Legislation to Correct Enforcement Anomalies

  • Mark Gosche
Transport

26 November 2001Media Statement

Problems regarding the use of breath-testing, speed measurement and weighing devices in the courts will be removed with a new Bill introduced into the House today.

Transport Minister Mark Gosche said the Land Transport (Road Safety Enforcement) Amendment Bill 2001 will correct discrepancies within road safety enforcement legislation.

“With the current legislation, we are seeing increasing challenges to drink driving, speeding and vehicle weight offences,” said Mr Gosche.

The proposed amendments address the issue surrounding the use of laser and static cameras in prosecutions against speeding drivers in 50 km/h areas and areas with temporary speed limits. Police have suspended use of these cameras while this issue is being resolved.

The Bill also addresses challenges to the use of evidential breath testing devices such as the Intoxilyzer 5000, said Mr Gosche.

“Technical problems in the current legislation have resulted in an increased risk that drivers may not be convicted for speeding, drink-driving or road user charges offences.

“At the same time challenges to offences in the courts are creating a backlog of cases waiting to be heard.”

“We need to be able to ensure a high level of public safety, through maintaining the ability to enforce speed and alcohol offences, especially as the festive season nears.”

The proposed amendments will ensure:
·defendants cannot challenge the properly administered evidential breath test, using an approved device, while putting in place appropriate safeguards to protect the defendants’ rights.
·certificates of accuracy for measuring speed and weighing devices can be produced without contention in proceedings for any speed offence, or any road user charges offence
·regulations can be made that set penalties for exceeding temporary speed limits, of up to a $1,000 fine, so that the current penalty for exceeding a temporary speed limit, in the traffic regulations, is preserved.
Background notes

LAND TRANSPORT (ROAD SAFETY ENFORCEMENT) AMENDMENT BILL 2001

Evidential Breath Testing Regime

Drivers who fail a breath-screening test at the roadside are required to undergo an evidential breath test using an approved device. There have been recent challenges in courts as to the accuracy of the device used for an evidential breath test. Defence counsel have sought access to the technical manual which contains the manufacturers’ specifications for the device. Defence counsel have also signalled similar challenges, seeking access to the EPROM (computer chip) in the devices.

The manufacturers of the machines are concerned because of the commercial sensitivity contained within the manuals and the EPROM. Release of the contents may provide competitors with the information to replicate the devices. Manufacturers have indicated that they would remove these manuals from New Zealand if they were required to disclose the manuals or EPROM in court.

Removal of these manuals may lead to the end of the evidential breath testing regime in New Zealand as it becomes more difficult and expensive to maintain these devices overseas. Alternative suppliers have also indicated reluctance to allow disclosure of maintenance manuals in courts. This could mean a return to compulsory blood testing – a more invasive procedure.

Current breath testing regime

·The initial test is often conducted at the roadside with a passive breath testing device (the Sniffer).
·The legal limit is 400 micrograms alcohol per litre of breath. (mcg/L).
·If a person blows between 400 - 600 mcg/L, they can elect to take a blood test.
·If they blow over 600 mcg/L of breath, there is no blood test option.
·Drivers who blow over 600 mcg/L can be charged and convicted on the basis of the evidential breath testing reading alone.
·If they blow over 800 mcg/L there is a mandatory 28 days suspension of their driver’s licence.

Legislative Changes Proposed

·To amend the Land Transport Act 1998 and the Transport Act 1962 to ensure the accuracy of the evidential breath test cannot be challenged in court.
·Each breath testing machine will have a certificate of compliance that must be produced in court by the prosecution.
·Drivers who test over 600 mcg/L are given the right to elect to have a blood test to assess the concentration of alcohol in their blood. If the person does not request a blood test within 10 minutes, a court can regard the result of the breath test as conclusive evidence, leading to a conviction.
·For those who test over 800 mcg/L, the current mandatory 28 days licence suspension at the roadside will continue. The Police will not longer have to wait until the blood test result is available.

Certificate of Accuracy of Devices

Speed Measurement Devices
At present, section 146 of the Land Transport Act (LT Act) allows Police to produce certificates of accuracy for speed measurement devices in prosecutions for offences under the Act. However, the 50 km/h speed limit, and temporary speed limits, can be established under a number of other Acts, so certificates for accuracy cannot be used for these offences.

A recent High Court decision (AJ Haskett v New Zealand Police, September 2001) exposed the difficulty with certificates of accuracy in defended hearings for 50 kph limits, and by-law, offences. This proof of accuracy needs to be determined by Police in person, at each court case, which in turn places a large burden on Police resources.

The Bill amends the LT Act so that certificates of accuracy for speed measuring devices can be produced in proceedings for any speeding offence.

Weighing devices
Section 147 of the LT Act 1998 allows for proof of accuracy of weighing devices. The Act makes certificates of accuracy only admissible in respect of “offences against this Act”. It therefore does not render certificates admissible in Road User Charge (RUC) Act prosecutions.

In the interim, the Secretary for Transport has authorised certifying technicians employed by New Zealand Police to certify, under section 23A of the RUC Act, that certificates of accuracy for scales are “records held for the purposes of the RUC Act”. The Bill amends legislation to render certificates of accuracy admissible under both the LT Act and the RUC Act as a permanent measure.

Temporary speed limit enforcement
Because of an anomaly in the law, Police are unable to enforce speeding offences in temporary speed limit zones. The Bill amends the Transport Act 1962 to correct this.