive; and

(ii)

that the positive results could be presumptive evidence that the person has committed an infringement offence against this Act if the person does not request a blood test within 10 minutes; 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)

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).

(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.

26 Section 79 amended (Circumstances in which certificate not admissible in proceedings)

Replace section 79(4)(c) to (e) with:

(c)

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,—

(i)

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

(ii)

in any other case not more than 50 milligrams of alcohol per 100 millilitres of blood; or

(d)

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

(e)

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 a qualifying drug,—

(i)

in the case of a qualifying drug listed in Schedule 5, less than the level specified in that schedule for that drug; or

(ii)

in the case of a qualifying drug not listed in Schedule 5, no evidence of the use of the qualifying drug.

Mandatory prohibition from driving for 12-hour period

27 New section 94A and cross-heading inserted

After section 94, insert:

Mandatory prohibition from driving following 2 positive oral fluid tests

94A Mandatory prohibition from driving for 12-hour period if 2 oral fluid tests appear positive

(1)

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 it appears to the enforcement officer that the results of both tests are positive.

(2)

The 12-hour period starts immediately after the enforcement officer notifies the person of the prohibition.

(3)

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.

Mandatory suspension of driver licence

28 Section 95 amended (Mandatory 28-day suspension of driver licence in certain circumstances)

(1)

In section 95(1)(a)(i), replace “57A,” with 57A(1), 57B(1), 57C(1),.

(2)

After section 95(1)(a)(i)(B), insert:

(C)

to have a proportion of a qualifying drug in the person’s blood that equals or exceeds the level specified for the qualifying drug in Schedule 5:

(D)

to have a qualifying drug in the person’s blood that is not listed in Schedule 5 after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F.

Impoundment of vehicles

29 Section 96 amended (Vehicle seized and impounded for 28 days in certain circumstances)

(1)

After section 96(1)(d)(i)(B), insert:

(BA)

proportion of a qualifying drug in the person’s blood that equals or exceeds the level specified for the qualifying drug in Schedule 5; or

(BB)

a qualifying drug in the person’s blood that is not listed in Schedule 5 after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer when required to do so under section 71F; or

(2)

In section 96(1)(d)(ii), replace “57A,” with 57A(1), 57B(1), 57C(1),.

Reduction of disqualifications

30 Section 99 amended (Court may reduce disqualification)

After section 99(1)(b)(via), insert:

(viaa)

section 57B(1):

(viab)

section 57C(1):

Powers of entry and immobilisation

31 Section 119 amended (Powers of entry)

In section 119(2)(a), replace “section 68 or section 69” with “section 68, 69, or 71A.

32 Section 120 amended (Arrest of persons for alcohol or drug-related offences, or assault on enforcement officer)

In section 120(1A), replace “section 71A” with section 71F.

33 Section 121 amended (Enforcement officer may immobilise vehicle, etc, in specified circumstances)

(1)

In section 121(1)(a)(B) and (C), replace “section 71A” with section 71F.

(2)

After section 121(1)(a)(i)(C), insert:

(D)

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

Regulations

34 Section 167 amended (Regulations)

Before section 167(2)(a), insert:

(aaa)

is 75 demerit points in the case of an offence against section 57B(1) or 57C(1):

35 New sections 167A and 167B inserted

After section 167, insert:

167A Setting or amending level of qualifying drug in blood specimen at or over which person commits offence against section 57A(1), 57B(1), or 57C(1)

(1)

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:

(a)

adding the name of any qualifying drug and the proportion of the qualifying drug in a person’s blood at or over which a person commits an offence against section 57A(1), 57B(1), or 57C(1); or

(b)

altering the specified proportion of a qualifying drug in a person’s blood at or over which a person commits an offence against section 57A(1), 57B(1), or 57C(1).

(2)

Before making a recommendation under subsection (1), the Ministers must, in respect of each qualifying drug referred to in the proposed order,—

(a)

seek and consider independent advice from independent experts appointed under section 167B on—

(i)

the specific effects of the drug, including pharmacological, psychoactive, and toxicological effects; and

(ii)

the proportion of the qualifying drug in a person’s blood that is likely to impair a person’s driving to a similar extent as a proportion of alcohol in the person’s blood exceeding 80 milligrams of alcohol per 100 millilitres of blood; and

(b)

have regard to the purpose of aligning the level specified in Schedule 5 for each qualifying drug as far as practicable with a blood-alcohol limit of 80 milligrams of alcohol per 100 millilitres of blood; and

(c)

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

(d)

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

(e)

consult the persons, representative groups, government departments, and Crown entities that the Ministers consider reasonable and appropriate to consult in the circumstances.

(3)

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.

(4)

An Order in Council made under subsection (1) or (3) is a legislative instrument and a disallowable instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(5)

The explanatory note of an Order in Council under subsection (1) must indicate that—

(a)

it is a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1))a) or (b) of that Act.

167B Ministers may appoint independent experts for purposes of section 167A

(1)

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 the setting of levels in Schedule 5.

(2)

The independent experts appointed under subsection (1) must have appropriate expertise in relevant medical and scientific fields, including pharmacology and toxicology.

(3)

The function of the independent experts is—

(a)

to carry out medical and scientific evaluations of qualifying drugs; and

(b)

to advise the Ministers on—

(i)

the specific effects of qualifying drugs, including the pharmacological, psychoactive, and toxicological effects; and

(ii)

the proportion of a qualifying drug in a person’s blood that is likely to impair a person’s driving to a similar extent as a proportion of alcohol in the person’s blood at or above 80 milligrams of alcohol per 100 millilitres of blood.

