DETAILED SUBMISSIONS to THE TRANSPORT AND INDUSTRIAL RELATIONS COMMITTEE on THE LAND TRANSPORT AMENDMENT BILL 4 November 2016

Transcription

1 DETAILED SUBMISSIONS to THE TRANSPORT AND INDUSTRIAL RELATIONS COMMITTEE on THE LAND TRANSPORT AMENDMENT BILL 4 November 2016 Mr V.T. Winiata LLB. Barrister DOMAIN CHAMBERS Ground Floor, Generation House 36 Cameron Road P.O. Box TAURANGA Mobile or Office vivwiniata@xtra.co.nz or Fax

2 2 DETAILED SUBMISSIONS to THE TRANSPORT AND INDUSTRIAL RELATIONS COMMITTEE on THE LAND TRANSPORT AMENDMENT BILL 4 November 2016 Problems with the existing Alcohol Interlock law - section 65A of the Land Transport Act The section as it is now :-

3 2. Defects in drafting of the existing Alcohol Interlock section The section suffers from many drafting defects. The most obvious example is in the beginning of subsection (2), which provides :- (2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification, As apparent from the Moka appeal, it was not crystal clear from that wording whether the section created a mandatory or discretionary rule for Alcohol Interlocks upon the offending criteria being met. Subsection (3) adds to the confusion, where it provides :- (3) The imposition of a mandatory disqualification under this section is subject to section 81. and from which it could be argued that the beginning of subsection (2) created a mandatory rule. The alternative interpretation of subsection (3) is that it only refers to the initial 3 month disqualification in paragraph (2)(a). Section 81 permits a Court to avoid or reduce a mandatory disqualification for special reasons relating to the offence. However if that is all that subsection (3) is referring to, it is almost meaningless I have never seen a Court avoid the initial 3 month disqualification for special reasons relating to the offence (nor any occasion where that has been sought). It would have had far more significance if the Court had been given the power to avoid that initial 3 month disqualification for special reasons relating to the offence or the offender, or for subsection (3) to refer to the whole of an Alcohol Interlock Sentence (but if that had been the case, then s65a would have to have been interpreted as creating a mandatory rule for Alcohol Interlocks, which it did not). It appears from the new s65ac(3) that the Bill now proposes to adopt that last interpretation.

4 4 Furthermore, alcohol interlock licence disqualification is not defined anywhere in the Act, and that phrase is a contradiction in terms on its face. The phrase presumably intended to refer to the whole scheme of provisions which then follow those words, although the only disqualification part is the initial 3 months. Subparagraph (2)(b)(ii)(B) requires the Court to make an order requiring the defendant to apply for a zero alcohol licence after certain conditions have been met. This is in contrast with section 65B, which merely requires the Court to make an order authorising a defendant who has committed any 2 drink-drive offences within a 5 year period to obtain a zero alcohol licence following whatever other finite disqualification is being imposed on the latter/current offence. Section 65B (introduced contemporaneously with s65a in 2012) provides as follows :- zero alcohol licence is defined in section 2 of the Act as follows :-

5 5 However, this has no application and makes no sense in the context of an offender who comes within section 65A by virtue of a single offence of breath over 800 or blood over 160, with no other drink-drive offences in the past 5 years for no order can be made by the Court against such an offender under section 65B (as 2 offences within 5 years are required for that). This also highlights the huge difference and inconsistency between the present sections 65A and 65B in treatment of offenders for a first offence at a breath level of Under section 65B, such an offender is not subject to a 3 year zero alcohol licence (as that section requires 2 offences within 5 years). Under section 65A, such an offender would receive an initial 3 months disqualification, plus a minimum 12 months on an Alcohol Interlock, plus a 3 year zero alcohol licence thereafter. Paragraph 2(b)(v) provides :- Section 65 is the indefinite or lifetime disqualification rule I have referred to earlier. However paragraph 2(b)(v) does not make it clear whether the Court should end only a previously imposed indefinite disqualification, or also one which arises at the same time on sentencing for the current matter (as section 65 was not repealed, it continues to apply). In all such cases I have had, the Court either ended all indefinite disqualifications which had previously applied or would apply on the current sentencing, or simply taken the view that section 65A applied instead of section 65. However, section 65 is not expressed to be subject to section 65A there was no hierarchy specified as between these sections when section 65A was introduced. However, if an Alcohol Interlock is to be imposed or granted and any indefinite disqualification is to be ended, then it is hard to see any difference between whether that disqualification arises owing to past or present offending.

