Legal loophole in drink driving laws

The case of 16 year old Levi Elliot who killed another teenager in a drink driving accident illustrates a significant failing in New Zealand’s drink driving laws.


On May 28, 2011 Mr Elliot and 17 year old Shaun Nilson were drinking at a gathering at a friend’s home in Hamilton.  At 1.00am they went for a drive with Mr Elliot driving – even though he was still on a restricted licence and should not have had a passenger in the car.  Mr Nilson was killed when he was flung from the car after Elliott tried to overtake another car at speed and crashed into a power pole.

Mr Elliot was found to be five times over the legal alcohol limit (0.03) for his age. This is almost double the legal limit (at 0.08) for an adult.  The Government subsequently reduced the legal blood alcohol limit for those under the age of 20 to zero.

On November 17, Justice Ellis sentenced Elliott to three years in prison and disqualified him from driving for four years from his release.

Finite vs indefinite disqualifications

This death was caused by drink driving – and immaturity.  Although it is unclear from the available information whether or not Mr Elliot has a drinking problem, this is clearly a death where binge drinking is a significant factor.

Mr Elliot will be eligible for parole after one year.  He may or may not be released at that point. But before he gets his driver’s licence back – in fact before any drink driver gets their licence back – they should have to attend an assessment to see if they have a drinking problem and need education, counselling or treatment.

However, the only drink-drivers required by law to attend an alcohol and drug assessment are those given an ‘indefinite’ disqualification – affecting only about 1,500 of the 30,000 people convicted for this offence every year.  The vast majority of drink-drivers are disqualified for between six months and 12 months, and automatically get their licence back at the end of the disqualification – with no questions asked.

Mr Elliot was disqualified for four years.  This is a finite sentence, not an indefinite one – so he will be able to get his driver’s licence back at the end of that period simply by resitting the test. He will not be required to attend an assessment to see if he has a drinking problem – nor will he be required to attend an alcohol education programme.

This scenario is not uncommon. In September 2009, 71-year-old Alison Downer killed a cyclist near Otaki. It was her fourth conviction. Ms Downer was sent to prison for 2½ years and given an eight-year disqualification.  In March 2010, Frances Stubbs was fleeing a police alcohol checkpoint in Blenheim when she crashed and killed a mother of five children. Ms Stubbs was given eight months home detention and disqualified for 3½ years. There are many other cases where someone has been killed by a drink driver and the offender has been given a lengthy disqualification but not been disqualified indefinitely.

How long is indefinite?

Even for those given an ‘indefinite’ disqualification, the outcome is fairly meaningless. There’s nothing ‘indefinite’ about it. After a minimum period of one year and one day, drink-drivers with an ‘indefinite’ disqualification can see an approved alcohol assessor and begin the process of getting their licence back. If they pass the assessment, and resit their licence, they can be back on the road within 18 months. Although 1,500 people a year receive indefinite disqualifications, about 1,000 others with indefinite disqualifications get their licences back each year.  Even recidivist drink-drivers with five or more convictions seem to have little difficulty regaining their driver’s licence.

For a detailed analysis of how New Zealand’s drink driving laws encourage repeat drink driving see Flying Blind – How the justice system perpetuates crime and the Corrections Department fails to correct

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