Division 3Random breath testing and
breath analysis
13Power to conduct random breath
testing
(cf Traffic Act, s 4E (2A), (2B), (6) and
(8))
(1)
A police officer may require a person to undergo
a breath test in accordance with the officer’s directions if the officer
has reasonable cause to believe that the person:
(a)
is or was driving a motor vehicle on a road or
road related area, or
(b)
is or was occupying the driving seat of a motor
vehicle on a road or road related area and attempting to put the motor vehicle
in motion, or
(c)
being the holder of a driver licence, is or was
occupying the seat in a motor vehicle next to a holder of a learner licence
while the holder of the learner licence is or was driving the vehicle on a
road or road related area.
(2)
A person must not, when required by a police
officer to undergo a breath test under subsection (1), refuse or fail to
undergo the breath test in accordance with the directions of the
officer.
Maximum penalty: 10 penalty
units.
(3)
It is a defence to a prosecution for an offence
under subsection (2) if the defendant satisfies the court that the defendant
was unable on medical grounds, at the time the defendant was required to do
so, to undergo a breath test.
(3A)
Before requiring a person to undergo a breath
test under subsection (1), and for the purpose of determining whether to
conduct such a test, a police officer may conduct a preliminary assessment to
determine if alcohol is present in the person’s breath by requiring the
person to talk into a device that indicates the presence of
alcohol.
(4)
Without limiting any other power or authority, a
police officer may, for the purposes of this section, request or signal the
driver of a motor vehicle to stop the vehicle.
(5)
A person must comply with any request or signal
made or given to the person by a police officer under subsection
(4).
Maximum penalty: 10 penalty
units.
s 13: Am 2005 No 98,
Sch 1.19.
14Arrest following failed breath
test
(cf Traffic Act, s 4E (3))
(1)
A police officer may exercise the powers referred
to in subsection (2) in respect of a person if:
(a1)
it appears to the officer from a breath test
carried out under section 13 (1) by the officer that the device by means of
which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of more than zero
grammes in 210 litres of breath or 100 millilitres of blood and the officer
has reasonable cause to believe the person is the holder of a learner licence
or a provisional licence in respect of the motor vehicle concerned,
or
(a)
it appears to the officer from a breath test
carried out under section 13 (1) by the officer that the device by means of
which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of not less than
0.02 grammes in 210 litres of breath or 100 millilitres of blood and the
officer has reasonable cause to believe the person is a special category
driver in respect of the motor vehicle concerned, or
(b)
it appears to the officer from a breath test
carried out under section 13 (1) by the officer that the device by means of
which the test was carried out indicates that there may be present in the
person’s breath or blood a concentration of alcohol of not less than
0.05 grammes in 210 litres of breath or 100 millilitres of blood,
or
(c)
the person refused to undergo a breath test
required by a police officer under section 13 (1) or fails to undergo that
test in accordance with the directions of the
officer.
(2)
A police officer may:
(a)
arrest a person referred to in subsection (1)
without warrant, and
(b)
take the person, or cause the person to be taken,
with such force as may be necessary, to a police station or some other place
as the officer considers desirable, and
(c)
detain the person, or cause the person to be
detained, at that police station or other place for the purposes of this
Division.
s 14: Am 2004 No 17,
Sch 1 [9]; 2007 No 61, Sch 1 [8] [10]; 2007 No 99, Sch 1 [7].
15Breath analysis following
arrest
(cf Traffic Act, s 4E (4), (7), (8) and
(10))
(1)
A police officer may require a person who has
been arrested under section 14 to submit to a breath analysis in accordance
with the directions of the officer.
(2)
A breath analysis must be carried out by a police
officer authorised to do so by the Commissioner of Police at or near a police
station or such other place as that officer considers
desirable.
(3)
As soon as practicable after a person has
submitted to a breath analysis, the police officer operating the breath
analysing instrument must deliver a written statement to that person signed by
that officer specifying the following:
(a)
the concentration of alcohol determined by the
analysis to be present in that person’s breath or blood and expressed in
grammes of alcohol in 210 litres of breath or 100 millilitres of
blood,
(b)
the day on and time of the day at which the
breath analysis was completed.
