Land Transport (Drug Driving) Amendment Act 2022

If you need more information about this Act, please contact the administering agency: Ministry of Transport

Sections 14(3), 37, 40, and 42(2) and Schedules 1 and 2: editorial changes made, on 21 April 2023, by sections 86(1) and 87(l)(ii), (iii), and (iv) of the Legislation Act 2019 (2019 No 58).

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Land Transport (Drug Driving) Amendment Act 2022

Public Act		2022 No 5
Date of assent		11 March 2022
Commencement		see section 2

1	Title
2	Commencement
	Part 1 Amendments to Land Transport Act 1998
3	Amendments to Land Transport Act 1998
4	Section 2 amended (Interpretation)
	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)
	11A	Persons not to drive or attempt to drive while blood contains evidence of, or oral fluid indicates, use of qualifying drug
6	Section 13 amended (Drivers and other road users to comply with directions of enforcement officers, etc)
	Drug-related offences and penalties
7	Part 5 heading amended
8	Cross-heading above section 34 amended
9	Section 56 amended (Contravention of specified breath or blood-alcohol limit)
10	Section 57A replaced (Driving while impaired and with blood that contains evidence of use of qualifying drug)
	57A	Driving with blood that contains evidence of, or oral fluid that indicates, use of 1 qualifying drug
	57B	Driving while blood contains evidence of, or oral fluid indicates, use of 2 or more qualifying drugs
	57C	Driving while blood or breath contains alcohol and blood contains evidence of, or oral fluid indicates, use of 1 qualifying drug
	57D	Penalties for offences against sections 57A(1), 57B(1), and 57C(1)
11	Section 58 amended (Contravention of section 12)
12	Section 59 amended (Failure or refusal to remain at specified place or to accompany enforcement officer)
13	Section 60 amended (Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test)
14	Section 61 amended (Person in charge of motor vehicle causing injury or death)
15	Section 62 amended (Causing injury or death in circumstances to which section 61 does not apply)
16	Section 64 amended (Defences)
17	Section 65AB amended (Qualifying offences)
	Blood test fee
18	Section 67 amended (Blood test fee)
	Enforcement procedures
19	Section 68 amended (Who must undergo breath screening test)
20	Section 70A amended (Right to elect blood test)
21	Section 71A replaced (Requirement to undergo compulsory impairment test)
		Enforcement procedures for offences involving use of qualifying drugs
	71A	Who must undergo first oral fluid test
	71B	Who must undergo second oral fluid test
	71C	Person must undergo further oral fluid test if either first or second oral fluid test fails to produce result
	71D	Person has right to elect blood test after 2 positive oral fluid tests
	71E	Person may be required to accompany enforcement officer to undergo blood test
	71F	Who must undergo compulsory impairment test
	71G	Approval of oral fluid tests and oral fluid testing devices
		Enforcement procedures involving taking of blood specimens
22	Section 72 amended (Who must give blood specimen at places other than hospital or medical centre)
	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)
	73A	Purposes for which blood specimen taken under section 72 or 73 may be used as evidence
24	Section 75 amended (Certificates in blood-alcohol proceedings)
25	New section 77A inserted (Presumptions relating to drug testing)
	77A	Presumptions relating to drug testing
26	Section 79 amended (Circumstances in which certificate not admissible in proceedings)
	Mandatory prohibition from driving for 12-hour period
27	New section 94A and cross-heading inserted
		Mandatory prohibition from driving following 2 positive oral fluid tests
	94A	Mandatory prohibition from driving for 12-hour period if results of 2 oral fluid tests are positive
	Mandatory suspension of driver licence
28	Section 95 amended (Mandatory 28-day suspension of driver licence in certain circumstances)
	Impoundment of vehicles
29	Section 96 amended (Vehicle seized and impounded for 28 days in certain circumstances)
	Reduction of disqualifications
30	Section 99 amended (Court may reduce disqualification)
31	Section 103 amended (Persons who may apply to court for limited licence)
32	Section 104 amended (Issue of limited licence to be delayed or prohibited in certain cases)
	Powers of entry and immobilisation
33	Section 119 amended (Powers of entry)
34	Section 120 amended (Arrest of persons for alcohol or drug-related offences, or assault on enforcement officer)
35	Section 121 amended (Enforcement officer may immobilise vehicle, etc, in specified circumstances)
	Regulations
36	Section 167 amended (Regulations)
37	New sections 167AAA and 167AAB inserted
	167AAA	Setting or amending high-risk and tolerance blood concentration levels for drug-driving offences
	167AAB	Ministers may appoint independent experts for purposes of section 167AAA
	Analysing oral fluid samples for statistical or research purposes
38	Section 209 amended (Taking of blood specimens for statistical or research purposes)
39	Section 209A amended (Analysing blood specimens for statistical or research purposes related to use of drugs or alcohol)
	Transitional, savings, and related provisions
40	Schedule 1 amended
	Blood concentration levels for offences relating to drug driving
41	New Schedule 5 inserted
	Part 2 Related and consequential amendments
	Subpart 1—Amendments to Acts
	Amendment to Legislation Act 2019
42	Amendment to Legislation Act 2019
	Amendment to Sentencing Act 2002
43	Amendment to Sentencing Act 2002
	Subpart 2—Amendments to Land Transport (Offences and Penalties) Regulations 1999
44	Amendments to Land Transport (Offences and Penalties) Regulations 1999
	Schedule 1 New Part 6 inserted into Schedule 1
	Schedule 2 New Schedule 5 inserted
	Legislative history
	Administrative information