6 Subsection (4) provides :- 6 Section 65B(4) is in similar terms. An example which highlights the drafting error here is the case of someone subject to an indefinite disqualification, for whom the Court orders an Alcohol Interlock, but also ends the indefinite disqualification as required by (2)(b)(v). If the person then does not apply for the Alcohol Interlock Licence, they then have the benefit of having had their indefinite disqualification ended, and after the initial 3 month disqualification are apparently only unlicenced as opposed to disqualified (and hence cannot be charged with the more serious offence of driving whilst disqualified). In practise, some Judges have overcome this particular hole by tailoring the order to the effect that the indefinite disqualification ends only upon the person obtaining an Alcohol Interlock Licence. I appreciate that the present Bill seeks to address this particular defect, and also how offenders who are being contemporaneously sentenced for other matters requiring disqualification should be dealt with in connection with an order for an Alcohol Interlock (as that latter aspect was not addressed in section 65A at all). As to the latter though, the amendments proposed in that regard are in reality unnecessary. For example, I recently had a case where an offender was for sentence on both a refusal charge and for driving whilst suspended (which carries its own mandatory minimum 6 months disqualification for a first or second offence). The Court was being asked to impose/grant an Alcohol Interlock Licence, but of course a mandatory disqualification applied for the driving whilst suspended charge as well (it would have been a mandatory minimum 12 month disqualification for the driving whilst suspended had that been a 3 rd or subsequent offence of driving whilst suspended or disqualified).

7 7 The Court simply imposed a concurrent disqualification of 6 months on the driving whilst suspended along with the 3 month initial disqualification for the Alcohol Interlock, meaning that the offender could not obtain an Alcohol Interlock for 6 months, rather than the usual 3 months. That approach and result simply followed and was available to the Court on the existing law as it stands. In addition to the proposal to make Alcohol Interlocks mandatory in certain cases, the Bill also obviously seeks to address some of the drafting defects I have mentioned above. In my view though, some much broader thought and work is required to bring consistency and more intelligibility across all the relevant driving laws which often come into play together in a case involving a drink-drive charge. The basis of the Bill s proposal to introduce its new mandatory Alcohol Interlock scheme appears to rest on an implied criticism of the Courts not having imposed Alcohol Interlocks more frequently. In my view, the poor and over-complicated drafting of section 65A has been as much to blame as anything else for its lack of application in practise to date. 3. Defects in the existing Alcohol Interlock scheme 3.1. Over the years that I have been in practise, there has been a proliferation of piecemeal amendments/additions to our driving laws on diverse matters (ranging from, for example, stepped penalty regimes for drink-drive offending with different rules for drivers under 20 years - to vehicle impounding or confiscation and sale, to the special boy racer provisions, to the drug-driving provisions, to infringement/demerit offences for very low readings, to Zero Alcohol Licences and Alcohol Interlock Licences and new penalty regimes for breaches thereof, which have all evolved at different times) - many of which have introduced their own special and apparently quite arbitrary thresholds and rules for application and sentencing.

