Can Drink Driving Offences Be Defended in New Zealand?

Yes, drink driving offences can be defended in New Zealand. However, whether you have a realistic defence depends on the circumstances of your case, the evidence available and the specific offence you have been charged with.

If you have been charged with drink driving in Auckland, you may be worried about losing your licence, receiving a criminal conviction or facing significant penalties. You might also be wondering whether there is anything a drink driving lawyer can do if you failed a breath test.

The answer is that failing a breath test does not automatically mean there are no legal issues worth examining. A lawyer can assess the evidence, review the circumstances of the police procedure and determine whether there are legitimate grounds to challenge the charge.

That does not mean every drink driving charge can be successfully defended. New Zealand law places specific limits on the arguments that can be raised, and some cases have much stronger defences than others.

As a drink driving lawyer, my job is to identify those issues, explain your options and help you decide on the most appropriate way forward.

In this article, I explain how drink driving offences can be defended, what a lawyer will look for and what options you have if you have been charged in Auckland or elsewhere in New Zealand.

1. What does it mean to defend a drink driving charge?

Defending a drink driving charge means challenging the prosecution's case rather than simply accepting that you are guilty.

Under the Land Transport Act 1998, different offences apply depending on the circumstances, including the driver's alcohol level and whether the alleged offence involves refusing a required test. The legal requirements vary depending on the charge.

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When I assess a drink driving case, I look at questions such as:

• What exactly have you been charged with?

• What evidence does the prosecution have?

• Were the relevant legal procedures followed?

• Is there a genuine legal defence available?

• Are there inconsistencies or other issues that could affect the prosecution's case?

• If the charge cannot realistically be defended, are there other options that may reduce the consequences?

If there are proper grounds to challenge the charge, I can advise you about entering a not-guilty plea and taking the matter through the court process.

If the evidence is strong and no viable defence is available, I will explain that as well. In those circumstances, it may be more appropriate to consider the consequences of a guilty plea and whether any other legal options are available.

The important thing is to understand your position before making a decision.

2. What are the possible defences to a drink driving charge?

There is no single defence that applies to every drink driving case. The right approach depends on the charge and the available evidence.

Here are some of the issues a drink driving lawyer may investigate.

Challenging the evidence and testing procedures

Police must follow the legal requirements that apply to the particular offence and testing process.

I can review the available records to identify whether there are any genuine issues with how the evidence was obtained or whether the relevant legal requirements were met.

This may involve examining the circumstances of the breath test, the evidential breath test or blood test, the relevant documentation and the procedure followed by police.

However, there is an important distinction between identifying a possible procedural issue and establishing a valid defence.

For standard excess-alcohol charges, New Zealand legislation places restrictions on challenging the accuracy of an evidential breath test simply by alleging that the machine may have made an error. A suspected error does not automatically invalidate a result or provide a defence.

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The question is whether there is a legally relevant issue that can properly be raised in your particular case.

Examining blood test evidence

If your case involved a blood test, I can assess the available blood test documentation and the circumstances in which the sample was obtained.

Where appropriate, this may include investigating whether the sample was collected and handled in accordance with the applicable requirements, reviewing the test certificate and considering whether independent analysis may be available.

New Zealand Transport Agency guidance explains that a person may request independent analysis of a blood sample, making it important to obtain legal advice promptly if you want to explore this option.

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Whether further analysis is appropriate will depend on the circumstances, the timing and the relevant legal requirements.

Challenging whether the legal requirements of the offence are established

The prosecution must establish the elements of the particular offence charged.

A lawyer can examine the evidence to determine whether those requirements are met and whether there is a proper basis to dispute an essential part of the case.

For example, this may involve examining the evidence about who was driving, whether the relevant conduct occurred or whether the evidence establishes the alleged offence.

These issues are highly fact-specific. A disagreement about what happened is not enough on its own; there must be a sound evidential or legal basis for challenging the prosecution's case.

Reviewing the circumstances of the police stop

I can also examine the circumstances surrounding the initial stop and subsequent testing.

This includes reviewing what happened, what police recorded and whether any relevant legal requirements were followed.

If there is a genuine issue with the way evidence was obtained, I can advise whether it has any legal significance and whether it provides grounds for an application or defence.

It is important not to assume that a problem with the initial stop automatically invalidates a later test result. The legal consequences depend on the specific circumstances and the applicable rules.

Considering whether a legal defence applies to your particular charge

Some drink driving offences have specific statutory requirements or exceptions.

For example, the rules governing a standard excess-alcohol charge differ from those applying to a refusal to provide a required blood specimen or certain drug-driving offences.

This is why it is important to identify the exact charge before deciding which arguments are available.

A defence that may apply to one type of offence may not apply to another.

3. Can you defend a drink driving charge if you failed a breath test?

Yes, it may still be possible, but it depends on the circumstances.

A failed breath test does not mean every aspect of the case is beyond examination. However, the legal significance of the result depends on which test was administered and which offence you are facing.

New Zealand police use different testing stages, including passive breath testing, breath screening and evidential breath testing. An evidential breath test can be used as evidence of a driver's breath-alcohol concentration.

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If you have failed an evidential breath test, I would want to establish exactly what happened, review the relevant records and assess whether any legitimate legal issues arise.

I would not advise challenging a charge simply because you believe the machine could have been inaccurate. For a standard excess-alcohol offence, legislation restricts that type of argument.