(4)
A person who is required by a police officer
under subsection (1) to submit to a breath analysis must not refuse or fail to
submit to that analysis in accordance with the directions of the
officer.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(5)
It is a defence to a prosecution for an offence
under this section if the defendant satisfies the court that the defendant was
unable on medical grounds, at the time the defendant was required to do so, to
submit to a breath analysis.
s 15: Am 2007 No 99,
Sch 1 [8].
16Offence—wilfully
altering alcohol concentration following request for breath test or breath
analysis
(cf Traffic Act, s 4E (7) and (8))
A person must not wilfully do anything to alter
the concentration of alcohol in the person’s breath or blood:
(a)
between the time of the event referred to in
section 13 (1) (a), (b) or (c) in respect of which the person has been
required by a police officer to undergo a breath test and the time when the
person undergoes that test, or
(b)
if the person is required by a police officer to
submit to a breath analysis—between the time of the event referred to in
section 13 (1) (a), (b) or (c) in respect of which the person has been
required by a police officer to undergo a breath test and the time when the
person submits to the breath analysis.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
s 16: Am 2007 No 99,
Sch 1 [9].
17When breath test or breath
analysis not permitted
(cf Traffic Act, s 4E (5))
A police officer cannot require a person to
undergo a breath test or to submit to a breath analysis:
(a)
if that person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of his
or her treatment has been notified of the intention to make the requisition
and the medical practitioner does not object on the grounds that compliance
with it would be prejudicial to the proper care or treatment of that person,
or
(b)
if it appears to the officer that it would, by
reason of injuries sustained by that person, be dangerous to that
person’s medical condition to undergo a breath test or submit to a
breath analysis, or
(c)
at any time after the expiration of 2 hours from
the occurrence of the event by reason of which the officer was entitled under
section 13 (1) to require that person to undergo a breath test,
or
(d)
at that person’s
home.
s 17: Am 2006 No 79,
Sch 1 [2].
18Procedure to be followed for
breath analysis
(cf Traffic Act, s 4E (9))
(1)
A person who is required under section 15 (1) to
submit to a breath analysis may request the police officer making the
requisition to arrange for a medical practitioner to take, in the presence of
a police officer, a sample of that person’s blood, for analysis in
accordance with this section at that person’s own
expense.
(2)
A request by a person under subsection (1), or
the taking of a sample of that person’s blood, does not absolve that
person from the obligation imposed on the person to submit to a breath
analysis in accordance with section 15 (1).
(3)
A medical practitioner by whom a sample of a
person’s blood is taken under an arrangement referred to in subsection
(1) must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s
blood.
(e)
(4)
The medical practitioner must, as soon as
reasonably practicable after the sample of blood is taken, arrange for the
sample to be submitted to a laboratory prescribed by the regulations for
analysis by an analyst to determine the concentration of alcohol in the
blood.
(5)
The person from whom the sample was taken may,
within 12 months after the taking of the sample, apply to the laboratory
prescribed under this section for a portion of the sample to be sent, for
analysis at that person’s own expense, to a medical practitioner or
laboratory nominated by the person.
(5A)
A police officer may make the arrangements
referred to in subsection (4). The making of such arrangements under this
subsection operates to discharge the duty provided for in subsection (4) to
make those arrangements.
(6)
An analyst at the laboratory to which a sample of
blood is submitted for analysis under this section may carry out an analysis
of the sample, or of a portion of the sample, to determine the concentration
of alcohol (and, where required, of other drugs) in the
blood.
(7)
An analysis referred to in subsection (6) may be
carried out, and any act, matter or thing in connection with the analysis
(including the receipt of the sample of blood to be analysed and the breaking
of any seal securing the sample) may be done, by a person acting under the
supervision of an analyst, and in that event is taken to have been carried out
or done by the analyst.
s 18: Am 2000 No 78,
Sch 1 [1] [2]; 2009 No 106, Sch 1.17 [1]–[4].
Division 5Sobriety assessments and
related drug analysis
25Police officer may require
sobriety assessment
(cf Traffic Act, s 5AA (1) and (2))
(1)
A police officer may require a person to submit
to an assessment of his or her sobriety in accordance with the directions of
the officer if:
(a)
the person has undergone a breath test in
accordance with Division 3, and
(b)
the result of the test does not permit the person
to be required to submit to a breath analysis.