8 This manner of development of our driving laws has been to the detriment of overall consistency, and coherence, in many respects. In my view, both the existing Alcohol Interlock law and the replacement proposed by the Bill are just further examples of that Drink drivers come before the Courts with infinitely varied circumstances, both as to the offending and the offender. At one end of the spectrum, there is the first time drink driver (who can be either young or advanced in years), who is appearing on a bare drinkdrive offence, commonly detected on a random stop or at a checkpoint (ie. with no other contemporaneous driving offending or charge, eg. dangerous driving, failing to stop etc). Such first time offenders vary greatly with their breath or blood alcohol readings they can be anywhere from quite low to very high. Some of them will have problematic or harmful drinking patterns or behaviours in their lives, some will not. Some are of low or no income or means, many are not. Many will have made a one-off error of judgment (which judgment was no doubt affected by the alcohol), which they are unlikely to repeat. Some may have driven for only a very short uneventful distance, perhaps even only moving their car in their own driveway (which often is a road in terms of the definition of a road in the Act any place to which the public have access, whether as of right or not), or worse still only attempting to drive (eg. asleep at the wheel of a parked car with keys in the ignition) In my view, it cannot be presumed that all such drivers are or will become recidivist drink-drivers or necessarily pose any future risk to the safety of other road users. As I have mentioned earlier, for those who have especially high readings (ie. over 1000 breath or 200 blood), they have long been subject to the indefinite disqualification rule which applies to them should they commit any further drink-drive offence within the following 5 years.

9 At the other end of the spectrum, there are the recidivist drink-drivers, with many prior drink-drive convictions, and who in the worst cases have serious aggravating features present in the current offence (eg. dangerous driving with injury or death to others resulting). However, even recidivists come in a wide variety of forms. For some, their prior offending is recent (eg. within the previous 5 years), for others it is not. They don t always blow over 800, but the worst will commonly be up around 1000 or more on some or many of their breath readings In between these two extremes, there is an infinite variety of circumstances both as to the offending and the offender - offenders young and old, rich and poor, some with many priors, some with only a few, some of those recent, some of those not, some of those high, some of those not, some of those with histories for criminal offending (other than driving offending) and some without, some where the current offence is a serious example of a drink-drive offence in its own right, some where it is not, some where there is other contemporaneous offending (driving or otherwise) and some where there is not There are also those with records which disclose a high degree of non-compliance type offending (breaches of community work, supervision or release conditions, or driving whilst disqualified or suspended, or failing to stop for Police, for example). However, whether or not such offending history truly discloses a present inability or unwillingness to comply with Court Orders will be a matter of degree and thorough assessment of that history, as to its nature, extent and recency. I mention that on the basis that in my view it would be futile and pointless in some cases to order an Alcohol Interlock, for special reasons relating to the offender rather than to the offence I would also caution though that special care would need to be taken with regard to prior offending for driving whilst disqualified or suspended. Such offenders may be just the kind of person an Alcohol Interlock would be most effective for, subject to their ability to pay for it.

10 Typical sentencing progression for drink-drive offending simpliciter will begin with a fine for the first-time offender, and usually the mandatory minimum 6 month disqualification. The fine on a first offence will usually reflect the alcohol reading (eg. 500 breath = $500 fine plus $130 Court Costs plus $50 Offender Levy, or 100 blood = $500 fine plus $130 Court Costs plus $50 Offender Levy plus approx. $200 in blood test fees). If the alcohol reading is high eg 800+, the Court might increase the disqualification to 7 months Such an offender will be unable to apply for a Limited Licence if they have a conviction within the previous 5 years for any of the driving offences specified in s103(2)(d) of the Act. However, if their reading is 800 or higher they can obtain an Alcohol Interlock Licence, but if under 800 they cannot. Now how absurd is that? Furthermore, Alcohol Interlock Licences have none of the restrictions typical to Limited Licences. A Limited Licence may only be granted in the least terms necessary to alleviate extreme hardship to the offender/applicant or undue hardship to a person other than the offender/applicant, as the case may be (s105(1) of the Act) Such terms will usually specify (limit) the vehicles, purposes, places, days and times within which the applicant may drive. There are also many standard conditions which have evolved over many years, such as prohibiting the applicant from driving if another licenced driver is available, or taking detours or stops for unapproved purposes (eg. for a round of golf or to visit friends or licensed premises perhaps) and maintaining a logbook, for example. There are no such restrictions on an Alcohol Interlock Licence.

