Got breath tested last night

[SMOKEU]

Last night I was out in my mates car. He has a class 1 learners. I have had my class 1 full for over 2 years so I was the legal 'supervisor'. We got pulled over by the fuzz and they checked our licences, saw that he was on a learners so I showed them my full, and he got breath tested. He had no alcohol at all in his system. I got breath tested and alcohol showed up in my breath. So they did another test on me where I had to blow into a tube to show how much alcohol was in me. I'm of a skinny build so I can't handle much booze and I'm 19 so the limit for me is 150mg of alcohol per litre of breath. I had 4 beers in a 2 hour period so I should have been well over the limit, but I was under. Before the officer breath tested me he said that if I was over the limit he couldn't really do anything to me as I was not driving but the alcohol may affect my ability to supervise my mate. So I want to know should the officer have breath tested me since I was not actually driving? And what could have happened to me if I was over the limit? There is nothing in the road code about the supervisor being intoxicated.

[PirateJafa]

I have always worked to the basis that the supervisor can be intoxicated.

I regularly pick up my folks when they have been drinking, and I'm on my restricted license (six years and counting).

Hopefully this is right, otherwise I'll need to fork out at last for my full test. (SMCers will laugh)

[Mully]

My understanding of the letter of the law is that if the supervisor is intoxicated, then they can be charged. Since technically they are responsible for the vehicle.

Although, I think the cop would have to be having a bad day to have a go at that.

IANAL, so caveat emptor.

[YellowDog]

I don't think that the cop had any right to breathalise you. The law says that you need to be in the car only. So far as I know you could actually be deceased and still be compliant with the law.

Maybe one of our KB cops can throw some light on this?

[Max Preload]

From this (http://www.legislation.govt.nz/regulation/public/1999/0100/latest/DLM281347.html), there doesn't appear to be any conditions imposed on the supervisor with regards to sobriety.

I recall when I was learning to drive that the driving instructor would take us in pairs i.e. two learners and himself. He'd always be in the front passenger seat, with one learner driving and one in the rear seat. We were stopped by a Snake once when I was a passenger and the told he couldn't have a passenger. Apparently this is was wrong, the instructor told the snake this, who checked with his supervisor and confirmed this was the case, and that clause appears to confirm it - there is no restriction mentioned regarding carrying passengers in a car when the driver is on their learners.

[avgas]

Say worst case scenario, your mate drives down the road a couple of k's and you both end up round a power pole. Now they have a case to show that the passenger of learner drivers needs to be sober. How do you think they got the "legal alcohol level" - i reality any alcohol makes you impaired - but they had to do something to set a limit.
Either that or it was to scare the shit out of you guys - good cop/bad cop routine to make sure you don't do anything stupid later on. Happened to me frequently in my youth

[Skyryder]

I have no idea if you had have been over the limit whether you would have been charged or not.

But I bet your bottom dollar someone in the Crown Law Office would have given some serious thought to 'doing you.'

This is the stuff of test cases. I think you were lucky.


Skyryder

[Indoo]

But I bet your bottom dollar someone in the Crown Law Office would have given some serious thought to 'doing you.'

Doing him for what exactly?

[scumdog]

I have no idea if you had have been over the limit whether you would have been charged or not.

But I bet your bottom dollar someone in the Crown Law Office would have given some serious thought to 'doing you.'

This is the stuff of test cases. I think you were lucky.


Skyryder

No frikkin need for C.L.O.

There's been a case already where 'supervisor' of driver was done for over the eba limit 'cos they were 'in charge'.

Sorry, can't remember when/who etc.

[Toot Toot]

No frikkin need for C.L.O.

There's been a case already where 'supervisor' of driver was done for over the eba limit 'cos they were 'in charge'.

Sorry, can't remember when/who etc.
Hence the term was coined.. D.I.C. or "Drunk In Charge" of a vehicle

[Malcolm]

you're doing it all wrong. If you're on a learners or restricted and driving with passengers when you shouldn't be - or as in your case the supposed supervisor may be over the limit, you use the excuse:
"I'm sorry, but my mate(s) were at a party and they got too boozed/stoned/ass-pounded to drive home, and they weren't allowed to stay so I went to pick them up. I know it's illegal but I thought it was better than them driving".

Bonus points if one of the passengers is covered in vomit.

[scumdog]

you're doing it all wrong. If you're on a learners or restricted and driving with passengers when you shouldn't be - or as in your case the supposed supervisor may be over the limit, you use the excuse:
"I'm sorry, but my mate(s) were at a party and they got too boozed/stoned/ass-pounded to drive home, and they weren't allowed to stay so I went to pick them up. I know it's illegal but I thought it was better than them driving".

