Caught Over 400? What an Excess Breath Alcohol Charge Means

In New Zealand, 400 micrograms of alcohol per litre of breath is the line that matters. Below it (down to 251) you are looking at an infringement. Over 400 micrograms, or over 80 milligrams of alcohol per 100 millilitres of blood, you are facing a criminal charge of excess breath or blood alcohol, and that goes to the District Court.

What is at stake

A conviction for excess breath alcohol carries a mandatory minimum six month disqualification, plus a fine of up to $4,500 or, in serious cases, up to three months imprisonment. A criminal conviction can also affect employment, travel to certain countries, and professional registration. For a lot of my clients, the disqualification and the conviction itself matter far more than the fine.

The interlock threshold

If your reading is very high, the rules change. A breath alcohol level over 800 micrograms (or blood over 160 milligrams) triggers a mandatory alcohol interlock sentence, even on a first offence. The same applies to repeat offending. An interlock is a device fitted to your car that requires a clean breath sample before it will start.

Can the charge be challenged?

Often, yes. Excess breath alcohol cases depend heavily on procedure: how the stop happened, whether the correct statutory questions were asked, whether the testing device was used properly and within time, and whether you were given your rights. These are not technicalities for their own sake. They are the requirements Parliament built into the law, and if they were not met the result may not be admissible.

And if the evidence is sound?

Then the work is about the outcome. Depending on the facts, that might mean arguing for a discharge without conviction, applying for a limited licence so you can keep working, or presenting your situation at sentencing in the strongest possible light. The earlier you get advice, the more room there is to move. See our full drink driving defence page for more.