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Land Transport (Drug Driving) Amendment Act 2022.

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:

blood concentration level means, for a qualifying drug, the proportion of the drug in a person’s blood

evidence of use of a qualifying drug has the meaning set out in section 11A(2)

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

high-risk level means, for a listed qualifying drug, the blood concentration level specified for the drug in Part 1 of Schedule 5

listed qualifying drug means a qualifying drug listed in Schedule 5

oral fluid test means a test that is carried out—

(a)

by means of an oral fluid testing device; and

(b)

in a manner approved for that device by the Minister of Police under section 71G

oral fluid testing device means a device of a kind approved by the Minister of Police under section 71G for the purpose of testing oral fluid for the presence of the qualifying drugs specified in a notice made under that section

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

tolerance level means, for a listed qualifying drug, the blood concentration level specified for the drug in Part 2 of Schedule 5

unlisted qualifying drug means a qualifying drug not listed in Schedule 5

(2)

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

(3)

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

positive,—

(a)

in relation to the result of an evidential breath test, means the result of the test 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 the result of an oral fluid test, means the result of the test indicates that the concentration level of a qualifying drug in the oral fluid of the person who underwent the test equals or exceeds the level specified for the drug in a notice made under section 71G

(4)

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

(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 blood contains evidence of, or oral fluid indicates, use of qualifying drug

(1)

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

(a)

the person’s blood contains evidence of use of a qualifying drug (see sections 57A(1) and (2), 57B(1) and (2), and 57C(1) and (2)); or

(b)

the person’s oral fluid indicates use of a qualifying drug (see sections 57A(3), 57B(3), and 57C(3) and (4)).

(2)

A person’s blood contains evidence of use of a qualifying drug if—

(a)

the blood concentration level of a listed qualifying drug exceeds the tolerance level for the drug; or

(b)

the blood contains any level of an unlisted qualifying drug.

(3)

For the purposes of subsection (1)(b), a person’s oral fluid indicates use of a qualifying drug if the results of a first oral fluid test and a second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug.

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, compulsory impairment 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 56 amended (Contravention of specified breath or blood-alcohol limit)

In section 56(4), replace “subsection (1) or subsection (2), or any of sections 57A(1)” with “subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1)”.

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

Replace section 57A with:

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

Offence: driving while blood 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, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood—

(a)

contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or

(b)

contains evidence of use of an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.

