Land Transport Amendment Bill. Report of the Ministry of Transport

Transcription

1 Land Transport Amendment Bill Report of the Ministry of Transport April 2014

2 Contents Introduction... 3 Summary of Submissions... 5 Key matters raised within the scope of the Bill... 6 No right to elect a blood test for infringement offences (Clause 9)... 6 Use of the breath screening test as an evidentiary test...11 Rebuttable presumption (Clause 6)...12 Consequential changes to Section 61(1) of the Land Transport Act...14 Other amendments to the Bill...15 An inclusive infringement fee (Clause 7)...16 Technical amendments to the Bill...18 Matters raised outside the scope of the Bill...20 Support for 3 year review of the new limits and penalties...20 Alcohol interlocks and treatment...20 Hypothecated fine revenue...20 Discharges for first time offenders...21 Collection of information in hospitals relating to the contribution of alcohol...21 Inconsistency in the provision of information to drivers...22 Process for taking blood samples...22 Recommendations...24 Appendix 1 Benefit-cost breakdown...28 Appendix 2 List of submitters...33 Appendix 3 Advice on the merits of allowing drivers to organise their own blood tests...35 Page 2 of 37

3 Introduction 1. The Land Transport Amendment Bill (the Bill) amends the Land Transport Act 1998 with the primary aim of reducing the adult drink-driving limits. The main aspects of the Bill are that it will: 1.1 lower the legal adult breath alcohol concentration limit from 400 micrograms (mcg) of alcohol per litre of breath to 250mcg of alcohol per litre of breath and the legal blood alcohol concentration limit from 80 milligrams (mg) of alcohol per 100 millilitres (ml) of blood to 50mg of alcohol per 100ml of blood 1.2 put an infringement regime in place for breath alcohol offences in the range of 251 to 400mcg per litre of breath (inclusive) and set the infringement penalties at a $200 infringement fee and 50 demerit points 1.3 provide that adult drivers who fail an evidential breath test in the range of 251 to 400mcg per litre of breath not be able to elect to have an evidential blood test provide a higher infringement fee of $500, in addition to 50 demerit points, for drivers who fail or refuse to undergo the evidential breath test, but subsequently fail an evidential blood test in the range of 51 to 80mg per 100ml of blood (inclusive) 1.5 put an infringement regime in place for blood alcohol offences in the range of 51 to 80mg per 100ml of blood (inclusive), for the limited occasions when a mandatory blood test is required, for example, where a driver is hospitalised, and set the infringement penalties at a $200 infringement fee and 50 demerit points 1.6 make related consequential technical changes to other provisions in the principal Act in order to give full effect to the proposals above. 2. These and other components of the Bill are covered in greater detail in this report, along with a response to the Attorney-General s report on the Bill s inconsistency with the New Zealand Bill of Rights Act The Ministry of Transport s (the Ministry s) recommendation is that the Bill proceeds largely as drafted with some minor and technical amendments. Due to the short length of the Bill and the relatively limited number of issues that have been raised, the Ministry has commented on the key points that have been raised in submissions, by the Committee, and by the Attorney-General in his 1 An exception will apply to the holders of zero alcohol limit licences and interlock licences who fail an evidential breath test in this range - these drivers are charged with a criminal offence. Page 3 of 37

4 report on the Bill. The Ministry notes that a number of matters were raised in submissions that were outside the Bill s scope. We have provided brief comment on these matters. 4. The Ministry has also provided a clause-by-clause table of recommendations at the end of this report (pages 24 to 27) to assist the Committee in its consideration of the Bill. 5. All changes recommended are subject to the advice and drafting of the Parliamentary Counsel Office. Intent of the Bill 6. The Bill has been introduced to reduce the harm and social costs associated with alcohol-impaired driving. 7. For the three years to 2012, there was an average of 61 fatalities, 244 serious injuries and 761 minor injuries each year caused by at-fault adult drivers (aged 20 years and over) with some level of alcohol content 2. The total annual social cost 3 for these fatalities and injuries was about $446 million (in 2013 dollars). 8. Lowering the adult drink-driving limit reflects the fact that drivers put themselves and other road users at risk when driving in the range of 51 to 80mg per 100ml of blood because their cognitive and driving abilities are impaired. As well as saving lives in this range, the change is expected to save lives at levels of impairment above 80mg per 100ml of blood. 9. Cost-benefit analysis shows that there is a clear net benefit in reducing the legal adult drink-driving limits. The analysis indicates that an average of 3.4 fatalities and 64 injuries per year could be saved and that the policy would have a positive net present value of $200 million over 10 years 4, with a national benefit-cost ratio of 10:1. Road safety benefits contribute a large share to this value. This is a conservative estimate. A breakdown of these benefits and costs was provided to the Committee on 5 March 2014 and is attached as Appendix 1. 2 This excludes crashes where drugs were also a contributing factor and crashes where alcohol was suspected but not confirmed as a contributing factor. 3 Social cost is a measure of the total cost that occurs as the result of crash or injury. It includes loss of life and life quality, loss of economic output, medical costs, legal costs and vehicle damage costs. 4 Note that many submitters referred to estimates provided in the Ministry s 2010 advice which are higher. The reasons for this discrepancy are covered on page 19 of the Ministry s Regulatory Impact Statement titled Safer Journeys: lowering the legal alcohol limits for driving available at: Page 4 of 37