36 New section 168D and cross-heading inserted

After section 168C, insert:

Gazette notices

168D Gazette notices approving oral fluid tests and oral fluid testing devices

(1)

The Minister of Police may, by notice in the Gazette, 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 the qualifying drugs specified in the notice:

(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 in the Gazette under subsection (1), the Minister of Police must—

(a)

consult with 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 qualifying drug specified in the notice.

(3)

A notice or replacement notice given by the Minister of Police for any purpose specified in subsection (1) is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and may be amended from time to time, or revoked or replaced, by the responsible Minister in the same manner.

(4)

A notice or replacement notice under subsection (1) that is given by the Minister of Police in the Gazette for the purposes of approving a kind of device or a test may—

(a)

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:

(b)

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.

Analysing oral fluid samples for statistical or research purposes

37 Section 209 amended (Taking of blood specimens for statistical or research purposes)

In section 209, replace “saliva” with “oral fluid” in each place.

38 Section 209A amended (Analysing blood specimens for statistical or research purposes related to use of drugs or alcohol)

(1)

In the heading to section 209A, after Analysing, insert oral fluid or.

(2)

Replace section 209A(1) with:

(1)

A person may, for statistical or research purposes related to the use of drugs or alcohol, analyse or re-analyse in an approved laboratory—

(a)

an oral fluid sample taken from a person under any of sections 71A to 71C:

(b)

a blood specimen from a person taken under section 72 or 73:

(3)

In section 209A(3), after “No analysis of”, insert “an oral fluid sample or”.

(4)

Replace section 209A(4) with:

(4)

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.

(5)

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.

Transitional, savings, and related provisions

39 Schedule 1 amended

In Schedule 1, after Part 1, insert the Part 2 set out in Schedule 1 of this Act.

Level of qualifying drugs at and over which person commits offence

40 New Schedule 5 inserted

After Schedule 4, insert the Schedule 5 set out in Schedule 2 of this Act.

Part 2 Related and consequential amendments

Subpart 1—Amendments to Acts

Amendment to Legislation Act 2012

41 Amendment to Legislation Act 2012

(1)

This section amends the Legislation Act 2012.

(2)

In Schedule 2, insert in its appropriate alphabetical order:

Land Transport Act 1998167A(1)

Amendment to Sentencing Act 2002

42 Amendment to Sentencing Act 2002

(1)

This section amends the Sentencing Act 2002.

(2)

In section 129(1)(a), replace “57A(1)” with 57A(1), 57B(1), 57C(1),.

Subpart 2—Amendments to Land Transport (Offences and Penalties) Regulations 1999

43 Amendments to Land Transport (Offences and Penalties) Regulations 1999

(1)

This section amends the Land Transport (Offences and Penalties) Regulations 1999.

(2)

In Schedule 1, after the item relating to section 57(2A) of the Land Transport Act 1998, insert:

57A(2)Driving or attempting to drive with blood containing evidence of the use of a qualifying drug below the level specified in Schedule 5 of the Act500200
57A(3)Driving or attempting to drive with 2 oral fluid test results indicating use of a qualifying drug500200
57B(2)Driving or attempting to drive with blood containing evidence of use of more than 1 qualifying drug below the level specified in Schedule 5 of the Act for each drug1,000400
57B(3)Driving or attempting to drive with oral fluid test results indicating use of more than 1 qualifying drug1,000400
57C(2)Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and evidence of use of a qualifying drug below thresholds specified in Schedule 5 or where drug not listed in Schedule 51,000400
57C(3)Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and with oral fluid indicating use of a qualifying drug1,000400
57C(4)Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of a qualifying drug 1,000400

(3)

In Schedule 2, after the item relating to section 57AA(1) or (2) of the Land Transport Act 1998, insert:

57A(2)Driving or attempting to drive with blood containing evidence of the use of a qualifying drug below the level specified in Schedule 5 of the Act50
57A(3)Driving or attempting to drive with 2 oral fluid test results indicating use of a qualifying drug50
57B(2)Driving or attempting to drive with blood containing evidence of use of more than 1 qualifying drug below the level specified in Schedule 5 of the Act for each drug75
57B(3)Driving or attempting to drive with oral fluid test results indicating use of more than 1 qualifying drug75
57C(2)Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and evidence of use of a qualifying drug below thresholds specified in Schedule 5 or where drug not listed in Schedule 575
57C(3)Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and with oral fluid test results indicating use of a qualifying drug75
57C(4)Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of a qualifying drug 75

Schedule 1 New Part 2 inserted into Schedule 1

s 39

Part 2 Provision relating to Land Transport (Drug Driving) Amendment Act 2020

11 Conviction for offence against equivalent provisions of former enactment to be treated as relevant convictions for purposes of section 57D(4)

For the purposes of section 57D, a conviction for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in section 57D(4) is to be treated as a conviction for an offence specified in that subsection.

Schedule 2 New Schedule 5 inserted

s 40

Schedule 5 Level of qualifying drugs at and over which person commits offence against section 57A(1), 57B(1), or 57C(1)

ss 57A, 57B, 57C, 61, 62, 79, 95, 96

Qualifying drugLevel of qualifying drugs at and over which person commits offence against section 57A(1), 57B(1), or 57C(1)

No levels have been set as at the date on which this schedule was inserted into this Act by section 38 of the Land Transport (Drug Driving) Amendment Act 2020.