(2)
A person cannot be required to submit to a
sobriety assessment unless:
(a)
a police officer has a reasonable belief that, by
the way in which the person:
(i)
is or was driving a motor vehicle on a road or
road related area, or
(ii)
is or was occupying the driving seat of a motor
vehicle on a road or road related area and attempting to put the vehicle in
motion,
the person may be under the influence of a drug,
and
(b)
the assessment is carried out by a police officer
at or near the place where the person underwent the breath
test.
26Arrest following failure to
submit to (or pass) sobriety assessment
(cf Traffic Act, s 5AA (3))
If the person refuses to submit to a sobriety
assessment under this Division or, after the assessment has been made, a
police officer has a reasonable belief that the person is under the influence
of a drug, the police officer may:
(a)
arrest that person without warrant,
and
(b)
take the person (or cause the person to be taken)
with such force as may be necessary to a hospital or a place prescribed by the
regulations and there detain the person (or cause the person to be detained)
for the purposes of this Division.
27Procedure for taking samples
following arrest
(cf Traffic Act, s 5AA (4) and
(6)–(10))
(1)
Except as provided by section 28, a police
officer may require a person who has been arrested under section 26 to provide
samples of the person’s blood and urine (whether or not the person
consents to them being taken) in accordance with the directions of a medical
practitioner, registered nurse or prescribed sample
taker.
(2)
The police officer must inform any such medical
practitioner, registered nurse or prescribed sample taker that the samples are
required to be taken for the purposes of this Division.
(2A)
The medical practitioner, registered nurse or
prescribed sample taker by whom or under whose directions a sample of blood is
taken in accordance with this Division must:
(a)
place the sample into a container,
and
(b)
fasten and seal the container,
and
(c)
mark or label the container for future
identification, and
(d)
give to the person from whom the sample is taken
a certificate relating to the sample that contains sufficient information to
enable the sample to be identified as a sample of that person’s
blood.
Maximum penalty: 20 penalty
units.
(2B)
The medical practitioner, registered nurse or
prescribed sample taker must, as soon as reasonably practicable after the
sample of blood is taken, arrange for the sample to be submitted to a
laboratory prescribed by the regulations for analysis by an analyst to
determine whether the blood contains a drug.
Maximum penalty: 20 penalty
units.
(2C)
The person from whom the sample of blood was
taken may, within 12 months after the taking of the sample, apply to the
laboratory prescribed under this section for a portion of the sample to be
sent, for analysis at that person’s own expense, to a medical
practitioner or laboratory nominated by the person.
(2D)
A police officer may make the arrangements
referred to in subsection (2B). The making of such arrangements under this
subsection operates to discharge the duty referred to in subsection (2B) to
make those arrangements.
(3)
The medical practitioner, registered nurse or
prescribed sample taker by whom or under whose directions a sample of urine is
taken in accordance with this Division must:
(a)
divide the sample into 2 approximately equal
portions, and
(b)
place each portion into a container,
and
(c)
fasten and seal each container,
and
(d)
mark or label each container for future
identification.
(4)
Of the 2 sealed containers:
(a)
one must be handed by the medical practitioner,
registered nurse or prescribed sample taker to the person from whom it was
taken or to some other person on behalf of that person,
and
(b)
the other must be handed by the practitioner,
nurse or prescribed sample taker to the police officer present when the sample
was taken and forwarded to a laboratory prescribed by the regulations for
analysis by an analyst to determine whether the urine contains a
drug.
(5)
An analyst at a laboratory prescribed by the
regulations to whom any blood or urine is submitted for analysis under this
section may carry out an analysis of the blood or urine to determine whether
it contains a drug.
(6)
Any duty of a medical practitioner, registered
nurse or prescribed sample taker under this Division and any relevant
provisions of the regulations may be performed by a person acting under the
supervision of the medical practitioner, registered nurse or prescribed sample
taker. A duty performed by any such person is taken to have been performed by
the medical practitioner, registered nurse or prescribed sample
taker.
(7)
An analysis under this section may be carried
out, and anything in connection with the analysis (including the receipt of
the blood or urine to be analysed and the breaking of any seal) may be done,
by a person acting under the supervision of an analyst and, in that event, is
taken to have been carried out or done by the analyst.
s 27: Am 2000 No 78,
Sch 1 [6]–[8]; 2006 No 79, Sch 1 [7] [8]; 2009 No 106, Sch 1.17
[7].