5 Summary of Submissions 10. A total of 178 submissions were received on the Bill, of which 70 were form letters based on a template response. Submissions were received from members of the general public and organisations representing the medical, health and road transport sectors. A list of all submitters is provided in Appendix Submitters were close to unanimous in their support for the lower adult drinkdriving limit as well as the introduction of an infringement regime for the new offences. Many submitters noted the impact the Bill would have in shifting public attitudes towards making drink-driving and the irresponsible consumption of alcohol in general less socially acceptable. They commented that the policy was a positive step towards reducing the wider harm resulting from the misuse of alcohol. 12. One submitter, the New Zealand Traffic Institute, raised the prospect of a lower limit for motorcyclists. This option was considered in the Ministry s regulatory impact analysis prior to the Bill being introduced. The analysis showed that motorcyclists were not involved in a greater proportion of alcohol related crashes than car and van drivers. 13. The Manurewa Action Team proposed an extension of the zero youth alcohol limit to 24 year olds, arguing that this would reflect the road safety risk profile of year old drivers. This was considered in the Ministry s analysis of options, albeit as an option to implement a zero alcohol limit for year olds as crash data indicated this age group to be at a higher risk of alcohol related crashes in comparison to other ages. 14. On balance, the Ministry considered differential limits for these specific groups of drivers to be unlikely to achieve significant additional road safety benefits over and above a 50mg per 100ml of blood limit for all adult drivers. 15. Several submitters proposed lowering the limit further in this Bill while some argued that the infringement penalties should be stronger. However, there was an acknowledgement that further strengthening the current Bill may be premature at this point in time, given the nature of current public attitudes towards drinking. 16. Several submitters also commented that an infringement regime was a proportionate response to the level of offending it was intended to address. It was also considered a pragmatic alternative to the cost and administrative issues associated with processing significant additional numbers of low-level offences through the court system. Page 5 of 37

6 Key matters raised within the scope of the Bill No right to elect a blood test for infringement offences (Clause 9) 17. Clause 9 provides that drivers who fail an evidential breath test between 251 and 400mcg per litre of breath are not able to elect a blood test. 18. The Royal Australasian College of Surgeons supported this clause. Waimakariri District Council also supported this clause along with the removal of the right to elect a blood test over 500mcg in order to bring greater efficiency gains for the Police. However, it believed this right should stay between 400mcg and 500mcg as this is the border between infringement and criminal penalties. 19. The New Zealand Automobile Association indicated it did not support this clause if it will lead to successful legal challenges to convictions. Dunedin Community Law Centre and Law for Change Dunedin suggested this clause may prove to be problematic and disruptive to the courts. Active West Coast submitted that the right to a blood test provided drivers with certainty that they had breached the drink-driving limit. 20. The New Zealand Law Society, the Legislation Advisory Committee and the New Zealand Drug Foundation stated that the availability of a blood test is an important safeguard in prosecutions relating to alcohol-affected driving. 21. The New Zealand Law Society concurred with the findings of the Attorney- General s report which concluded that that the Bill s proposed new section 70A(2) is inconsistent with the right to be presumed innocent affirmed in section 25(c) of the Bill of Rights Act. It recommended that the Bill be amended to fully recognise this right. 22. The New Zealand Drug Foundation proposed granting drivers the right to elect a blood test and relying on the higher $500 infringement fee as a deterrent to arbitrary requests of the blood test. An alternative option put forward was to provide drivers with the option of a second breath test on a different machine with a blood test electable if the two breath test results are inconsistent. Attorney-General s report 23. At the time the Bill was introduced into the House, the Attorney-General provided a section 7 report which found the Bill to be inconsistent with the right to be presumed innocent affirmed in section 25(c) of the Bill of Rights Act, and that the inconsistency could not be justified under section 5 of that Act as there are Page 6 of 37

7 reasonable alternatives that impair the right to be presumed innocent to a lesser degree. 24. The result of an evidential breath test is, under section 77(1) of the Land Transport Act, conclusively presumed to be the same as the proportion of alcohol in the person s breath at the time of the alleged offence. This presumption, in tandem with the exclusion under section 64(4) of any defence based on an actual or possible error in the result of an evidential breath test, means the result and accuracy of the device cannot be challenged. 25. In 2008, the Supreme Court affirmed the right to elect a blood test and the right to be advised of that right under section 70A of the Land Transport Act as an important safeguard against errors that may arise from the breath screening test or an evidential breath test. [Aylwin v Police]. 26. Unlike the evidential breath test, a blood test result can be challenged. The defendant also has the right to seek an independent analysis of their reserve blood specimen by a private analyst if they so wish. 27. The Attorney-General found that the proposal in the Bill, not to extend the right to elect a blood test to adult infringement offences, was not rationally connected to the Bill s objective. In doing so, the Attorney-General references the Ministry of Transport s regulatory impact statement which concluded that the impacts of removing the blood test across the entire regime would likely lead to justice costs that would more than offset the cost savings for Police. 28. The Attorney-General suggested that alternative proposals existed which could achieve the Bill s objective and impair the right to be presumed innocent to a lesser degree. This included Canadian law under which a driver can challenge the evidential breath test on grounds specified in the legislation. Departmental response 29. The Ministry has assessed the Canadian approach, to assist this Committee in responding to the Attorney-General s report, and discovered several notable differences between the Canadian and New Zealand regimes (see table below). Table 1 Differences between the Canadian and New Zealand regimes Aspects of the regime Type of offence Canadian regime Only one kind of offence exists blood alcohol. New Zealand regime Two separate offences exist blood alcohol, and breath alcohol. Page 7 of 37