Infringement offence: driving while blood contains evidence of use of 1 qualifying drug

(2)

A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the person’s blood—

(a)

contains evidence of use of 1 listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; or

(b)

contains evidence of use of 1 unlisted qualifying drug and the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

Infringement offence: driving while oral fluid indicates use of qualifying drug

(3)

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

(a)

the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and

(b)

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

Offence: driving while blood contains evidence of use of 2 or more qualifying drugs

(1)

(a)

1 or more of the drugs are listed qualifying drugs and the blood concentration level for 1 or more listed qualifying drugs exceeds the applicable high-risk level:

(b)

1 or more of the drugs are unlisted qualifying drugs and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.

Infringement offence: driving while blood contains evidence of use of 2 or more qualifying drugs

(2)

(a)

contains evidence of use of 2 or more listed qualifying drugs and the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; or

(b)

contains evidence of use of 2 or more unlisted qualifying drugs and the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken; or

(c)

contains evidence of use of 1 or more listed qualifying drugs and 1 or more unlisted qualifying drugs and—

(i)

the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; and

(ii)

the person was not required to undergo a compulsory impairment test under section 71F before the blood specimen was taken.

Infringement offence: driving while oral fluid indicates use of 2 or more qualifying drugs

(3)

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

(a)

the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of 2 or more of the same qualifying drugs; and

(b)

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 1 qualifying drug

Offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug

(1)

(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 a zero alcohol licence, equals or is less than 50 milligrams of alcohol per 100 millilitres of blood:

(b)

the drug is a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug:

(c)

the drug is an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F.

Infringement offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug

(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,—

(a)

contains alcohol and 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)

contains evidence of use of a qualifying drug and,—

(i)

if the drug is a listed qualifying drug, the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; and

(ii)

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

Infringement offence: driving while blood contains alcohol and oral fluid indicates use of 1 qualifying drug

(3)

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

(a)

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

(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 a first oral fluid test and the second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and

(c)

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

Infringement offence: driving while breath contains alcohol and oral fluid indicates use of 1 qualifying drug

(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 a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and

(c)

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

(5)

Subsections (2), (3), and (4) do not apply to a person who holds an alcohol interlock licence or a zero alcohol licence (see section 57AA for offences relating to contravention of specified breath or blood alcohol limits by a holder of an alcohol interlock licence or a zero alcohol licence).

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), or 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) or 57B(1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then the mandatory disqualification in subsection (1)(b), (2)(b), or (3)(b) does not apply and section 65AH(3)(b) applies.

(5)

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

(6)

For the purposes of this section, a conviction against a provision of the Transport Act 1962 corresponding to an offence specified in subsection (3) is to be treated as a conviction for an offence specified in that subsection.

(7)

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).

11 Section 58 amended (Contravention of section 12)

(1)

Replace section 58(1) and (1A) with:

(1)

A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.

(2)

In section 58(3), replace “57A(1)” with “57A(1), 57B(1), 57C(1)”.

12 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)(c)(i), replace “breath test or a blood test or” with “breath test, an oral fluid test, a blood test, or”.

(3)

Replace section 59(1)(d) with:

(d)

having undergone an evidential breath test under a requirement under section 69, an oral fluid test under a requirement under any of sections 71A to 71C, or a compulsory impairment test under section 71F, fails or refuses to remain at the place where the person underwent the test until after the result of the test is ascertained.

13 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),”.

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

(1)

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

(b)

if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person in charge—

(i)

contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or

(ii)

(2)

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

(3)

In section 61(3A), replace “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)”.

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

(1)

Replace section 62(1)(b) with:

(b)

if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person driving contains evidence of use of a listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug.

(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, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person driving—

(a)

contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or

(b)

16 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)

After section 64(1A) insert:

(1AB)

It is a defence to proceedings for an offence against section 57A(3), 57B(3), or 57C(3) or (4) if the person’s oral fluid indicates use of a qualifying drug and—

(a)

the person—

(i)

has a current and valid prescription for the qualifying drug that was written for that person by a health practitioner; and

(ii)

has complied with the instructions (if any) from a health practitioner or from the manufacturer of the qualifying drug about driving, consuming alcohol or other prescription medicines, or both, while consuming the qualifying drug; or

(b)

the drug was administered by a health practitioner, and the person complied with the instructions (if any) given by the health practitioner.