28When sobriety assessment and
taking of samples not permitted
(cf Traffic Act, s 5AA (5))
A police officer cannot require a person to
submit to a sobriety assessment or to provide a sample under this
Division:
(a)
if the person has been admitted to hospital for
medical treatment, unless the medical practitioner in immediate charge of the
person’s treatment has been notified of the intention to make the
requirement and the medical practitioner does not object on the grounds that
compliance would be prejudicial to the proper care and treatment of the
person, or
(b)
if it appears to that officer that it would,
because of the person’s injuries, be dangerous to the person’s
medical condition to submit to the assessment or provide the sample,
or
(c)
at any time after the expiration of 4 hours from
the occurrence of the event referred to in section 25 (2) (a) (i) or (ii)
because of which the officer was entitled to require the person to submit to
the assessment or provide the sample, or
(d)
at the person’s
home.
s 28: Am 2006 No 79,
Sch 1 [9].
29Offences related to sobriety
assessments and testing for drugs
(cf Traffic Act, s 5AC (1)–(4) and
(6)–(8))
(1)
A person must not, when required by a police
officer to submit to an assessment under section 25, refuse or fail to submit
to the assessment in accordance with the directions of the police
officer.
Maximum penalty: 10 penalty
units.
(2)
A person must not:
(a)
on being required under this Division by a police
officer to provide samples of blood or urine:
(i)
refuse or fail to submit to the taking of the
sample of blood, or
(ii)
refuse or fail to provide the sample of
urine,
in accordance with the directions of a medical
practitioner, registered nurse or prescribed sample taker,
or
(b)
wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine between the time of the
event referred to in section 25 (2) (a) (i) or (ii) in respect of which the
person has been required by a police officer to submit to an assessment and
the time when the person undergoes that assessment, or
(c)
wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine between the time of the
event referred to in section 25 (2) (a) (i) or (ii) in respect of which the
person has been required by a police officer to submit to an assessment and
the time when the person provides a sample that the person is required to
provide under this Division.
Maximum penalty: 30 penalty units or imprisonment
for 18 months or both (in the case of a first offence) or 50 penalty units or
imprisonment for 2 years or both (in the case of a second or subsequent
offence).
(3)
It is a defence to a prosecution for an offence
under subsection (1) or (2) (a) if the defendant satisfies the court that the
defendant was unable on medical grounds, when the defendant was required to do
so, to submit to an assessment or to provide a sample.
(4)
It is a defence to a prosecution of a person for
an offence under subsection (2) (b) of wilfully doing anything to introduce,
or alter the amount of, a drug in the person’s blood or urine if the
person satisfies the court that the thing was done more than 4 hours after the
time of the event referred to in section 25 (2) (a) (i) or
(ii).
(5)
If a medical practitioner, registered nurse or
prescribed sample taker is informed by a police officer in accordance with
this Division that a sample is required to be taken for the purposes of this
Division, the medical practitioner, registered nurse or prescribed sample
taker must not:
(a)
fail to take the sample, or
(b)
fail to comply with any requirement made by
section 27 (3) or (4) in relation to the sample.
Maximum penalty: 20 penalty
units.
(6)
It is a defence to a prosecution for an offence
under subsection (5) if the medical practitioner, registered nurse or
prescribed sample taker satisfies the court that:
(a)
the practitioner, nurse or prescribed sample
taker believed on reasonable grounds that the taking of the sample from the
person would be prejudicial to the proper care and treatment of the person,
or
(b)
the practitioner, nurse or prescribed sample
taker did not believe that the person was of or above the age of 15 years and
it was reasonable for the practitioner, nurse or prescribed sample taker not
to have so believed, or
(c)
the practitioner, nurse or prescribed sample
taker was, because of the behaviour of the person, unable to take the sample,
or
(d)
there was other reasonable cause for the
practitioner, nurse or prescribed sample taker not to take the
sample.
(7)
A person must not hinder or obstruct a medical
practitioner, registered nurse or prescribed sample taker in attempting to
take a sample of the blood or urine of any other person in accordance with
this Division.
Maximum penalty: 20 penalty
units.
s 29: Am 2006 No 79,
Sch 1 [7] [8] [10].