8 Aspects of the regime Challenges Breath-blood correlation Forensics Electable blood test Taking of blood specimens Canadian regime In some provinces, an alcohol screening device result is sufficient for administrative sanctions to be applied for results between 51 and 80mg per 100ml. A driver s only challenge to the screening device is through electing an evidential breath test. Challenges to the evidential breath test device exist only at the criminal level, the relevant provisions being in the Criminal Code there is no right to challenge the evidential breath test for administrative sanctions. New Zealand regime At the criminal level (>80mg per 100ml) challenges to the breath test result will continue to be through electing a blood test to provide for alternative evidence to breath specimens. The Bill proposes that drivers at the infringement level (51 to 80mg per 100ml) will not be able to elect a blood test to challenge an evidential breath test result. New Zealand uses a more conservative correlation ratio (1977:1) than Canada (2,100:1) of air volume to blood volume. The more conservative the ratio, the greater the advantage afforded to drivers electing an evidential breath test over those who are immediately given a blood test. The Canadian regime necessarily depends on breath/blood correlations, as breath alcohol test results serve as proxies for a blood alcohol offence (other than in the limited instances where blood tests are required). The breath testing programme is tightly controlled by forensic laboratories, with Police undergoing extensive training in the use of breath testing devices. There is no right to elect a blood test at any level criminal or administrative so the only way of challenging the breath evidence is to challenge the breath test result directly. Canada lacks facilities for taking forensic blood specimens other than in hospitals. Generally, Police obtain a warrant to seize a hospital s blood specimen already taken for patient treatment purposes. There are also difficulties in having blood specimens analysed. New Zealand does not apply the same requirements as Canada, reflecting the existence of the blood test option. All drivers producing a positive evidential breath test result presently have the right to elect a blood test. The New Zealand Police have an extensive network of phlebotomists available to take blood specimens from drivers who are not hospitalised. There is also a well-functioning system of approved laboratory analysis of evidential specimens. Page 8 of 37

9 Aspects of the regime Presumptions Pre and postdriving consumption Canadian regime The Canadian regime has presumptions of accuracy and identity which can be rebutted, affecting reliance on evidential breath testing devices. There is a considerable degree of complexity around the requirements that must be met before the presumptions can apply, and the grounds on which the presumptions can be contested. The Carter defence in Canada allows the introduction of evidence as to the defendant s drinking immediately before driving and in the time between driving and testing, to contest the presumption of identity New Zealand regime In New Zealand, there are conclusive presumptions as to the identity of the breath or blood test result with the breath or blood alcohol level at the time of the offence. No defence is available that there was or may have been an error in the result of the breath screening test or evidential breath test. There is also a reasonable compliance answer to any would-be defence on the grounds that a provision has not been strictly complied with. There is no defence of this kind available in New Zealand law that allows for calculation of the effects of such drinking. The blood test option removes the need for any such defence. 30. The Attorney-General, in referring to the Canadian regime, suggests that an ability to challenge the evidential breath test may provide a reasonable alternative to an electable blood test. This would involve taking a fundamental element from one regime and attempting to graft it onto a materially different regime. To do so runs a high risk of unforeseen and unintended consequences for the recipient regime. An element from one system may simply not be appropriate for inclusion in another system, given the different history, development, and context of each. In this instance, it is noteworthy that the Canadian right to challenge does not exist at the equivalent level (alcohol levels between 51 to 80mg per 100ml) in respect of which it has been suggested for New Zealand. Ministry s Recommendation 31. For the reasons detailed above, the Ministry does not recommend adoption of the right to challenge the evidential breath test result as provided for in the Canadian regime. Departmental response to other proposals 32. The Ministry has assessed alternative options raised by the Committee and submitters such as private analysis of blood specimens and a second evidential breath test: Page 9 of 37

10 32.1 Allowing drivers to privately analyse their own blood specimens could present several practical and legal difficulties. The Ministry advised the Committee of the limitations of this proposal on 19 March 2014, attached as Appendix Providing drivers with a second evidential breath test in place of a blood test may still be inconsistent with the Bill of Rights Act as the driver would be unable to independently verify the result of the alternative evidential breath test (by means of a different kind of test) if they did not agree with the result. 33. The New Zealand Drug Foundation has proposed that the right to elect a blood test be reinstated for the adult infringement offences but with a higher infringement fee acting as a deterrent against arbitrary blood test requests. While this option aligns, in principle, with the option recommended in the Ministry s regulatory impact analysis, it was considered, but not advanced by the government. 34. The Ministry has not been able to identify an alternative solution which resolves the inconsistency of the Bill as currently drafted with the Bill of Rights Act and carries any less risk of disrupting the current regime without reneging on Government policy that drivers who fail an evidential breath test between 251 and 400mcg per litre of breath not to be able to elect a blood test. 35. The Ministry also notes the oral submission of the Institute of Environmental Science and Research (ESR). ESR indicated that while both the evidential breath and blood tests are very accurate and precise, a blood test result is more robust. However, under the current arrangements, a driver who receives an evidential breath test result of 250mcg per litre of breath will at that time produce an equivalent blood test result of 63mg per 100ml. As such, it is highly unlikely that they would pass a blood test if they elected one to be taken, when accounting for procedural time delays that would allow their alcohol content to subside. Ministry s Recommendation 36. On balance while acknowledging its inconsistency with the Bill of Rights Act, the Ministry recommends that Clause 9 of the Bill is retained. Page 10 of 37

