MEDIA RELEASE – For immediate use, 14 March 2013

Breath testing amendment bill breaches Bill of Rights

Motorists may be subject to a draconian bill which if enacted, could see the result of an evidential breath test used to prosecute them if a blood test cannot be taken for reasons beyond their control, says the New Zealand Law Society.

The Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill proposes to amend section 77 of the Land Transport Act so that when a person fails an evidential breath test, but elects to take a blood test, the result of the breath test will be admissible against them in a prosecution if a blood specimen cannot be taken “for any reason”.

Jonathan Krebs, convenor of the Law Society’s Criminal Law Committee, says the bill is unnecessary, breaches the New Zealand Bill of Rights Act, and should not proceed.

Mr Krebs told Parliament’s Transport and Industrial Relations Committee today that an evidential breath test cannot always be relied on as people and machines are not infallible.

In some circumstances a breath test result may not be an accurate indication of a person’s blood alcohol level, and only a blood test will provide an accurate result. Relying solely on breath test results is inconsistent with the right to be presumed innocent until proven guilty, under the Bill of Rights Act.

“If the bill becomes law there will be no safeguard for those motorists from whom a blood test cannot be taken, not through their own fault, but for unrelated reasons.

“These motorists will have no ability to challenge the result or accuracy of the evidential breath test.

“The law change proposed could only be reasonable if the presumption that the results of breath tests are accurate was a rebuttal presumption, rather than a conclusive one,” Mr Krebs says.

Mr Krebs says a blood test is a much more accurate and accepted method of analysis as it can challenge human errors in collecting evidence, and allows an independent scientist to test the second part of the blood specimen.

He says sections in the Land Transport Act 1998 already make a breath test admissible, where a blood sample is unable to be taken because a motorist has obstructed the process.

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