Bonus points if one of the passengers is covered in vomit.

"OK, yer mates can all chip in for the $400 ticket, sorry they can't help with the 25 demerits yer gonna get though.."

[discotex]

"OK, yer mates can all chip in for the $400 ticket, sorry they can't help with the 25 demerits yer gonna get though.."

Driving outside license conditions is a much better outcome than DUI for the supervisor though.

[Malcolm]

worked for me on more than one occasion :P

[Indoo]

No frikkin need for C.L.O.

There's been a case already where 'supervisor' of driver was done for over the eba limit 'cos they were 'in charge'.

Sorry, can't remember when/who etc.

I'd be interested in that case, part of the ingredients of the offence are drove or attempted to drive a vehicle on a road etc, there is no way a supervisor could be charged it would be so utterly ridiculous and against the principle of our incredibly lax drink driving law's.

[Ixion]

I have always been of the understanding that the supervisor can be charged if intoxicated, and that there is case law to that effect.

But, I can find no relevant authority in the Land Transport Act 1998, or anywhere else. They all specifiy "drive or attempt to drive". It would require a serious perversion of the English language to say the supervisor was actually driving.

Be careful however. Be VERY careful . Sect 61 of the Act , "Causing death orinjury while under the influence " is less vague (or more so, depending how you look at it). It specifies the person in charge of the vehicle not the driver



A person commits an indictable offence if the person is in charge of a motor vehicle and causes bodily injury to or the death of a person


It would not be very hard to make a case that the supervisor is "in charge" of the vehicle.

Informed comment and/or correction would be welcome.

[scumdog]

I have always been of the understanding that the supervisor can be charged if intoxicated, and that there is case law to that effect.

But, I can find no relevant authority in the Land Transport Act 1998, or anywhere else. They all specifiy "drive or attempt to drive". It would require a serious perversion of the English language to say the supervisor was actually driving.

Be careful however. Be VERY careful . Sect 61 of the Act , "Causing death orinjury while under the influence " is less vague (or more so, depending how you look at it). It specifies the person in charge of the vehicle not the driver



It would not be very hard to make a case that the supervisor is "in charge" of the vehicle.

Informed comment and/or correction would be welcome.

Ya got it summed up pretty well ya hoary old bugger..

[SMOKEU]

Say for example, I had my full for 1 year, then I would not have been a supervisor and my mate could have got a fine and demerits for breach of license conditions. The fact that I've had my full for over 2 years does not make me any more physically in charge of the vehicle than if I didn't have a license at all. And even though I'm meant to be supervising my mate, I'm still not in charge of the vehicle whatsoever regardless of weather or not I'm intoxicated. If he decides to go 150kmh in a 100 zone I can't stop him, or should I just rip up the hand brake at 150kmh so I'm in control? (not that I'm stupid enough to interfere with the controls on a vehicle when someone else is driving). So the whole part of the supervisor being in charge of the vehicle is complete bullshit, I have no control over the drivers actions if I'm just a passenger.

[Indiana_Jones]

So what if 2 guys in a car with full licences crash.

And they both say the other person was in charge of the vehicle.

Or a Spartagus "I was in charge" "No I was"

....But you were driving. No sir, I was driving but bob and frank in the back seat had been given the watch sir.

lol

-Indy

[jafar]

you're doing it all wrong. If you're on a learners or restricted and driving with passengers when you shouldn't be - or as in your case the supposed supervisor may be over the limit, you use the excuse:
"I'm sorry, but my mate(s) were at a party and they got too boozed/stoned/ass-pounded to drive home, and they weren't allowed to stay so I went to pick them up. I know it's illegal but I thought it was better than them driving".

Bonus points if one of the passengers is covered in vomit.

$400.00 per passenger , makes for an expensive nite out:gob:

[Jantar]

Say for example, I had my full for 1 year, then I would not have been a supervisor and my mate could have got a fine and demerits for breach of license conditions. The fact that I've had my full for over 2 years does not make me any more physically in charge of the vehicle than if I didn't have a license at all. And even though I'm meant to be supervising my mate, I'm still not in charge of the vehicle whatsoever regardless of weather or not I'm intoxicated. If he decides to go 150kmh in a 100 zone I can't stop him, or should I just rip up the hand brake at 150kmh so I'm in control? (not that I'm stupid enough to interfere with the controls on a vehicle when someone else is driving). So the whole part of the supervisor being in charge of the vehicle is complete bullshit, I have no control over the drivers actions if I'm just a passenger.