11 Use of the breath screening test as an evidentiary test 38. In its oral evidence, the New Zealand Police Association proffered the merits of using a breath screening device as evidential proof of a drink-driving offence. This proposal would be similar to the Canadian regime described in Table 1 (row titled challenges ) although it would not only apply to infringement offences between 51 and 80mg per 100ml of blood but criminal offences above 80mg per 100ml of blood as well. 39. The Police Association argued that its proposal would assist the Police to process the additional drivers expected under the new regime (approximately 19,000 in the first year) as well as drivers with a breath alcohol reading above 80mg per 100ml. The Police are investigating this possibility but the work is not yet complete. 40. There are a number of factors that would need to be explored fully before adopting such an approach, including the accuracy and suitability of the Police s current screening devices to undertake an evidential role, and what additional checks, balances and risk mitigations would need to be put in place. For example, whether an option should be provided for a second test on either the screening device or an evidential breath test machine. Other government departments that would have an interest, such as the Ministry of Justice on Bill of Rights issues and court process impacts, and the Crown Law Office on litigation risks, would need to be consulted. 41. It is noted the Bill s inconsistency with the Bill of Rights Act is unlikely to be resolved by adopting this approach because it may lower the evidential standard below that proposed in the Bill. Ministry s Recommendation 42. The Ministry recommends that this proposal should not be progressed through the current Bill but supports the New Zealand Police investigating the proposal, in consultation with the relevant government departments. Page 11 of 37

12 Rebuttable presumption (Clause 6) 43. Clause 6 of the Bill inserts a presumption that a person who is medically or physically unable to provide a blood specimen is deemed to have refused the blood test, if they have previously failed to provide a blood specimen due to a medical or physical inability to do so. The person will have the ability to rebut this presumption. 44. This is intended to address a loophole in the enforcement regime for a small number of repeat drink-drivers who, knowing their inability to provide a blood specimen, elect a blood test when apprehended by a police officer and therefore escape prosecution. While the loophole remains for first time offenders, this is seen as unavoidable in order to deal with the more high risk repeat offender group. 45. Closing this loophole was the intended aim of the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill 2012 (the Admissibility Bill). However, the Ministry advised this Committee that the Admissibility Bill, as drafted, had significant deficiencies. 46. The Ministry considered legislative alternatives to address the identified loophole, including an alternative evidential breath test, an offence for refusing an evidential breath test, and the rebuttable presumption. Of these, establishing a rebuttable presumption seemed the best candidate but was outside the scope of the Admissibility Bill and is thus being progressed as part of the current Bill. 47. Several submitters wrote in support of this clause. The Legislation Advisory Committee provided more substantive comment, raising questions as to the application of the clause. Specifically it sought clarification as to the grounds on which the presumption may be rebutted and how the new provisions would interplay with the prejudicial to health defence in section 64(1) of the Land Transport Act. In light of this submission, the Ministry recommends a technical amendment to make the rebuttable presumption subject to section 64(1). 48. The Legislation Advisory Committee also added that it would be preferable if the presumption applies only if the medical reason for not providing a blood test is the same on each occasion. 49. The Ministry does not agree that this would be necessary. The purpose of the clause is to target the exploitation of a perceived difficulty in having blood extracted. Accordingly the cause of the difficulty is relatively incidental. A person Page 12 of 37

13 subject to the provision is at liberty to persuade a court that their election of a blood test was genuine and not an attempt to evade conviction for a drink drive offence. If they are able to do so, then the medical reason need not be the same on each occasion. Ministry s Recommendation 50. The Ministry recommends retaining the rebuttable presumption clause with the following amendment: 50.1 New subsection 60(3C): preface with the words Subject to section 64(1), and add after is presumed in the 2nd line the expression, in the absence of proof to the contrary,. 51. The Ministry also notes that the New Zealand Police are intending to make available a wider range of needles. The intent is to make it easier for a doctor or nurse to collect blood specimens from those people who have damaged or difficult veins. Page 13 of 37

14 Consequential changes to Section 61(1) of the Land Transport Act 52. The Legislation Advisory Committee raised the question of what, if any, amendments would be made to section 61(1) of the Land Transport Act consequential to the decision to lower the adult drink-driving limits. 53. The offences under section 61(1) of the Land Transport Act relate to a person, in charge of a motor vehicle, who causes injury or death and has an evidential breath test reading in excess of 400mcg per litre of breath or a blood alcohol level in excess of 80mg per 100ml. The maximum penalty is 5 years imprisonment (in the case of injury) and 10 years (in the case of death) or a $20,000 fine in either case. 54. As a result of the decision to lower the adult drink-driving limits, there is a question of whether the threshold for offences under section 61(1) of the Land Transport Act should be lowered to align with the infringement level offences. 55. Aligning the two offences would be consistent with the boundary set by the Bill between driving behaviour which is acceptable and that which is not. It would also provide an avenue for Police to prosecute drivers at lower breath and blood alcohol offences who kill or injure other road users. 56. On the other hand, aligning the two offences may result in a disproportionate regime as a driver could receive a $200 infringement fee and 50 demerit points for failing an evidential breath test between 251 and 400mcg per litre of breath whereas for causing injury or death in the same range, would be subject to a maximum prison sentence of 5 or 10 years respectively. 57. An alignment would also present complexity to the enforcement process as drivers causing death or injury may be refused a blood test for failing the evidential breath test between 251 and 400mcg per litre of breath but if it is later discovered they had injured or killed a road user, a criminal prosecution under section 61(1) of the Land Transport Act could be thrown out on the basis that they were not afforded their statutory right to a blood test. Ministry s Recommendation 58. As part of its decision to lower the adult drink-driving limits, Cabinet commissioned the Ministry of Transport to conduct a review of the penalties for drink-driving offences over 80mg per 100ml. The Ministry recommends that changes to section 61(1) of the Land Transport Act are examined in this review. Page 14 of 37