11 If only that first time drink-driver above had blown 800 or more, he really would have been much better off at least in the immediate or short term anyway (which is usually at the forefront of the offender s mind). I do not overlook the longer term of the restrictions on the offender who is subject to an Alcohol Interlock they will have to stay on the Alcohol Interlock for a minimum 12 months to be followed by a 3 year Zero Alcohol Licence (rather than serving out the much shorter 6 month disqualification before returning to full licence status) This however also exemplifies the gross disparity in long-term penalties which will arise as between a first-time offender who blows say 799, and one who blows 800. Under the present law, neither is subject to section 65B (which requires 2 drink drive offences within 5 years) so neither faces a 3 year zero alcohol licence following their initial disqualification of say 6 months. However under the proposal in this Bill, the latter would face a mandatory minimum 12 months on an Alcohol Interlock, plus a 3 year zero alcohol licence There will also be other drink-drivers who blow under 800, and who do not have any driving convictions within the past 5 years, but nonetheless may be prevented from obtaining a Limited Licence owing to other earlier convictions (eg. earlier drink-drive convictions, with the present offence thereby possible evidence of a return to earlier problematic drinking). It would not be unusual for such an applicant to be denied a Limited Licence on the discretionary ground of a perceived risk to public safety (section 105(2)(b) of the Act) One way to address these anomalies would be to permit drink-drivers who do not fall under the mandatory Alcohol Interlock scheme to obtain a Limited Licence (where they cannot otherwise, owing to other offences within the previous 5 years in terms of section 103(2)(d)) - perhaps subject to an Alcohol Interlock condition for the term of the Limited Licence (without the 3 year zero alcohol licence follow-on).

12 Particularly given that it is now proposed to reduce the initial stand-down disqualification period for an Alcohol Interlock to 28 days (from the current 3 months), or in line with that applicable to a drink-driver applying for a Limited Licence (section 104(1)(c) of the Act), I do not see why the whole Alcohol Interlock scheme could not be incorporated into the existing scheme for Limited Licence applications. Offenders who Parliament wishes to be subject to Alcohol Interlocks could - subject to special reasons relating to the offence or to the offender - simply be ordered or authorised to apply for a Limited Licence subject to an Alcohol Interlock condition, with or without the 3 year zero alcohol follow-on. If they do not apply for such a Limited Licence, they remain disqualified The reduction of the 3 month stand-down period for an Alcohol Interlock is a positive step. I never understood the rationale for that apparently quite arbitrary 3 month stand-down period if an offender is to be granted an Alcohol Interlock, then why not just get on with it asap? I similarly do not understand setting the level for mandatory Alcohol Interlock at 800 for breath or 160 blood for a single offence, when compared to the 1000 breath and 200 blood levels plus another offence within 5 years for section 65 (assessment and indefinite disqualification) to apply. It would surely be more logical and consistent for the section 65 criteria (including the any 3 drink-drives in 5 years rule) - as more indicative of problematic drinking - to be carried through to the mandatory Alcohol Interlock scheme, especially if it is to apply to first time offenders, and youth offenders (who will be included with only very low breath readings)? Alternatively, there should be provision for anyone serving or facing a disqualification for a drink-drive offence but who does not meet the criteria for a mandatory Alcohol Interlock to apply for one, perhaps with or without the 3 year zero alcohol licence follow-on.

13 While the Bill provides a process for persons subject to an Alcohol Interlock sentence to apply for it to be cancelled on a change in their circumstances, it does not appear to provide any process for an offender to come back the other way (ie. to apply for an Alcohol Interlock where one was not imposed at sentencing). However, circumstances can obviously improve just as commonly as they can deteriorate There is also an obvious problem with the new section 65AE(d)(ii) as proposed by the Bill what about an offender who is subject to a pre-existing indefinite disqualification? As drafted, they cannot start on an Alcohol Interlock until they have completed an existing disqualification. Does this mean that such offenders would have to first go through the process of assessment and removal of such indefinite disqualification (which they can only apply for after a minimum 1 year and 1 day current s100(3) of the Act) before they can start on their Alcohol Interlock? If so, that would be a dramatic backwards step in the scheme, in my view The new additional words (whether or not section 65(2) or (4) also applies) in the proposed s65ab(1)(a) appear to be referring only to where section 65 applies on the current offence, although that is not as clear as it could be. The amendments to section 65 do however seem to make it clear that any fresh indefinite disqualification to be imposed under that section for the current offence will be replaced by any Alcohol Interlock sentence imposed. It seems to me however that the argument and logic is surely stronger for replacement of an older pre-existing indefinite disqualification with an Alcohol Interlock than it is for a current one.

