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What happens if you refuse a police breathalyzer test?

Key Takeaway

Refusing a police breathalyzer test in New Zealand carries legal consequences. A roadside refusal can lead to a demand for further testing and penalties, while refusing an evidential breath or blood test can result in significant fines, driving disqualification, and even imprisonment, similar to a drink-driving conviction.

Refusing a Police Breathalyzer Test in New Zealand

In New Zealand, drivers have specific obligations regarding police requests for breath alcohol testing. Refusing to comply with these requests can lead to significant legal penalties, including fines, driving disqualification, and in some cases, imprisonment.

Police Authority to Request Breath Tests

An enforcement officer (a police officer) has the authority to stop a driver and require them to undergo a breath alcohol test if they have good cause to suspect the person has recently consumed alcohol or drugs, or if the person has been involved in an accident [Source: Land Transport Act 1998, s 60(1)].

Types of Breath Tests

There are generally two stages of breath testing:

1. Roadside Breath Screening Test

This is an initial, preliminary test typically conducted at the roadside using a portable device. Its purpose is to indicate the presence of alcohol [Source: Land Transport Act 1998, s 60].

2. Evidential Breath Test

If a person fails or refuses a roadside breath screening test, or if the enforcement officer believes the person has consumed alcohol, they may be required to accompany the officer to undergo an evidential breath test [Source: Land Transport Act 1998, s 69(1)]. An evidential breath test is a more accurate test performed using a certified evidential breath testing device, often at a police station or in a police vehicle, and the result can be used as evidence in court [Source: Land Transport Act 1998, s 62].

Consequences of Refusing a Breath Test

Refusal to undergo a required breath test without a reasonable excuse (such as a genuine medical inability to provide a sample) is an offence [Source: Land Transport Act 1998, s 68(1)]. Mere unwillingness is not considered a reasonable excuse.

Refusing a Roadside Breath Screening Test

If a person fails or refuses, without reasonable excuse, to undergo a roadside breath screening test, an enforcement officer may require that person to undergo an evidential breath test or provide a blood specimen [Source: Land Transport Act 1998, s 60(2)].

Refusing an Evidential Breath Test or Blood Specimen

If a person fails or refuses, without reasonable excuse, to undergo an evidential breath test, an enforcement officer may require that person to permit a blood specimen to be taken [Source: Land Transport Act 1998, s 69(1)]. Failing or refusing to permit a blood specimen to be taken without reasonable excuse is also an offence [Source: Land Transport Act 1998, s 70A(1)(b)].

Penalties for Refusal

The penalties for refusing a breath or blood test are severe and are generally comparable to those for driving with excess breath or blood alcohol. The specific penalties depend on the type of test refused and whether it is a first, second, or subsequent offence.

  • Refusing a breath screening test (without reasonable excuse):

    • A fine not exceeding $4,500 [Source: Land Transport Act 1998, s 77(1)(a)].
    • Disqualification from holding or obtaining a driver's licence for at least 6 months [Source: Land Transport Act 1998, s 77(1)(b), s 78A(1)(a)].

  • Refusing an evidential breath test or failing or refusing to permit a blood specimen to be taken (without reasonable excuse):

    • First or second offence: Imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500 [Source: Land Transport Act 1998, s 77(2)(a)].
    • Third or subsequent offence: Imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000 [Source: Land Transport Act 1998, s 77(2)(b)].
    • In all cases, disqualification from holding or obtaining a driver's licence for at least 6 months [Source: Land Transport Act 1998, s 77(2), s 78A(1)(a)].

Right to Consult a Lawyer

After a positive roadside breath screening test result or a refusal of a breath screening test, but before an evidential breath test or blood specimen is taken, a person generally has the right to consult a lawyer without delay, unless it is impracticable to do so [Source: Land Transport Act 1998, s 73A]. This right applies once the police proceed beyond the initial roadside screening test.

When to Seek Independent Legal Advice

Individuals facing charges related to refusing a breath or blood test, or any other driving offence, are encouraged to seek independent legal advice. A lawyer can provide guidance on specific circumstances, legal rights, and potential defences. Assistance may be available from the New Zealand Law Society for finding a lawyer, or from Community Law Centres for free legal help.

Key Resources