15 Other amendments to the Bill 59. Officials have identified the following changes to the Bill that would better reflect government policy on the recovery of costs associated with the blood tests. No public submissions were received on these matters. Recovery of costs associated with the blood test (Clauses 7 and 8) 60. Government policy is that the target group for recovery of the costs associated with a blood test is those drivers who attempt to frustrate the process by failing or refusing to provide an evidential breath specimen and who are then required to provide a blood specimen. The policy is that cost recovery will apply irrespective of the blood test result. 61. The Bill, as drafted, does not fully address this target group. Rather, it addresses the situation where adult drivers fail or refuse to undergo an evidential breath test and who then fail the blood test in the infringement offence range. 62. However, a driver may frustrate the breath testing process and secure an evidential blood test without cost, if they are found to be below the blood alcohol limit applicable to that driver. In accordance with Government policy, these drivers should also be subject to the recovery of the costs associated with a blood test in order to encourage all drivers to comply with the requirement to undergo an evidential breath test. 63. Recovery of the costs associated with the blood test would not apply to drivers who do undergo an evidential breath test, elect a blood test to challenge a positive breath test result, and are found to be below the blood alcohol limit. It would also not apply to drivers who are required to undergo a blood test on account of the non-availability of an evidential breath testing device or similar circumstances beyond their control (as provided for in s.72(1)(c)), or due to hospitalisation (as provided for in section 73). 64. The Bill would need to include a procedure for drivers to apply to have the costs associated with a blood test waived, provided they have a legitimate medical reason for failing to complete the evidential breath test. 65. Clause 8 also ensures that drivers are warned of the possible consequences if they fail or refuse to undergo an evidential breath test. However, as drafted, the clause is directed primarily at adult drivers in the infringement range who fail or refuse to undergo an evidential breath test and who then fail the blood test. An amendment is necessary to better direct this clause at all drivers who fail or Page 15 of 37

16 refuse to undergo an evidential breath test, and irrespective of the result of the blood test. Ministry s Recommendation 66. The Ministry recommends that the following amendments are made to the Bill in order to give effect to Government policy: 66.1 Amend Clause 7 to make all drivers who fail or refuse to undergo an evidential breath test and who subsequently undergo a blood test, liable for the costs associated with the blood test irrespective of the result of the blood test Amend Clause 7 to include a process whereby drivers with a medical justification for failing to complete the evidential breath test can apply to the Police (in the first instance) to have the costs associated with the blood test waived Amend Clause 8 so that it better applies to all drivers who fail or refuse to undergo an evidential breath test, and irrespective of the result of the blood test. An inclusive infringement fee (Clause 7) 67. The Bill provides that a person who commits an infringement offence against section 56(2A) or (2B), relating to adult blood alcohol offences, is liable to pay the blood test fee and any associated medical expenses in addition to the infringement fee imposed on the person. These costs are deemed to be an additional infringement fee. 68. For Police operational reasons, the infringement fee for a blood offence consequent upon refusing an evidential breath test should be all-inclusive of medical expenses and the blood test fee. In that case, clauses 7 and 8 will need to be amended. 69. The infringement fee will need to be raised to $700 to incorporate (subject to rounding) the blood test fee of $ (which is being increased with effect on 8 May 2014 from $93) and medical expenses of $105 (calculated based on the minimum expense involved in arranging a medical practitioner or medical officer to attend and undertake the blood test). Page 16 of 37

17 Ministry s Recommendation 70. The Ministry recommends that the following amendment is made to the Bill: 70.1 Amend Clause 7 so that it takes account of the all-inclusive $700 infringement fee. Page 17 of 37

18 Technical amendments to the Bill Clause New subsection 56(2A): In the 5 th line, change section 72(c) to section 72(1)(c). Comment: Correction of cross-reference. Note: The inclusion of reference to section 72(1)(c) means that a person who is unable to undergo an evidential breath test through no fault of their own will not be liable to the higher infringement offence for failing or refusing the breath test. If so charged, they will be able to apply under section 21(6) of the Summary Proceedings Act for a hearing, at which they can advance their medical excuse. 72. New subsection 56(2B)(a): In the 2 nd line, insert having between after and being. Comment: Consistency of wording with sections 60, 69 & New subsection 56(2B)(b): In the 5 th and 6 th lines, change the tense to exceeds 50 milligrams of alcohol per 100 millilitres of blood but does not exceed 80 milligrams. Comment: Consistency of tense with related provisions. Note: There is no equivalent provision under the youth infringement regime. Clause In the second line, remove the reference to section 56 (2A). Comment: The relevant offence which is intended to attract liability to pay the blood test fee and associated medical expenses is section 56 (2B). Clause New subsection 74(7)(a)(iia): in the 2 nd and 3 rd lines, change a reminder notice to an infringement notice. Comment: It has been pointed out that setting the start date of the 28-day period for making application for private blood analysis as the date of service of a reminder notice will give infringement defendants up to 56 days after the offence to apply. If defendants leave it until the last day, it is quite likely the matter will already have been referred to Collections as an unpaid infringement. This would add cost and inconvenience to both Police and courts. Courts have held that service of an infringement notice constitutes the commencement of proceedings, so that would be a more appropriate start date. Page 18 of 37

19 Section There is an erroneous cross reference in subsection (1) to section 69(1)(b). Subsequent to the Land Transport (Road Safety and Other Matters) Amendment Act 2011, the cross reference should now be to section 69(1)(aa). Comment: This may be regarded as out of scope, though it is a technical correction only. Page 19 of 37