(3)

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

(4)

In section 64(3A)(a), replace “or evidential breath test” with “, evidential breath test, or oral fluid test”.

(5)

After section 64(5), insert:

(6)

It is no defence to proceedings for an offence against this Act in respect of the proportion of a qualifying drug in a person’s blood—

(a)

that there was or may have been an error in the result of the first oral fluid test or second oral fluid test; or

(b)

that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require a second oral fluid test or a blood test.

17 Section 65AB amended (Qualifying offences)

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

Blood test fee

18 Section 67 amended (Blood test fee)

(1)

In section 67(1)(a)(i), replace “72(1)” with “72(1)(a), (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)(e), (f), (g), or (h); and

(ii)

is advised in accordance with section 71A(5)(c), 71D(2), or 72(1F) before undergoing the blood test; and

(iii)

commits an offence against section 57A(1) or (2), 57B(1) or (2), or 57C(1) or (2):

(3)

In section 67(1B)(a), replace “57A” with “57A(1), 57B(1), 57C(1)”.

(4)

In section 67(2), after “Act”, insert “(including prescribing different fees for different classes of persons)”.

Enforcement procedures

19 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 result (or failure to produce a result) of any such oral fluid test or tests.

20 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”.

21 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 a first oral fluid test whether or not the person has already undergone a breath screening test under section 68 or an evidential breath test under section 69 and regardless of the result (or failure to produce a result) of any such oral fluid test or tests; but

(b)

must not require a person to undergo a first oral fluid test if an enforcement officer has required the person to undergo a compulsory impairment test under section 71F(1).

(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 a place where it is likely that the person can undergo a first oral fluid test.

(4)

If it is not practicable for a person to undergo a first oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (3)(b), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a first oral fluid test.

(5)

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)(e); and

(b)

if the result of a blood test indicates the presence of alcohol, 1 or more qualifying drugs, or both alcohol and 1 or more qualifying drugs, the person may be issued with an infringement notice or charged with an offence, depending on—

(i)

the proportion of any alcohol in the person’s blood; and

(ii)

the blood concentration level and type of the qualifying drugs (if any) in the person’s blood; 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) or an infringement offence against section 57A(2), 57B(2), or 57C(2).

(6)

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.

(7)

An enforcement officer may arrest without warrant a person who contravenes subsection (6).

(8)

An enforcement officer may require a person who has been arrested under subsection (7) and taken to or detained at a place to undergo a first oral fluid test at that place.

(9)

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 a place where it is likely that the person can undergo a second oral fluid test.

(3)

If it is not practicable for a person to undergo a second oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (2)(b), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a second oral fluid test.

(4)

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.

(5)

An enforcement officer may arrest without warrant a person who contravenes subsection (4).

(6)

An enforcement officer may require a person who has been arrested under subsection (5) 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 person must remain at the place where the person underwent the test that failed to produce a result until after the result of the further oral fluid test is ascertained.

(3)

An enforcement officer may arrest without warrant a person who contravenes subsection (2).

(4)

An enforcement officer may require a person who has been arrested under subsection (3) and taken to or detained at a place to undergo a further oral fluid test at that place.

(5)

A positive result of a further oral fluid test required under subsection (1) must,—

(a)

if required following a first oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the first oral fluid test; or

(b)

if required following a second oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the second oral fluid test.

(6)

A person may be required to undergo only 1 further oral fluid test under subsection (1).

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) or an infringement offence against section 57A(2), 57B(2), or 57C(2).

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 a first oral fluid test and a second oral fluid test 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 the person is required to do so by an enforcement officer under section 71F.

(2)

If it is not practicable for a person to undergo a blood test at a place to which the person has accompanied an enforcement officer under subsection (1), an enforcement officer may require the person to accompany the officer to any other place where it is likely that the person can undergo a blood test.

(3)

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.

(4)

An enforcement officer may arrest without warrant a person who contravenes subsection (3).

