Drink Drive

Technically called "driving with excess breath/blood alcohol" or "EBA" for short.


Penalties - what am I up for?


First or Second Offence
  • A conviction and permanent record thereof
  • Usually at least six months disqualification
  • Up to three months in jail - don't worry - in most parts of the country jail would be a highly unusual outcome on a first or second drink drive offence
  • A fine of up to $4,500 - but with a first offence usually figure on a dollar per point. For example you blew a reading of 500 - expect a fine of around $500
  • Court costs - usually $130
  • Possibly community work


Third (or more) Offence - "three strikes"
  • A conviction and permanent record thereof
  • Usually at least 12 months disqualification
  • Up to two years in Jail
  • A fine of up to $6,000
  • Court costs - the least of your problems
  • Possibly community work - if you're lucky


Third (or more) Offence
Warning:


You may well be in
serious danger of
going to
Jail!


Do not go to court
and plead guilty
at your first
appearance.


You need serious help!


Note:
  • Different penalties apply to people aged under 20 years old.
  • The date(s) of previous convictions can make a big difference and you may be facing extra penalties still. For example if you've had a particularly high reading or a refusal within the last five years or you're charged with either of those offences this time (having had an ordinary EBA less than five years ago) then you're facing "indefinite disqualification". Too confusing? Call us.


Car confiscation

If you've got a previous "qualifying offence" this may be an issue. And we don't mean car impoundment for 28 days. Car confiscation means that your car is taken away and sold at auction usually at a fire-sale price. We can usually protect you against car confiscation (and it's not in the way that many people think - the court can actually claw back the car from the person you transfer it to).


Immediate licence suspension

Immediate licence suspension can be inflicted in some circumstances. For example if you blew over twice the legal limit (i.e. more than 800) then the officer has the power to suspend your licence immediately for 28 days. "But I haven't even been convicted yet" you rightly protest. We agree - this piece of the law is extremely unfair.


Frequently Asked Questions


Can I appeal the 28-day suspension?

Yes, but the grounds of appeal are extremely limited.


How do I get my licence back after the 28-day suspension is over?

Generally the authorities will mail it back to you - but they may need a reminder call that they should be posting it back.


The machine recorded a positive reading. Therefore I must be guilty - right?

Not at all. Drink drive law is mainly about whether the police went through the correct procedure in handling you, the documentation as to your case and the samples taken from you. Every person who successfully defends a charge of EBA starts with a positive reading.


But the officer looked like he knew what he was doing - didn't he?

Perhaps - perhaps not. But either way we suggest that he's probably no expert on the technical points of the law which include many things that defy common sense and that you (and often he) wouldn't even guess at.


OK hotshot lawyer - what sort of defences do you use?

Drink drive law as indicated above, is a highly complex area of law full of "technicalities". Because of this complex and technical nature, it follows that there are many opportunities for the police to make mistakes and one of those mistakes may well get you off the hook.


The police have misspelled my name, my street name etc on the ticket. Can I get off on that basis?

Typically not. That sort of minor error is generally harmless to the police case. Don't worry - you may well have a defence on another basis.


Should I refuse to take all the tests?

No - absolutely not! You will generally just make the situation worse - sometimes much worse - see penalties above.


Will it all be over on the day printed on my summons?

Usually not - that's if you retain us. And that's a good thing - delay pretty much always advantages the defendant - that's you. We need time to get all the necessary documents concerning your case out of the police and to properly prepare your case. If you're on a third-strike offence it's a moral certainty that we won't be wrapping up your case on the day of your first appearance.


I got home, had a drink and then the police turned up. They tested me and now I've been charged. They can't have power to do this - surely?

Incredible but true. The law contains a "conclusive presumption". The reading on the machine is presumed to be your reading at the time you were driving. Don't fret however. These cases can very often be successfully resolved.


The officer stepped onto my land and I told him to leave before he'd requested anything of me. Can I get off the charge?

Very possibly. He might be on your land solely on the basis of an "implied licence" to be there. That's what we have when we walk up to someone's front door. That licence can be revoked by the occupier of the land (i.e. you) at any time. The precedent court cases on this topic show that the favourite expression used by occupiers withdrawing an implied licence tends to be something like "F___ off Cop!" Needless to say, a fair amount of acrimony is often reported on both sides in these cases. We advise politeness and leave you to design your own form of words, for example "please leave immediately officer".


Can I represent myself?

Yes, you can be convicted, sentenced and even jailed for free, but if you would like a without-obligation assessment of your situation then call us today.


The Web Site of
Patrick Winkler
Barrister
Active Legal Solutions
Auckland-wide . . . and beyond

Phone

(09) 575 5111

or

(027) 226 9992   24 Hrs