You are confusing the terms "In Charge" and "In Control". The captain of a ship is always the person "in charge", yet is very seldom "in control". "In charge" means the person who gives the orders, "in control" means the person who is actually driving (or steering or piloting).

However the mere fact that you are the licenced driver doesn't automatically mean that you are the person in charge. If you had been intoxicated, and in the passenger seat, then its better that the driver gets done for driving outside the conditions of his licence than that you get done for DIC.

[mdnzz]

Having been in this position I can assure you the officer was well within their rights to test the 'supervisor' as well as the driver.

As the supervisor you are responsible for the way the driver is operating the vehicle at anytime you are present.
This means that yes you can be charged as well if they decide to race through the streets at 100kms.

If you have had a drink, but not enough to be over the limit yet the learner driver is outside their conditions,
ie: late at night driving you home from the party/pub, then the officer has the right to forbid you both from driving for at least 24 hours.

They can forbid you to drive for a variety of reasons.

All of this comes down to your attitude when pulled over.
Remember unless they have already QP'd your plate and checked you out they have no idea who you are, they are just doing a job, a smile, polite acknowledgment and they will treat you the same.

While many do not use these rights they use their better judgment, if you try to push them or test them then sometimes it will bite you in the ass big time.

Unless you are doing anything that breaks the law then there really is nothing for you to worry about and nothing for them to do.

Guess a lot of people are quick to bag others, must be just how they like to be treated themselves.

[Rcktfsh]

section 68 of the land transport act sets out who maybe breath tested,

Who must undergo breath screening test
(1)An enforcement officer may require any of the following persons to undergo a breath screening test without delay:
(a)A driver of, or a person attempting to drive, a motor vehicle on a road:
(b)A person whom the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
(c)If an accident has occurred involving a motor vehicle,—
(i)The driver of the vehicle at the time of the accident; or
(ii)If the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person whom the officer has good cause to suspect was in the motor vehicle at the time of the accident.

driver is interpreted in s2 as

Driver, in relation to a vehicle, includes the rider of the motor cycle or moped or bicycle;

I can't see how a supervisor can therfore be defined as driver?

[mdnzz]

I can't see how a supervisor can therfore be defined as driver?

I think you'll find the supervisor is not regarded as the driver, they are a supervisor, and as such must be capable of doing such.

Would you allow a driving instructor to be incapacitated by drugs/alcohol passing out licenses?

Or a senior officer taking a rookie officer out in a squad car while he had had a few liquid lunches?

Its not really about who was driving but the fact that the supervisor was also breath tested.

[discotex]

Its not really about who was driving but the fact that the supervisor was also breath tested.

I think you'll find the point Rcktfsh was making is that who the police have legal right to breath test is covered by legislation. Anyone else has the right of refusal.

My reading of the legislation is that the supervisor would be well within their rights to refuse a breath test given they are not the driver as included in 1a or 1b.

[Rcktfsh]

Digressing slightly but handy to know that all current statutes are available free of charge at www.legislation.govt.nz

[peasea]

You are confusing the terms "In Charge" and "In Control". The captain of a ship is always the person "in charge", yet is very seldom "in control". "In charge" means the person who gives the orders, "in control" means the person who is actually driving (or steering or piloting).

However the mere fact that you are the licenced driver doesn't automatically mean that you are the person in charge. If you had been intoxicated, and in the passenger seat, then its better that the driver gets done for driving outside the conditions of his licence than that you get done for DIC.

Have to agree on that one. A few bucks and a few points mean bugger all compared to loss of license and a DIC conviction.

[scumdog]

Not quite the same thing but a rear-seat passenger in a vehicle can be done for careless use...

[discotex]

Not quite the same thing but a rear-seat passenger in a vehicle can be done for careless use...

How does that work?

[Max Preload]

Having been in this position I can assure you the officer was well within their rights to test the 'supervisor' as well as the driver.

Don't confuse that request, with which you willingly complied, with the powers of the officer to compel you to comply.

[Ixion]

How does that work?

Well, one example might be a rear seat passenger opening a door while the vehicle was moving (perhaps to vex a lanesplitting motorcyclist). Passengers in cars have duties and responsibilities as well, both under the various Transport Acts and under common law.

