An alcohol interlock is an electronic device (similar to a breathalyser) that can be fitted to a car, which prevents the driver from driving if he or she has been drinking.1 The Land Transport Act 1998 was amended in 2018 to require alcohol interlock sentences to be imposed by the Court when sentencing certain defendants, such as where a driver provides an evidential breath test reading of or over 800 micrograms of alcohol per litre of breath. Once subject to an alcohol interlock sentence, the driver’s options will generally be to either comply with the strictures of the sentence, or apply for cancellation.
There are pros and cons of applying for cancellation of an alcohol interlock sentence. Ultimately, each case is unique, and different considerations will apply depending upon the particular circumstances of your case.
If you have been convicted of a qualifying alcohol related driving offence, the Court will impose an alcohol interlock sentence,2 unless a statutory exception applies.3 An alcohol interlock sentence includes a disqualification period of at least 28 days,4 and after that, a minimum of 12 months where you can only drive a vehicle fitted with an alcohol interlock device.5
At the end of your disqualification period, you must apply for an alcohol interlock licence if you want to lawfully drive. If you fail to do so, and you are caught driving a vehicle without an alcohol interlock device installed, you risk being charged with driving while disqualified.6
Once you have successfully applied to exit the alcohol interlock regime, you will then be subject to a zero alcohol licence (pink licence), which lasts for three years from the date that it is issued.7 What this means is that you cannot drink a drop of alcohol before you drive for the entire three-year period.
Very often, following the imposition of an alcohol interlock sentence, for any number of reasons, personal circumstances change significantly. For example, you may no longer own a vehicle to which a device can be fitted. Or, you lose your employment – you no longer have the financial ability to fund either installation and/or the monthly service fee of the alcohol interlock device, which can be costly even if you qualify for a subsidy.
Fortunately, where a person’s circumstances have changed significantly, the law allows that person to apply to the Court to seek cancellation of the alcohol interlock sentence.8
Conversely, the law also provides for a person to apply to the Court seeking an alcohol interlock sentence, if a statutory exception applied at the time of sentencing, if the person was instead disqualified from holding or obtaining a drivers licence, and if the exception no longer applies.9 In that case, the Court can cancel the disqualification, and if it does so, must impose an alcohol interlock sentence.10
Prior to applying to cancel an alcohol interlock sentence, it is important to understand the potential ramifications on your ability to lawfully drive, because if the Court exercises its discretion to cancel the sentence, it must disqualify the person from driving instead.
So, what that means is, upon successful application to the Court to cancel the alcohol interlock sentence, the Court must disqualify a person from holding or obtaining a drivers licence for the period that would have been applicable, had the alcohol interlock sentence not been imposed in the first place.11 The Court must also authorise a person to apply for a zero alcohol licence at the end of the period of disqualification,12 as noted above.
In setting the length of the disqualification period to be substituted in place of the alcohol interlock sentence, the Court takes into account the length of time that has elapsed since the sentence was imposed, and the person’s previous compliance with the alcohol interlock requirements.13
In practice, orders for disqualification generally start on the day the order is made, or alternatively when any previous orders for disqualification cease to have effect. However, it is possible to ask the Court to direct that the start date of the disqualification period be backdated14 upon cancellation of an alcohol interlock sentence. We have successfully sought this for clients in the past.
However, the Court’s power to backdate the start date of a disqualification is discretionary, and in our view, discretion will likely be exercised cautiously, depending upon the circumstances of the particular case at hand.
Prior to making an application to cancel an alcohol interlock sentence, you need to take into consideration that you could potentially find yourself disqualified from driving for a longer period than you anticipated.
If you have any questions about your existing alcohol interlock sentence, or your circumstances have changed significantly since your sentence was imposed, we strongly encourage you to contact a criminal lawyer, or your local Community Law Centre for guidance and advice specifically tailored to your case.
- https://www.govt.nz/browse/transport/driving-fines-and-penalties/alcohol-interlocks ↩︎
- Land Transport Act, s65AB. ↩︎
- Land Transport Act, s65AB(2) ↩︎
- Land Transport Act, s65AE ↩︎
- Land Transport Act, s65AG(3) ↩︎
- Land Transport Act, s32(1)(b) & 5 (1)(c) ↩︎
- Land Transport Act, s65B(2) ↩︎
- Land Transport Act, s100B ↩︎
- Land Transport Act, s100C ↩︎
- Land Transport Act, s100C(2) ↩︎
- Land Transport Act, s100B(2)(a) ↩︎
- Land Transport Act, s100B(2)(b) ↩︎
- Land Transport Act, s100B(3) ↩︎
- Land Transport Act, s85(1) ↩︎