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)

(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 addition to any of the following:

(a)

any breath screening test, regardless of the result of the test (or a failure of the test to produce a result):

(b)

any evidential breath test, regardless of the result of the test (or a failure of the test to produce a result):

(c)

a first oral fluid test that—

(i)

does not produce a positive result; or

(ii)

produces a positive result that indicates the use of more than 1 qualifying drug:

(d)

a second oral fluid test that does not produce a positive result.

(6)

An enforcement officer must not exercise the powers in subsection (1) and (2) in addition to either of the following:

(a)

a first oral fluid test that produces a positive result that indicates the use of only 1 qualifying drug:

(b)

a second oral fluid test that produces a positive result.

71G Approval of oral fluid tests and oral fluid testing devices

(1)

The Minister of Police may, by notice, 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 1 or more specified qualifying drugs:

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

(a)

consult 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 the presence of a qualifying drug at a level that indicates recent use of a specified qualifying drug.

(3)

In determining for the purposes of subsection (2)(c) whether a device will return a positive result only if the device detects the presence of a qualifying drug at a level that indicates recent use of a specified qualifying drug, the Minister must have regard to any relevant New Zealand Standards or joint Australian/New Zealand Standards.

(4)

A notice made under subsection (1) for the purposes of approving a kind of device or a test—

(a)

must specify, for each specified qualifying drug, the concentration level of the qualifying drug in the person’s oral fluid at or above which the result of the test will appear positive for that qualifying drug; and

(b)

may—

(i)

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:

(ii)

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.

(6)

In this section, specified qualifying drug means a qualifying drug specified in a notice made under subsection (1).

(7)

A notice made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Legislation Act 2019 requirements for secondary legislation made under this section
Publication	The maker must publish it in accordance with the Legislation (Publication) Regulations 2021	LA19 s 74(1)(aa)
Presentation	The Minister must present it to the House of Representatives	LA19 s 114
Disallowance	It may be disallowed by the House of Representatives	LA19 ss 115, 116
This note is not part of the Act.

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)(e) with:

(e)

the person fails or refuses to undergo without delay an oral fluid test after having been required to do so by an enforcement officer under any of sections 71A to 71C; or

(f)

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

(g)

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 (2); or

(h)

the person fails to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person is required to do so by an enforcement officer under section 71F.

(2)

In section 72(1A) and (1B), replace “Subsection (1)(e)” with “Subsection (1)(h)”.

(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), (g), or (h) must advise the person, without delay, that the person may be liable to pay a blood test fee and associated medical costs if the result of the blood test establishes that the person has committed an offence against section 57A(1), 57B(1), or 57C(1) or an infringement offence against section 57A(2), 57B(2), or 57C(2).

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 evidence of use of any 1 or more qualifying drugs in a blood specimen taken under section 72 or 73 may be used as evidence in a prosecution for any offence under this Act (see also sections 77(2) and 77A(1), which specify presumptions for the purposes of this Act relating to drug testing and alcohol testing).

(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 result of an 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 the first oral fluid test and second oral fluid test undergone by the person 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 person will be presumed to have committed an infringement offence against this Act if the person does not request a blood test within 10 minutes; or

(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)

(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,—

(i)

if a certificate certified that there is evidence of use of a listed qualifying drug, a blood concentration level equal to or less than the tolerance level for the drug; or

(ii)

if a certificate certified that there is evidence of use of an unlisted qualifying drug, no presence 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 results of 2 oral fluid tests are 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 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 blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or

(D)

to have an unlisted qualifying drug in the person’s blood after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F:

Impoundment of vehicles

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

Replace section 96(1)(d) with:

(d)

the person, if they had previously been convicted of 2 or more offences against any of sections 56(1) and (2), 57, 57AA, 57A(1), 57B(1), 57C(1), 58(1), 60(1), and 61(1) and (2) within the last 4 years,—

(i)

had a breath alcohol concentration exceeding 400 micrograms of alcohol per litre of breath; or

(ii)

had a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood; or

(iii)

had a blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or

(iv)

had any presence of an unlisted qualifying drug in their blood after failing to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F; or

(v)

failed or refused to undergo a blood test, after having been required or requested to do so under section 72 or 73.

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):

31 Section 103 amended (Persons who may apply to court for limited licence)

In section 103(2)(d)(ii), replace “57A” with “57A, 57B, 57C”.