14 The Bill proposes to retain the requirement for alcohol assessment under section 65 for those offenders who have any 3 drink drive offences within 5 years (including youth offences), and those who have 2 offences within 5 years with at least one being breath over 1000, blood over 200, or a refusal. The Bill now makes it clear that anyone in that category who becomes subject to an Alcohol Interlock sentence will still have to pass a section 65 assessment for removal of the Alcohol Interlock, which is not express under the current section 65A (which simply requires the Court to end the person s indefinite disqualification, and does not address the assessment issue) Section 65AE(d)(ii) would also prevent a Court from granting an application for an Alcohol Interlock in respect of an existing drink-drive disqualification. That would need to be amended if Parliament were to accept that there should be provision for such applications to be made (as I have commented on above) Furthermore, if the first-time drink-driver were driving a vehicle in which they have any interest, then that vehicle will be subject to confiscation and sale by the Court if they have any conviction within the (again apparently arbitrary) previous 4 years for any of the qualifying offences set out in s129(1)(a) of the Sentencing Act The confiscation rule does appear to have been considered at all by the architects of section 65A or its proposed replacement in the Bill Where the confiscation rule applies, the offender is prohibited from acquiring any interest in a motor vehicle within 12 months thereafter section 136(2) of the Sentencing Act So how does this work with where the Court wishes to impose/grant an Alcohol Interlock Licence?

15 I have had a couple of such cases myself, in which I successfully argued against confiscation on the basis that it would result in extreme hardship to the offender, and would frustrate an Alcohol Interlock order. If the confiscation rule applies, and the Court wishes to impose an Alcohol Interlock, then the offender would otherwise have to have the device to fitted to a car they are merely borrowing or have the use of at someone else s leisure One consolation to impecunious offenders is that the confiscation rule tends to hit wealthier offenders, or at least those with more expensive vehicles, the worst. What many people do not realise about the confiscation rule is that the net proceeds of sale are ultimately returned to the offender (after deduction of towing and storage fees, auctioneer s commission, notified secured debt, and any unpaid fines) The real sting though is that the vehicle is sold by public auction without reserve. The greater the value of the vehicle, the bigger the loss to the offender at a no reserve auction, usually. They are also often left with a shortfall owing to a financier they have to pay, but of course with no vehicle to show for it. If they want to obtain an Alcohol Interlock Licence, they have to go out and find or fund a vehicle which will have to be owned by someone else. I have had at least one such case, where there were insufficient grounds to argue against confiscation on an extreme hardship basis. The problem was overcome by another related party offering to provide a car for the Alcohol Interlock What all that demonstrates is that the confiscation rule and Alcohol Interlocks are completely opposed in their objectives and work against each other. The former aims to deny the offender access to a vehicle while the latter aims to grant the offender access to a vehicle.