Here is an interesting thought however. Suppose a vehicle is stopped. The driver has a L licence. In the passenger seat is a fully licensed person. He, however, disclaims any responsibility and says "No, I am not a supervisor, I am just along for the ride. What the driver does is nothing to do with me". Where does that leave either the driver or the supervisor (The Driver Licensing Rule 1999 says " The holder must not drive the vehicle (unless driving a motorcycle, moped, or an all-terrain vehicle) unless the holder is accompanied in the vehicle by a person who—

(i) Holds, and has held for at least 2 years, a full licence of a class that authorises that person to drive that vehicle; and
(ii) Is in charge of the vehicle; and"
). If the supervisor may disclaim his charge, then that gets him off the hook of a DIC charge. At the expense of the L driver. Who could howver, say "News to me. I checked he had a full, told him I was an L. He never said he wasn't in charge until the cop asked hikm. How am I supposed to know?"

But the "in charge" bit is problematic. If taken logically this would mean that, for instance, the supervisor would be responsible for any speeding ticket incurred by the driver. Note also, the Rule says "is in charge", not "accepts charge of ". On such minutiae lawyers grow fat.

[Skyryder]

No frikkin need for C.L.O.

There's been a case already where 'supervisor' of driver was done for over the eba limit 'cos they were 'in charge'.

Sorry, can't remember when/who etc.



Can't say I am surprised. Common sense dictates that you can not have a 'suprvisor' in charge of a vehicle any more than you can have the driver over the limit.

But Ixion raises an interesting point in that the 'passanger' refuses to accept responsibility. Or more to the the point 'all' passagers that have a full licence refuse to accept responsibility.

It's threads such as these that make KB so interesting


Skyryder

[SMOKEU]

But how am I in charge of what the driver does? I can't stop him from driving the way he wants to.

[Street Gerbil]

I was breathtested a month ago an hour after a beer. The device showed no alcohol. So I thought: "huh? then what the hell was I drinking???"

[mdnzz]

But how am I in charge of what the driver does? I can't stop him from driving the way he wants to.

The point of being a supervisor is to be responsible for the learner license driver.

If you don't like their driving get out and let them get fined for breaches etc.

If their driving is that bad, do you really need the answer,
GET THEM OFF THE FREAKING ROAD,
there are enough idiots out there now and if you think you cannot influence your peers from doin stupid stuff then maybe you need to re-evaluate your friendships or even let the heaven forbid authorities know,
you may save somebodies life in the future....it could be yours

[Patrick]

I'd be interested in that case, part of the ingredients of the offence are drove or attempted to drive a vehicle on a road etc, there is no way a supervisor could be charged it would be so utterly ridiculous and against the principle of our incredibly lax drink driving law's.

Check out a prec code book... plenty of "aiding" and "abetting" the driver to do plenty of shit...

Aiding/abetting...
- a learner/unlicenced driver to drive
- dangerous/careless driving
- incapable driver etc

just to name a few....

Doesn't surprise at all that there will be something for the overseer, but it is rarely used......

[mdnzz]

But Ixion raises an interesting point in that the 'passanger' refuses to accept responsibility. Or more to the the point 'all' passagers that have a full licence refuse to accept responsibility.


Skyryder

It is this situation where the officer can enforce a driving ban on all occupants of the car, and of course fine the driver for any breaches etc.

But I guess you will always get some who will never step up to the plate and be responsible.

[Patrick]

But I guess you will always get some who will never step up to the plate and be responsible.

True. It's always someone elses fault.....

[Ixion]

Here's an even more interesting conundrum.

If it be accepted that a drunken supervisor is liable to be done for DIC , even though he's not actually behind the wheel (on the basis of being "in charge"), what then if the DRIVER is sober but the SUPERVISOR is pissed?

Obviously , only one person can be "in charge". If that's the guy behind the wheel, then it's hard to see how the supervisor can be pinged. If the supervisor is the one "in charge" then in logic it shouldn't matter how drunk the guy behind the wheel is.

And what is the supervisor were sober, but asleep ? Or has a valid licence but is incapacitated - not by drink but by being injured or some such . Can the supervisor be in a wheel chair?

They never thought of these things. Our laws are so ineptly drafted.

The law is also vague about what happens if the supervisor has an overseas licence. You are allowed to DRIVE for a year on an overseas licence. Are you allowed also to supervise a learner?

What if the supervisors licence is supended (on the 28 day thing). Not disqualified. A disqualified driver does not "hold .. a full licence..". But a suspended driver still 'holds' his licence. He's not allowed to drive , but is he allowed to supervise? The law would appear to allow it.

[MSTRS]

Here's an even more interesting conundrum.

....

What if the supervisors licence is supended (on the 28 day thing). Not disqualified. A disqualified driver does not "hold .. a full licence..". But a suspended driver still 'holds' his licence. He's not allowed to drive , but is he allowed to supervise? The law would appear to allow it.

