Land Transport Act 1998 Westlaw Lexis Nexis
Each offence requires that the person tested “drove or attempted to drive” a vehicle on a road. “Drives” is not defined in the Act, although in s 2 “driver”, in relation to any vehicle, is defined as “including the rider of the motor cycle or moped or bicycle”. “Drive” has a corresponding meaning.
Multiple drivers: Two people can control a vehicle so that each is driving it: Langman v Valentine [1952] 2 All ER 803.
“Driving” stationary vehicles: See Doyle v Harvey [1923] VLR 271 (SC).
Inference of driving: To be found on the basis of established facts: Danaher v Police HC Auckland CRI-2007-404-97.
Party to another’s driving: See Ashton v Police (1964) 9 New Zealand Police Law Reports 45
“Attempts to drive” – the law relating to attempts found in s 72 of the Crimes Act 1961 does apply to s 56 see Berry v Police HC Dunedin CRI-2006-412-46. To prove an attempt to commit an offence, it must be shown that the offender intended to commit the offence and took a real, practical, and proximate step to that end. See Police v Wylie [1976] 2 NZLR 167 (CA); Collier v Police HC Auckland M1111/84; Boyle v Police [1970] NZLR 136 (SC); Hamilton v Police HC Auckland M357/84.
Standard of proof – Not solely dependent upon production of the evidential breath test result: see Williams v Police HC Christchurch CRI-2006-409-91, 6 July 2006.
Interaction of s 58(1)(b): Convictions under s 58(1)(b) of the Transport Act 1962 do qualify as “corresponding convictions” under s 56(5). See R v Savage CA83/06, 19 June 2006.
Challenges to alcohol tests: The Supreme Court conclusively proscribed defences on the basis of procedural errors to alcohol tests. See Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1, (2008) 24 CRNZ 235.
An example of how s 64(5) ought to operate in practice is Police v Clarke HC Auckland CRI-2006-404-34, 12 May 2006. The High Court held that proof of an excess blood alcohol charge is not dependent upon prior proof of an evidential breath test.
Total absence of fault: a defendant can escape liability by proving total absence of fault on the balance of probabilities: Civil Aviation Department v MacKenzie (1983) 1 CRNZ 38. “Total absence of fault” refers to the objective standard of the reasonable person: Police v Starkey HC Auckland AP 25/89 [1989] NZHC 531. The defendant must establish that there was no lack of care: Smith v Ministry of Transport HC Hamilton AP82/89 [1989] NZHC 537.
Involuntariness – an element of involuntariness will provide a defence. See O’Neill v Ministry of Transport HC Auckland M66/84 [1984] NZHC 56.
Compulsion – s 24 Crimes Act 1961 is available as a defence. See R v Maurirere CA215/87 [1988] NZCA 9 (25 February 1988).