16 It seems pointless to me for the confiscation rule to apply at all where an Alcohol Interlock is to be imposed, or where the offender wishes to apply for a Limited Licence for that matter (as such applications are always and can only be based on the grounds of extreme hardship to the offender or undue hardship to someone other than the offender). What is the point in taking a vehicle away from an offender and preventing them from owning one, if on the other hand you want them to be driving one with an Alcohol Interlock? All you will be doing is forcing them to fund a replacement vehicle from the change they have left over after the sale by auction without reserve - increasing the financial barrier to obtaining an Alcohol Interlock For second-time offenders, they too will also usually receive a fine, usually with some uplift to mark that it is a second offence, and commonly with some uplift from the 6 month minimum disqualification. The fine would typically be in the range of $800 to $1200, depending on the alcohol reading. If the offender cannot afford to pay a fine, then Community Work will usually be imposed instead First and second time offenders can be sentenced by Community Magistrates, rather than a District Court Judge, and in Tauranga at least, Community Magistrates will deal with almost all such offenders. First and second time drink-drive offenders will generally not be granted Legal Aid (so that they might obtain fuller advice and representation from a lawyer other than a Duty Lawyer), as such offences usually carry no risk of imprisonment. Such offenders also routinely wish to simply get in and out of Court as quickly as they can, take their sentence and get on with their lives, so they may not even bother to see a Duty Lawyer. They are therefore often self-representing and commonly oblivious to, or grossly under-estimating, the consequences they are facing until the sentence is passed in Court. Many first-time offenders I have encountered over the years are even unaware that drink-driving carries mandatory disqualification, subject only to special reasons relating to the offence (s81).

17 It is relevant to the submissions I will make below regarding the funding pilot which was run through the Probation Service that first and second time offenders will rarely ever be remanded for a pre-sentence (PAC) report to be prepared by that Service (as such offenders are almost always facing only a fine or Community Work in addition to a disqualification and will be dealt with on the spot ). If the alcohol reading is high, they will commonly be referred to an Alcohol Advisor for an informal discussion postsentencing, providing information for safer drinking practices in particular I note that I have not been referring yet to the altogether different set of rules which apply to drivers under 20 years of age (ie. 3 month minimum disqualification for breath over 150 or blood over 30 section 57 of the Act, although such drivers are charged as if they are over 20 years if their breath is over 400 or blood over 80, with the higher penalties available for drivers of 20+ years in such cases) Offences against section 57(1) and (2) are qualifying offences for both section 65A and 65B, and the new proposed mandatory Alcohol Interlock scheme. So a 19 year old driver, if caught with very low readings of say 151 on their breath or 31 in their blood (each on their own carrying only a 3 month minimum disqualification) twice within a 5 year period would become subject to a mandatory Alcohol Interlock and 3 year zero alcohol licence. Surely this is an excessive and unjustified response to such low level offending - especially when such relatively minor offences would not even preclude the granting of a Limited Licence, under the present law Three such minor offences within a 5 year period also attracts the application of section 65 (indefinite disqualification) under the present law. In contrast, a 20+ year old driver blowing between 250 and 400 (or blood 50 to 80) receives only an instant fine and demerit points for such alcohol levels.

18 This is just another example of the many inconsistencies which permeate our drink-drive laws. Younger offenders will also usually be on lower incomes, such that the financial barrier to an Alcohol Interlock is usually also greater for them. 4. The Bill proposes that the Court may take into account an order for an Alcohol Interlock in assessing the level of any fine. This is a very small concession to make in my view, especially where the offender comes within the Alcohol Interlock scheme by virtue of low-level offending which attracts a low level of fine (for a youth offence, say a $300 fine). That is because if the average time spent on an Alcohol Interlock is 18 months, the cost to the offender for that will be about $3, In my view it is quite unwise and unnecessary for the grounds to not impose an Alcohol Interlock to be so limited as proposed by the Bill in the new s65ab(2). As I have mentioned earlier, in my experience, in every case where I have requested an Alcohol Interlock one has been granted, notwithstanding any aversion any Judges may have had toward s65a. 6. The 2 most obvious omissions from the listed grounds to not impose an Alcohol Interlock are : That the offender is unlikely to comply with such an order ; and 6.2. That the offender could not afford an Alcohol Interlock. I expect proponents of the Bill will raise the $4 million funding announcement in answer to the latter, and I will comment about that below.