I think you will find that there is no difference in the two. 'You' must produce your licence when requested. Even if you still have the bit of plastic, it will be flagged in the system and therefore surely is invalid for the purposes of use in a vehicle matter.

[Ixion]

Not entirely. Suspension is different to disqualification (or not having a licence).

A disqualified driver is "disqualified from holding or obtaining" a licence. He doesn't have a licence any more. But a suspended licence is just vthat - merely suspended. The driver still has his licence. He can't use it 9without getting into trouble) because the Land Transport Act 1998 says

A person commits an offence if the person drives a motor vehicle on a road—

(a) While disqualified from holding or obtaining a driver licence; or



(b) Contrary to a limited licence; or



(c) While his or her driver licence is suspended or revoked.

Note it say "drive" . The supervisor isn't driving. H emay be "in charge" But the Act doesn't mention being in charge . Just driving.

And the Driver Licencing Rule only says that the supervisor must hold a licence.

Note that the DLR *does* say "a full licence of a class that authorises that person to drive that vehicle; and"

So the question is , if a person holds a suspended Class 1 F licence (has done for two years blah blah), is that suspended licence of a class which authorises the person blah blah . "Of a class" is the critical bit. A good argument could be made that the phrase is intended to ensure that a class1 learner is supervised by someone holding a class 1 licence (not just a class 6 f'instance). Or that a class 5 learner is likewise supervised by a class 5 holder. In which case the suspended licence would still be applicable .

On such minutiae lawyers grow fat. But it's an interesting point. The law drafters should make these things more clear.

[Patrick]

......The law is also vague about what happens if the supervisor has an overseas licence. You are allowed to DRIVE for a year on an overseas licence. Are you allowed also to supervise a learner?

Yes

What if the supervisors licence is supended (on the 28 day thing). Not disqualified. A disqualified driver does not "hold .. a full licence..". But a suspended driver still 'holds' his licence. He's not allowed to drive , but is he allowed to supervise? The law would appear to allow it.

A suspended driver does not hold a current licence, coz its suspended. He is not a supervisor for a learner/restricted.

[Insanity_rules]

About a million years ago when my wife was my girlfriend and had a learners she drove me home from the pub. I was so pissed I was snoring in the passenger seat and she got pulled up. GF shows license to cop, cop says does he have a full pointing at the alcohol fueled mess propped up next to her. She nodded, cop said OK have a nice night and let her go.

Good cop eh?

[MSTRS]

Note that the DLR *does* say "[SIZE=2][I]a full licence of a class that authorises that person to drive that vehicle; and"

There's the clarification


A suspended driver does not hold a current licence, coz its suspended. He is not a supervisor for a learner/restricted.

Thanks

[Patrick]

About a million years ago when my wife was my girlfriend and had a learners she drove me home from the pub. I was so pissed I was snoring in the passenger seat and she got pulled up. GF shows license to cop, cop says does he have a full pointing at the alcohol fueled mess propped up next to her. She nodded, cop said OK have a nice night and let her go.

Good cop eh?

Lazy, more like it... You both got lucky.

[steve_t]

About a million years ago when my wife was my girlfriend and had a learners she drove me home from the pub. I was so pissed I was snoring in the passenger seat and she got pulled up. GF shows license to cop, cop says does he have a full pointing at the alcohol fueled mess propped up next to her. She nodded, cop said OK have a nice night and let her go.

Good cop eh?

Girls get away with so much more. A girl that used to work with me who has done some modelling was pulled over for speeding in her car. She was going a fair whack over the limit - 78 in a 50 zone. She unbuttoned her blouse top button and rolled down the window. He questioned her for about 5 mins and then said "this time you get a warning, but slow down, pretty eyes" ... :sick:
But I drive out in the country and get ticketed for going 111km/h in a 100 zone!!

[Insanity_rules]

Lazy, more like it... You both got lucky.

While what your saying is very true and I don't disagree I'd like to believe that it was more a judgement call than anything else.


Girls get away with so much more. A girl that used to work with me who has done some modelling was pulled over for speeding in her car. She was going a fair whack over the limit - 78 in a 50 zone. She unbuttoned her blouse top button and rolled down the window. He questioned her for about 5 mins and then said "this time you get a warning, but slow down, pretty eyes" ... :sick:
But I drive out in the country and get ticketed for going 111km/h in a 100 zone!!

I totally agree but in this situation my other half looked and sounded way more frightened than anything else.

[Patrick]

While what your saying is very true and I don't disagree I'd like to believe that it was more a judgement call than anything else.

Probably... but a scratch and win learner licence holder has not shown any ability to drive, let alone at night with the added distraction of pissed passengers.

She has shown an ability to read, however....