32 Section 104 amended (Issue of limited licence to be delayed or prohibited in certain cases)

In section 104(1)(c), replace “57A” with “57A, 57B, 57C”.

Powers of entry and immobilisation

33 Section 119 amended (Powers of entry)

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

34 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”.

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

(1)

In section 121(1)(a)(i)(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 (e); or

Regulations

36 Section 167 amended (Regulations)

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

(aaa)

is 75 demerit points in the case of an offence against section 57B(2) or (3) or 57C(2), (3), or (4):

37 New sections 167AAA and 167AAB inserted

After section 167, insert:

167AAA Setting or amending high-risk and tolerance blood concentration levels for drug-driving offences

(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 a qualifying drug to Part 1 of Schedule 5 and specifying a high-risk level for the drug:

(b)

adding the name of a qualifying drug to Part 2 of Schedule 5 and specifying a tolerance level for the drug:

(c)

amending any high-risk level or tolerance level specified in Schedule 5 for a qualifying drug.

(2)

A high-risk level for a qualifying drug—

(a)

may be specified only if a tolerance level is specified for the drug; and

(b)

may be the same as the tolerance level for the drug.

(3)

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 167AAB on—

(i)

the specific effects of each drug referred to in the proposed order; and

(ii)

the appropriate high-risk level for each drug referred to in any proposed amendment to Part 1 of Schedule 5; and

(iii)

the appropriate tolerance level for each drug referred to in any proposed amendment to Part 2 of Schedule 5; and

(b)

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

(c)

give interested persons a reasonable time, which must be specified in the notice published under paragraph (b), to make submissions on the proposed order; and

(d)

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

(4)

The Minister may seek and consider independent advice from independent experts appointed under section 167AAB on any other matter the Minister considers appropriate before making a recommendation under subsection (1).

(5)

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.

(6)

An Order in Council made under this section—

(a)

is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements); and

(b)

if made under subsection (1), must be confirmed by an Act (see subpart 3 of Part 5 of the Legislation Act 2019).

Legislation Act 2019 requirements for secondary legislation made under this section
Publication	PCO must publish it on the legislation website and notify it in the Gazette	LA19 s 69(1)(c)
Presentation	The Minister must present it to the House of Representatives	LA19 s 114
Disallowance	It may be disallowed by the House of Representatives	LA19 ss 115, 116
This note is not part of the Act.

167AAB Ministers may appoint independent experts for purposes of section 167AAA

(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 setting and amending high-risk blood concentration levels and tolerance blood concentration levels for qualifying drugs under section 167AAA.

(2)

The independent experts appointed under subsection (1) must together 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 appropriate high-risk levels and tolerance levels for qualifying drugs in accordance with subsections (4) and (5).

(4)

In advising the Ministers on the appropriate high-risk level for a qualifying drug, the independent experts must take into account—

(a)

the specific effects of the qualifying drug and the medical and scientific evaluations of the drug carried out under subsection (3)(a); and

(b)

that the high-risk level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge, is likely to impair a person’s driving; and

(c)

the high-risk levels specified, at the time of advising the Ministers, in Part 1 of Schedule 5 for other listed qualifying drugs and, in particular (where possible), for drugs with similar effects.

(5)

In advising the Ministers on the appropriate tolerance level for a qualifying drug, the independent experts must take into account—

(a)

the specific effects of the qualifying drug and the medical and scientific evaluations of the drug carried out under subsection (3)(a); and

(b)

that the tolerance level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge,—

(i)

is likely to indicate that a person has recently used the drug; and

(ii)

is unlikely to be exceeded if the person has such a low level of the drug in their blood (whether due to passive exposure or otherwise) that their driving is unlikely to be impaired; and

(c)

for a qualifying drug that is a prescription medicine, the maximum dose of the prescription medicine that is generally prescribed; and

(d)

the tolerance levels specified, at the time of advising the Ministers, in Part 2 of Schedule 5 for other listed qualifying drugs and, in particular (where possible), for drugs with similar effects.