If the evidence is reliable and the legal requirements are satisfied, defending the charge may not be a realistic option. In that situation, I can explain the potential consequences of a guilty plea and whether other options should be considered.

The aim is to identify a defence that has a proper legal basis, not to pursue an argument that is unlikely to succeed.

4. What if you were only slightly over the legal alcohol limit?

Your alcohol level can make a significant difference to how your case is dealt with.

For drivers aged 20 and over, the general infringement thresholds are over 250 micrograms of alcohol per litre of breath up to and including 400 micrograms, or over 50 milligrams per 100 millilitres of blood up to and including 80 milligrams. Higher readings can fall within criminal excess-alcohol offences. Different limits apply to drivers under 20 and certain other licence holders.

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If you were only slightly over the relevant limit, I can explain which offence applies and what the likely consequences are.

However, being only slightly over the limit is not, by itself, a defence. Nor does it automatically mean the charge will be dismissed.

The distinction between an infringement and a criminal charge is important. If you are facing a criminal charge, you should obtain advice about the evidence, your plea and the potential consequences before deciding how to proceed.

5. What if you refused a breath or blood test?

Refusing a test can create a different legal situation from failing one.

Under New Zealand's testing procedures, refusing an evidential breath test can lead to a requirement to undergo a blood test. Refusing a required blood specimen can itself result in a separate offence.

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If you have been charged with refusing a test, I would first identify the exact offence and examine the circumstances surrounding the alleged refusal.

That includes considering what you were asked to do, what happened during the interaction and the requirements that applied at the time.

It is important not to assume that refusing a breath test means the police have no case, or that you can automatically defend a refusal charge by saying you were confused or did not understand the request.

Whether a defence exists depends on the relevant law and the evidence.

If you have been charged with refusing a test, seek legal advice promptly rather than assuming the same rules apply as they would to an ordinary excess-alcohol charge.

6. What if there is no realistic defence to the charge?

Defending the charge is not always the best course of action.

After reviewing the evidence, I may advise that the prosecution's case is strong and that there are no reasonable grounds to contest it.

That does not mean there is nothing I can do to help.

Depending on the circumstances, I can assess whether a discharge without conviction may be available, explain the likely sentencing outcome and consider whether any licensing options are relevant.

Applying for a discharge without conviction

A discharge without conviction is a separate legal outcome from successfully defending a charge.

In appropriate cases, the court may discharge a person without recording a conviction if the legal test is satisfied. The court must consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

I can assess your personal circumstances, identify the consequences that may be relevant and advise whether there is a proper basis for making an application.

The court does not grant a discharge simply because you need your licence or do not want a criminal record. The application must meet the legal test, and the outcome cannot be guaranteed.

Preparing for sentencing

If you plead guilty or are found guilty, I can help prepare your case for sentencing.

This may involve explaining relevant personal circumstances, presenting evidence of rehabilitation and making submissions about the appropriate sentence.

The purpose is to ensure the court has the relevant information when deciding the outcome. It does not guarantee that a particular penalty will be imposed.

Exploring licensing options

If you are concerned about losing your ability to drive, I can also explain the consequences of disqualification and assess whether a lawful licensing option may be available.

Depending on the case, this may involve considering an alcohol interlock licence or whether a limited licence is legally available.

The options are subject to eligibility requirements and are not available in every situation.

7. What happens if you want to defend a drink driving charge in Auckland?

If you have been formally charged, the process generally involves the following steps.

Step 1: Review the charge

I will identify the offence you have been charged with, check your court paperwork and explain the immediate requirements, including your court date.

Step 2: Examine the evidence

I will assess the available prosecution evidence, the testing records and any relevant circumstances surrounding the alleged offence. This helps establish whether there are legitimate grounds to defend the charge.

Step 3: Decide on the appropriate approach

If there are reasonable grounds to challenge the charge, I can advise you about pleading not guilty and defending the case. If not, I can explain the alternatives and potential consequences.

Step 4: Resolve the case

Depending on your plea and the circumstances, the case may be resolved through the appropriate court process or proceed to a defended hearing or trial. I can represent you and explain the outcome and any further steps required.

You should seek legal advice as early as possible, particularly if you want to investigate blood test evidence or have an upcoming court date. Do not ignore court paperwork or assume your obligations have changed because you have contacted a lawyer.

8. Is it worth hiring a drink driving lawyer to defend your charge?

If you are facing a drink driving charge in Auckland, getting advice can help you understand whether a defence exists and whether contesting the charge is a sensible option.

A drink driving lawyer can assess the prosecution's evidence, identify legally relevant issues, explain the risks of a defended hearing and advise you about other possible outcomes.

This is particularly important if you are worried about a criminal conviction, rely on your licence for work or have previous drink driving offences.

However, a lawyer should be honest about the strength of your case. If the evidence is strong and there is no viable defence, it is important to understand that before incurring the cost and uncertainty of a defended hearing.

The right approach is based on the facts and the law, not on promises that a charge can be dismissed.

Speak to an Auckland drink driving lawyer

If you have been charged with drink driving in Auckland or elsewhere in New Zealand, I can help you understand your legal position and the options available.

The first step is to review the details of your charge and the evidence. From there, we can assess whether there are grounds to defend the offence or whether another approach is more appropriate.

You do not have to assume that you have no options simply because you have been charged. Equally, you should not assume that a defence exists until the circumstances have been properly assessed.

Getting clear legal advice early can help you make an informed decision about what to do next.