19 Amongst the limited grounds on which an Alcohol Interlock might not be imposed, s65ab(2)(i) is particularly silly, in my view ie. if the offender lives more than 30km from a service centre. An offender may be prepared to move home address. Although they might live more than 30km from a service centre, they may travel for work closer to one. The offender might be prepared to accept a further distance from a service centre (bearing in mind they will only have to travel to it once per month in the ordinary course). What if they live 30.1km from a service centre? Should they be denied an Alcohol Interlock Licence when an offender who lives 30km from one is not? 6.4. This illustrates the problem with rigid rules and arbitrary thresholds, which have proliferated in this area of the law. If the Court is denied the flexibility to apply some common sense according to varying circumstances, then inconsistency and injustice will result (as I have tried to illustrate in other areas above) The grounds in s65ab(2)(e) also require comment. In my experience, many of the worst drink drivers (high levels, either over a short period of time or over many years) often do not own and could not afford to buy their own motor vehicle. They are often caught driving vehicles owned by others. They commonly spend most or all of their disposable income (which is often only a benefit) on their alcohol addiction. Such offenders will avoid mandatory Alcohol Interlock by virtue of the proposed s65ab(2)(e). Of course Parliament cannot be expected to fund the purchase of vehicles for such offenders. However the Alcohol Interlock scheme obviously presents a greater cost to an offender than merely the purchase or ownership costs of a motor vehicle.

20 7. The Funding Pilot The funding pilot was, in my view, too limited in its criteria for eligibility if Alcohol Interlocks are to become mandatory on the offending criteria proposed. Funding was only available to those offenders who were being sentenced to a community-based sentence (Supervision, Intensive Supervision, Community Detention, Community Work and Home Detention) not a fine As I understand it, in practise this meant funding was only available to those offenders who were engaged with the Probation Service as a result of being remanded for a presentence report. I further understand that there was only one such application in the Bay of Plenty region during the pilot which ran for about a year. Yet there surely would have been hundreds of offenders in this region who met the offending criteria for s65a application in that same period As I have mentioned above, almost all first and second time offenders will receive a fine, and will rarely ever be remanded for a pre-sentence report. Many such offenders will come within the criteria for mandatory Alcohol Interlock proposed by the Bill. However many of them will also be unable to afford the cost of the Alcohol Interlock scheme. Is funding going to be available to these offenders? If not, then there will be numerous offenders who will simply remain in effect indefinitely disqualified as they cannot afford the scheme, thereby defeating the purpose of the Bill in large part.

21 8. Conclusions / Summary of main points The offending criteria to bring someone within the proposed mandatory Alcohol Interlock scheme are too broad. I do not accept that first time offenders who blow under 1000 should necessarily be subject to the scheme a threshold would be more logical as that would be consistent with section 65. Nor the offender who has say 2 drink-drives in the 400 s within 5 years (3 within 5 years I would not dispute). Especially not a 19 year old who has say 2 in the 150 s in a 5 year period The criteria proposed for not imposing an Alcohol Interlock are too limited and unnecessarily restrictive. All that is required is a presumption in favour of an Alcohol Interlock, but preserving a discretion for the Court to not impose one for special reasons relating to the offence or the offender. Is there really any point in imposing an Alcohol Interlock upon an offender who has demonstrated recent inability or unwillingness to comply, or who cannot afford to pay for it? If their attitude or circumstances improve, there should be an ability to revisit the point, but in the Bill there is no provision for that There should also be the ability to apply for an Alcohol Interlock where the offending criteria for mandatory imposition are not met, and for existing disqualifications for drink-drive offending (with or without the 3 year zero alcohol follow-on) this would address the injustice that will result to those offenders who cannot obtain a Limited Licence, or who would have been eligible for an Alcohol Interlock Licence if only their offending had been worse A previous indefinite disqualification should be cancelled where an Alcohol Interlock is to be imposed on a fresh offence. There is no sound reason for it not to be Funding will need to be broader than that trialled in the funding pilot if the proposed mandatory scheme is to be truly effective.

22 The Alcohol Interlock scheme could be incorporated into the Limited Licence scheme. This would remove the clear inconsistencies between them The vehicle confiscation rule should not apply where the offender is to be subject to Alcohol Interlock or where they are to apply for a Limited Licence, for that matter. That would remove the clear conflict between these rules. (Mr) Viv Winiata Barrister Tauranga