20 Matters raised outside the scope of the Bill Support for 3 year review of the new limits and penalties 77. Submitters who commented on a period in which to review the new adult limits were largely in support of a 3 year period, with many suggesting that more changes to strengthen the drink-driving regime could be considered following that review. 78. The New Zealand Federation of Business and Professional Women suggested that gender-specific statistical data should be collected on the harm caused by drink-driving. This will be incorporated into the Ministry s review of the effectiveness of the new policy. This review will be conducted after 3 years of data have been collected. Alcohol interlocks and treatment 79. Several submitters discussed the need for greater use of alcohol screening, treatment and monitoring initiatives, including use of alcohol interlocks. 80. The New Zealand Automobile Association presented a proposal for expanding the alcohol interlock programme to be mandatory for serious and repeat offenders with alcohol assessment and treatment included in their sentences. The main reason cited for this proposal was the current low rate of uptake of the programme. 81. As part of its decision to lower the adult drink-driving limits, Cabinet commissioned the Ministry of Transport to conduct a review of the penalties for drink-driving offences over 80mg per 100ml of blood along with other measures such as the alcohol interlock programme, rehabilitation and monitoring of offenders. This will include consideration of the New Zealand Automobile Association s proposal. The review is being undertaken in 2014/15 in consultation with justice sector and other relevant agencies. Hypothecated fine revenue 82. Several submitters suggested that the revenue collected from fines issued for drink-driving be hypothecated for road safety initiatives. Submitters specifically proposed that the infringement fees collected be directed towards drink driver treatment and rehabilitation programmes, support for alcohol interlocks, alcohol screening and brief interventions and a comprehensive publicity campaign to keep the public well informed about changes to the alcohol limits for driving. Page 20 of 37

21 83. Officials consider hypothecation of fine revenue to be outside the scope of the Bill. Fine revenue collected through the proposed infringement regime will be directed to Crown accounts. The Bill s scope does not allow for any review of this arrangement and the Ministry does not consider it necessary. Discharges for first time offenders 84. One submitter, Mr. Christopher Harder submitted that first time offenders should receive a discharge without conviction under section 106 of the Sentencing Act 2002 if they were to voluntarily participate in an alcohol education programme and/or attend a meeting at Alcoholics Anonymous. He noted that such drivers would not escape punishment as they would still be liable to pay a fine and face mandatory disqualification. 85. Officials are not aware of this practice in any other overseas jurisdiction. However, Mr Harder s suggestion may have some merit as a means of incentivising first time offenders not to offend again. There would need to be a number of issues explored first, including the impact on the credibility of the penalty regime for drink driving offences, the compatibility with other drink drive penalties, and the legislative change, costs and administration involved with the scheme. To provide some idea of scale, there were 10,920 first time offences in As mentioned above, the Ministry of Transport is conducting a review of the penalties for drink-driving offences over 80mg per 100ml of blood along with other measures such as the alcohol interlock programme, rehabilitation and monitoring of offenders. Similar ideas to Mr Harder s suggestion will be considered as part of that review. Collection of information in hospitals relating to the contribution of alcohol 87. Two submitters raised interest in the collection of information on the contribution of alcohol to admissions in hospitals and emergency departments. 88. The Ministry of Health has advised that data is currently recorded in its national collections, called the National Minimum Dataset, on hospital admissions which are directly related to alcohol. 89. Data is also collected where admissions are indirectly related to alcohol (e.g. motor vehicle accidents that are not directly related with an alcohol related illness). However, further analysis will be needed to ascertain if, as suggested anecdotally by submitters, this data is being under-recorded. Page 21 of 37

22 90. The Ministry of Health has also advised that it is investigating options to introduce an alcohol involved flag for recording hospitalisation events with a view to implementing its preferred option by 1 July Inconsistency in the provision of information to drivers 91. The New Zealand Automobile Association raised an inconsistency in the Bill where the Police are required to inform drivers who fail an evidential breath test in the infringement range of the recoverable costs of having to undergo a blood test while a similar requirement does not exist for drivers who fail the breath test in the criminal regime. 92. However, the current legislation does not prevent the Police from providing advice on the potential costs of the blood test to drivers failing an evidential breath test in the criminal regime. Drivers also have the option, before electing a blood test, to consult a lawyer for advice. This provides another opportunity for drivers to be made aware of the potential costs. Process for taking blood samples 93. Dr John Bonning, Clinical Director of the Emergency Department at Waikato Hospital raised a number of issues in relation to the blood specimen collecting legislation, procedure and equipment These were to: 93.1 Simplify the paperwork for documenting an evidential blood sample to bring it into line with Victoria and New South Wales Simplify the drink driving legislation bringing it into line with Australia so that it is not the most contested legislation on our statute books Simplify the testing, to bring it into line with Australia where a breath test reading of zero ends the process, negating the need for blood tests Discard the dangerous open vial system in favour of vacutainers. 94. New Zealand Police are currently consolidating all the blood test forms into one form that will be simpler, clearer and less time-consuming for both enforcement and medical personnel to complete. Dr Bonning has been actively involved in this process and has provided feedback to the Police on the revised draft form. As the form has to be consistent with the New Zealand legislation, the Ministry does not support adopting the forms used in Australia. Page 22 of 37

23 95. The Ministry does not support Dr Bonning s second proposal to simplify the legislation by bringing it into line with Australia. The risks of grafting the legislation of another jurisdiction onto New Zealand s is discussed in relation to the relevance of the Canadian legislation (refer paragraph 30). 96. The basis of Dr Bonning s third suggestion in relation to simplification of the testing process is unclear. If a driver in New Zealand produces a zero alcohol reading on an evidential breath test or a reading that is below their applicable legal breath alcohol limit, the testing process terminates. The driver does not go on to undergo a blood test The Police are planning to introduce vacutainer devices for the collection and storage of blood specimens. This will address the concerns that Dr Bonning has raised about the use of open vials for collecting blood. It is anticipated that the new devices will be introduced later this year once the necessary legal approvals and practical work have been completed and training made available to front-line enforcement staff and the medical personnel who take the specimens. 5 An exception may apply in cases where the officer forms a good cause to suspect that the driver may have used a dug or drugs. In this case the officer may initiate the drug testing process. Page 23 of 37