Analysing oral fluid samples for statistical or research purposes

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

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

39 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

40 Schedule 1 amended

In Schedule 1, after Part 5, insert the Part 6 set out in Schedule 1 of this Act.

Blood concentration levels for offences relating to drug driving

41 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 2019

42 Amendment to Legislation Act 2019

(1)

This section amends the Legislation Act 2019.

(2)

In Schedule 4, insert in its appropriate alphanumeric order:

Land Transport Act 1998

167AAA(1)

Amendment to Sentencing Act 2002

43 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

44 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 use of 1 qualifying drug	500	—	200	—
57A(3)	Driving or attempting to drive with 2 oral fluid test results indicating use of 1 qualifying drug	500	—	200	—
57B(2)	Driving or attempting to drive with blood containing evidence of use of 2 or more qualifying drugs	1,000	—	400	—
57B(3)	Driving or attempting to drive with oral fluid test results indicating use of 2 or more qualifying drugs	1,000	—	400	—
57C(2)	Driving or attempting to drive with blood containing alcohol and evidence of use of 1 qualifying drug	1,000	—	400	—
57C(3)	Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and with oral fluid indicating use of 1 qualifying drug	1,000	—	400	—
57C(4)	Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of 1 qualifying drug	1,000	—	400	—

(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 use of 1 qualifying drug	50
57A(3)	Driving or attempting to drive with 2 oral fluid test results indicating use of 1 qualifying drug	50
57B(2)	Driving or attempting to drive with blood containing evidence of use of 2 or more qualifying drugs	75
57B(3)	Driving or attempting to drive with oral fluid test results indicating use of 2 or more qualifying drugs	75
57C(2)	Driving or attempting to drive with blood containing alcohol and evidence of use of 1 qualifying drug	75
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 1 qualifying drug	75
57C(4)	Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of 1 qualifying drug	75

Schedule 1 New Part 6 inserted into Schedule 1

s 40

Part 6 Provision relating to Land Transport (Drug Driving) Amendment Act 2022

24 Review of amendments made by Land Transport (Drug Driving) Amendment Act 2022

(1)

The Minister must appoint a reviewer to undertake a review of the amendments made by the Land Transport (Drug Driving) Amendment Act 2022—

(a)

no earlier than 3 years after the commencement of that Act; and

(b)

no later than 4 years after the commencement of that Act.

(2)

The Minister must ensure that the reviewer appointed under subclause (1) is independent of the—

(a)

New Zealand Police; and

(b)

Ministry of Transport.

(3)

The review undertaken under subclause (1) must, subject to clause 25, consider—

(a)

the impact of the amendments; and

(b)

the reliability of oral fluid tests and blood tests in assessing a person’s impairment; and

(c)

whether appropriate thresholds and impairment levels have been set for different drugs; and

(d)

whether the amendments have been appropriately implemented by the New Zealand Police and other relevant entities; and

(e)

whether the amendments have had a disproportionate impact on Māori and Pasifika people; and

(f)

the extent to which, if it can be assessed, the number of people driving while impaired by drugs has changed since the amendments came into force; and

(g)

whether—

(i)

further amendments should be considered:

(ii)

any of the amendments should be repealed; and

(h)

any other matter that the Minister requests the reviewer examine; and

(i)

any other matter that the reviewer considers relevant.

(4)

The reviewer must provide the review to the Minister within 12 months of the date of the reviewer’s appointment under subclause (1).

(5)

The Minister must, within 60 working days of the day the review is provided to the Minister under subclause (4), present to the House of Representatives—

(a)

the review; and

(b)

a response to the review.

25 Order for review to not consider matters

(1)

The Governor-General may, by Order in Council, on the advice of the Minister, require that the review undertaken under clause 24 not consider 1 or more of the matters identified in clause 24(3).

(2)

Before advising the Governor-General to make an Order in Council under subclause (1), the Minister must present a paper to the House of Representatives explaining the reasons why, in the Minister’s view, the review should not consider the matters identified in the Order in Council.

(3)

An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Legislation Act 2019 requirements for secondary legislation made under this section
Publication	PCO must publish it on the legislation website and notify it in the Gazette	LA19 s 69(1)(c)
Presentation	The Minister must present it to the House of Representatives	LA19 s 114
Disallowance	It may be disallowed by the House of Representatives	LA19 ss 115, 116
This note is not part of the Act.

Schedule 2 New Schedule 5 inserted

s 41

Schedule 5 Blood concentration levels for offences related to drug driving

ss 2, 167AAA, 167AAB

Part 1 High-risk blood concentration levels for drug-driving offences

Qualifying drug		High-risk level (ng/ml)
Alprazolam		50
Amphetamine		100
Buprenorphine		1
Clonazepam		50
Cocaine		20
Codeine		200
Diazepam		200
Dihydrocodeine		200
Fentanyl		0.5
GHB		50,000
Ketamine		50
Lorazepam		30
MDMA		50
Methadone		200
Methamphetamine		50
Midazolam		30
Morphine		20
Nitrazepam		50
Oxazepam		800
Oxycodone		50
Temazepam		800
THC (cannabis)		3
Tramadol		250
Triazolam		4
Zopiclone		50

Part 2 Tolerance blood concentration levels for drug-driving offences

Qualifying drug		Tolerance level (ng/ml)
Alprazolam		20
Amphetamine		20
Buprenorphine		1
Clonazepam		20
Cocaine		5
Codeine		50
Diazepam		100
Dihydrocodeine		50
Fentanyl		0.5
GHB		10,000
Ketamine		10
Lorazepam		10
MDMA		10
Methadone		50
Methamphetamine		10
Midazolam		10
Morphine		10
Nitrazepam		20
Oxazepam		200
Oxycodone		20
Temazepam		200
THC (cannabis)		1
Tramadol		100
Triazolam		4
Zopiclone		20

Legislative history

30 July 2020		Introduction (Bill 317–1)
4 August 2020		First reading and referral to Transport and Infrastructure Committee
17 June 2021		Reported from Transport and Infrastructure Committee (Bill 317–2)
11 August 2021		Second reading
16 February 2022		Committee of the whole House (Bill 317–3)
8 March 2022		Third reading
11 March 2022		Royal assent

This Act is administered by the Ministry of Transport.

List of access keys

Land Transport (Drug Driving) Amendment Act 2022

Land Transport (Drug Driving) Amendment Act 2022

Contents

1 Title

2 Commencement

Part 1 Amendments to Land Transport Act 1998

3 Amendments to Land Transport Act 1998

4 Section 2 amended (Interpretation)

(a)

(b)

(a)

(i)

(ii)

(iii)

(b)

(a)

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)

11A Persons not to drive or attempt to drive while blood contains evidence of, or oral fluid indicates, use of qualifying drug

(a)

(b)

(a)

(b)

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

Drug-related offences and penalties

7 Part 5 heading amended

8 Cross-heading above section 34 amended

9 Section 56 amended (Contravention of specified breath or blood-alcohol limit)

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

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

Offence: driving while blood contains evidence of use of 1 qualifying drug

(a)

(b)

Infringement offence: driving while blood contains evidence of use of 1 qualifying drug

(a)

(b)

Infringement offence: driving while oral fluid indicates use of qualifying drug

(a)

(b)

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

Offence: driving while blood contains evidence of use of 2 or more qualifying drugs

(a)

(b)

Infringement offence: driving while blood contains evidence of use of 2 or more qualifying drugs

(a)

(b)

(c)

(i)

(ii)

Infringement offence: driving while oral fluid indicates use of 2 or more qualifying drugs

(a)

(b)

57C Driving while blood or breath contains alcohol and blood contains evidence of, or oral fluid indicates, use of 1 qualifying drug

Offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug

(a)

(i)

(ii)

(iii)

(b)

(c)

Infringement offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug

(a)

(i)

(ii)

(b)

(i)

(ii)

Infringement offence: driving while blood contains alcohol and oral fluid indicates use of 1 qualifying drug

(a)

(i)

(ii)

(b)

(c)

Infringement offence: driving while breath contains alcohol and oral fluid indicates use of 1 qualifying drug

(a)

(i)

(ii)

(b)

(c)