24 Recommendations 98. The table below details the Ministry s recommendations on a clause by clause basis. Table 2 Clause-by-clause recommendations on the Bill Clause Description Submissions Recommendation Clause 1 Title States the title of the Act, which is the Land Transport Amendment Act Several form submitters wrote in support of this clause. Retain this clause. Clause 2 Commencement Clause 3 Principal Act Clause 4 Section 11 amended (Drivers not to exceed specified alcohol limits) Clause 5 Section 56 amended (Contravention of specified breath or blood-alcohol limit) Provides for the Bill to come into force on 1 December Provides that the Bill amends the Land Transport Act Replaces the specified alcohol limits of 400mcg per litre and 80mg per 100ml with 250mcg per litre (section 11(a)) and 50mg per 100ml (section 11(b)) respectively. Inserts an infringement regime for the new alcohol offences between mcg per litre (section 56(1A)) and 50-80mg per 100ml (section 56(2A) and (2B)). One proposal to delay till Several form submitters wrote in support of this clause. Several form submitters wrote in support of this clause. Near unanimous support with several calls for an even lower limit. Four submitters did not comment on this clause. Near unanimous support with several calls for tougher penalties to be applied. Retain this clause. Retain this clause. Retain this clause. Make the following technical amendments: New subsection 56(2A): In the 5th line, change section 72(c) to section 72(1)(c) New subsection 56(2B)(a): In the 2nd line, insert having between after and being New subsection 56(2B)(b): In the 5th and 6th lines, change the tense to exceeds 50 milligrams of alcohol per 100 millilitres of blood but does not exceed 80 milligrams Page 24 of 37

25 Clause Description Submissions Recommendation Clause 6 Section 60 amended (Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test) Inserts a presumption that a person who is medically or physically unable to provide a blood specimen is deemed to have refused the blood test, if they have previously failed to provide a blood specimen due to a medical or Some submitters wrote in to support this clause with questions raised by one submitter as to its application. Make one technical amendment: New subsection 60(3C): preface with the words Subject to section 64(1), and add after is presumed in the 2nd line the expression, in the absence of proof to the contrary, Clause 7 Section 67 amended (Blood test fee) Clause 8 Section 69 amended (Who must undergo evidential breath test) physical inability to do so. Provides that a person who commits an infringement offence against section 56(2A) or (2B), relating to blood alcohol offences, is liable to pay the blood test fee and any associated medical expenses in addition to the infringement fee imposed on the person. Inserts a new section 69(1A) which provides that in the event a person fails or refuses to undergo an evidential breath test, an enforcement officer must advise them of the consequences of doing so. Several form submitters wrote in support of this clause. Several form submitters wrote in support of this clause. Make the following amendments: In the first line, remove the reference to section 56 (2A). Include reference to a process whereby drivers with a medical justification for failing to complete the breath test can request that the costs associated with the blood test be waived Make the following amendments: Amend Clause 8 to require drivers to cover the cost of the blood test and actual medical expenses if they fail or refuse to undergo the breath test and pass the subsequent evidential blood test Amend clause 8 (new subsection 69(1A)) so that it takes account of the revised $700 infringement fee and is better directed at those adults in the infringement offence range who fail or refuse to undergo an evidential breath test. Page 25 of 37

26 Clause Description Submissions Recommendation Clause 9 Section 70A replaced (Right to elect blood test) Retain this clause. Clause 10 Section 72 amended (Who must give blood specimen at places other than hospital or surgery) Clause 11 Section 74 amended (Procedure for dealing with blood specimens) Clause 12 Section 77 amended (Presumptions relating to alcoholtesting) Clause 13 Section 121 amended (Enforcement officer may immobilise vehicle, etc, in specified circumstances) Clause 14 Consequential amendments to principal Act Amends section 70A to provide that drivers with an evidential breath test result between mcg per litre will not have the right to elect a blood test. This does not apply to drivers under 20 or with alcohol interlock or zero alcohol licences. Inserts an amendment to section 72 consequential on the new section 70A. Makes an amendment to section 74(7)(a) consequential on the new section 56. Makes an amendment to section 77 that is consequential to the new section 70A. Amends section 121(3) to allow an enforcement officer to immobilise a vehicle where the result of an evidential breath test is positive. Makes amendments to the principal Act consequential to the lower breath and blood alcohol limits. 6 submitters questioned the inclusion of this clause, with 2 referencing the Attorney- General s report. 5 submitters wrote in support of this clause. Several form submitters wrote in support of this clause. Several form submitters wrote in support of this clause. Several form submitters wrote in support of this clause. 24 submitters commented on this clause, with all of them indicating their support. Several form submitters wrote in support of this clause. Retain this clause. Make one technical amendment: New subsection 74(7)(a)(iia): in the 2nd and 3rd lines, change a reminder notice to an infringement notice Retain this clause. Retain this clause. Retain this clause. Page 26 of 37

27 Clause Description Submissions Recommendation Clause 15 Consequential amendments to regulations Makes amendments to the Land Transport (Offences and Penalties) Regulations 1999 consequential to the lower breath and blood alcohol limits. Several form submitters wrote in support of this clause. Retain this clause. Section 71 Meaning of apparently younger than 20 Out of scope of the Bill technical correction only. There is an erroneous cross reference in subsection (1) to section 69(1)(b). Subsequent to the Land Transport (Road Safety and Other Matters) Amendment Act 2011, the cross reference should now be to section 69(1)(aa). Page 27 of 37

28 Appendix 1 Benefit-cost breakdown 5 March 2014 Report for the Transport and Industrial Relations Committee on the Benefits and Costs of the Land Transport Amendment Bill 2013 Background 1. At its meeting of 13 February 2013, the Committee asked for further information on the breakdown of the costs and benefits of lowering the adult drink-drive limit, particularly the impacts on consumers and the hospitality industry. During the Ministry s briefing on the Land Transport Amendment Bill, officials described the impact on these two groups as relatively small. Cost-benefit analysis (CBA) report 2. In developing a regulatory impact statement for the Land Transport Amendment Bill 2013, a comprehensive cost-benefit analysis 6 was undertaken. The following information is based on that report. Note, the cost-benefit analysis assumes drivers in the infringement regime have the right to elect a blood test. Cost-benefit analysis results Summary of costs and benefits from lowering the blood alcohol concentration (BAC) limit to 50 milligrams (mg) per 100 millilitres (ml) of blood 3. Based on a 10-year evaluation period, the estimated net benefit of lowering the legal adult BAC to 50mg/100ml is $200 million (NPV, in 2013 dollars) with a national benefit cost ratio ( BCR ) of around Table 1.1 provides a summary of the costs and benefits that comprise that net benefit figure. 6 Alcohol Impairment Project Lowering Legal Adult Blood Concentration Cost-Benefit Analysis, Ministry of Transport, November 2013.

29 Table 1.1: Summary of costs and benefits of lowering the legal adult BAC limit to 50mg/100ml Mid-range estimates 10-year total (in present value, 2013 $) Benefits Road safety $207.2 Reduction in absenteeism $1.9 Improvement in health effects $0.1 Reduction in social cost of crime $0.3 Administrative cost savings to NZ Police $7.2 Administrative cost savings to Justice Sector $5.4 Total benefits in present value $222.1 Costs Net increase in transport costs $1.5 Compliance costs to offenders $0.7 Changes in consumer surplus $0.9 Changes in producer surplus $0.9 Administrative costs to NZ Police $13.8 Administrative costs to NZ Transport Agency $0.9 Administrative costs to justice sector $3.7 Total costs in present value $22.5 Net present value (2014 to 2023) $m $199.6 Benefit:Cost Ratio 9.9 Note: Figures may not sum to total due to rounding Benefits 5. Total benefits were estimated at $222.1 million (2013$). Figure 1.1 illustrates the distribution of benefits. 6. The largest benefit component of the policy change is road safety, estimated at $207 million (in present value (PV), 2014 to 2023). This represents around 93 percent of the estimated total benefits. It equates to an average reduction of 3.4 fatalities and 64 injuries a year. 7. The second largest benefits component is the potential reduction in administrative costs (resulting from a reduction in BAC greater than 80mg/100ml offences) to NZ Police and Ministry of Justice of $12.6 million (in PV, 2014 to 2023). These potential cost savings would result from a reduction in the number of offences at a BAC greater than 80mg/100ml. 8. The cost savings result mainly from a reduced volume of court hearings and the costs associated with home detention and community related sentences. In fact, government Page 29 of 37

30 administrative costs appear in both the benefit and cost components (see Table 1.1). There is the additional cost of handling extra offences (detected at a BAC between 51 and 80mg/100ml) and other licensing related costs to NZ Police, NZ Transport Agency and the Justice Sector. As the total government administrative cost increase is higher than the total potential savings, a net cost increase of $5.8 million (in present value or PV, 2014 to 2023) is estimated. 9. The remaining benefits are made up of reduced lost productivity due to absenteeism (i.e. days off from work), reduced health care costs and reduced social cost of crime (estimated at $2.4 million or 1 percent of the total). Figure 1.1: Distribution of benefits Costs 10. Total costs are estimated at $22.5 million (2013$). Figure 1.2 illustrates the distribution of these costs. 11. The largest cost component of the policy change is the administration cost of handling extra offences, estimated at $18.4 million (in PV, 2014 to 2023), most of which is incurred by NZ Police. 12. The second largest cost component is costs and dis-benefits incurred to consumers of $3.15 million (in PV, 2014 to 2023), or 14 percent of the total. This is made up of: a net increase in transport costs due to changes in drinking venues or transport arrangements, estimated at $1.5 million (in PV, 2014 to 2023) this is a net figure because some consumers may actually face reduced transport costs as a result of choosing to stay at home to consume alcohol. Page 30 of 37

31 a loss in consumer surplus resulting from a small reduction in alcohol consumption, estimated at $0.9 million (in PV, 2014 to 2023) this figure is comparatively small because only a small reduction in alcohol consumed is expected. For example, over half of alcohol beverages are consumed at home. As well, a large proportion of drivers tested at the roadside during high alcohol hours had no alcohol detected (around 94 percent). a small increase in compliance costs for offenders detected at a BAC between 51 and 80mg/100ml, estimated at $0.7 million (in PV, 2014 to 2023) this involved the time taken for evidential breath tests and the time involved in making fine payments. 13. The remaining item of $0.9 million is incurred by the hospitality industry (loss in producer surplus) this is also related to a small decline in alcohol consumption. Figure 1.2: Distribution of costs Conclusion 14. Consumers can be expected to face some costs from a change in the adult BAC limit. These come from the possibility that some consumers would reduce their alcohol consumption (measured in loss of consumer surplus) or may need to make alternative travel arrangements. There would also be additional compliance costs for offenders in the 51 to 80mg/100ml range. These costs were factored in the cost-benefit analysis but overall are small at $3.15 million over 10 years relative to the benefits. 15. The cost-benefit analysis also considered the possible impacts on the hospitality industry. Lowering the adult BAC limit would be expected to have some impact on the level of alcohol consumed and the places where it is consumed. While it is not possible to predict Page 31 of 37