Division 7Evidentiary and other
procedural matters
32Evidence of alcohol
concentration revealed by breath or blood analysis in proceedings for offence
under section 9
(cf Traffic Act, ss 4E (11) and 4G
(8))
(1)
In proceedings for an offence under section 9,
evidence may be given of the concentration of alcohol present in the breath or
blood of the person charged as determined by:
(a)
a breath analysing instrument operated by a
police officer authorised to do so by the Commissioner of Police,
or
(b)
an analysis of the person’s blood under
this Part.
(2)
In proceedings for an offence under section 9,
the concentration of alcohol so determined is taken to be the concentration of
alcohol in the person’s breath or blood at the time of the occurrence of
the relevant event referred to in section 13 (1) (a), (b) or (c) if the breath
analysis was made, or blood sample taken, within 2 hours after the event
unless the defendant proves that the concentration of alcohol in the
defendant’s breath or blood at the time concerned was:
(a1)
in the case of an offence under section 9
(1A)—zero grammes of alcohol in 210 litres of breath or 100 millilitres
of blood, or
(a)
in the case of an offence under section 9
(1)—less than 0.02 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(b)
in the case of an offence under section 9
(2)—less than 0.05 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(c)
in the case of an offence under section 9
(3)—less than 0.08 grammes of alcohol in 210 litres of breath or 100
millilitres of blood, or
(d)
in the case of an offence under section 9
(4)—less than 0.15 grammes of alcohol in 210 litres of breath or 100
millilitres of blood.
(3)
Nothing in subsection (2) affects the operation
of section 10.
s 32: Am 2004 No 17,
Sch 1 [10]; 2004 No 55, Sch 1.32 [2]; 2007 No 99, Sch 1
[10]–[12].
33Certificate evidence about
breath or blood analysis in proceedings for offences under section
9
(cf Traffic Act, ss 4E (12) and 4G
(9)–(11A))
(1)
In proceedings for an offence under section 9 a
certificate purporting to be signed by a police officer certifying
that:
(a)
the officer is authorised by the Commissioner of
Police to operate breath analysing instruments, and
(b)
a person named in the certificate submitted to a
breath analysis, and
(c)
the apparatus used by the officer to make the
breath analysis was a breath analysing instrument within the meaning of this
Act, and
(d)
the analysis was made on the day and completed at
the time stated in the certificate, and
(e)
a concentration of alcohol determined by that
breath analysing instrument and expressed in grammes of alcohol in 210 litres
of breath or 100 millilitres of blood was present in the breath or blood of
that person on the day and at the time stated in the certificate,
and
(f)
a statement in writing required by section 15 (3)
was delivered in accordance with that subsection,
is admissible and is prima facie evidence of the
particulars certified in and by the certificate.
(2)
In proceedings for an offence under section 9 or
Division 3 a certificate purporting to be signed by the Commissioner of Police
that the police officer named in the certificate is authorised by the
Commissioner of Police to operate breath analysing instruments is admissible
and is prima facie evidence of the particulars certified in and by the
certificate.
(3)
In proceedings for an offence under section 9 or
Division 3, evidence of the condition of a breath analysing instrument, or of
the manner in which it was operated, is not required unless evidence
sufficient to raise doubt that the instrument was in proper condition and
properly operated has been adduced.
(4)
In proceedings for an offence under section 9 a
certificate purporting to be signed by a medical practitioner or nurse
certifying any one or more of the following matters is admissible and is prima
facie evidence of the particulars certified in and by the certificate:
(a)
that he or she was a medical practitioner or
nurse who attended a specified person who attended at or was admitted into a
hospital as referred to in section 20,
(b)
that he or she took a sample of the
person’s blood in accordance with Division 4, and any relevant
provisions of the regulations, on the day and at the time stated in the
certificate,
(c)
that he or she dealt with the sample in
accordance with section 23 (1) and any relevant provisions of the
regulations,
(d)
that he or she used equipment of a specified
description in so taking and dealing with the sample,
(e)
that the container was sealed, and marked or
labelled, in a specified manner.
(5)
In proceedings for an offence under section 9, a
certificate purporting to be signed by a police officer certifying any one or
more of the following matters is admissible and is prima facie evidence of the
particulars certified in and by the certificate:
(a)
that the officer received a sample of a specified
person’s blood taken in accordance with Division 4,
(b)
that the officer arranged for the sample to be
submitted for analysis by an analyst to determine the concentration of alcohol
in the blood,
(c)
that the container was sealed, and marked or
labelled, in a specified manner.
(6)
In proceedings for an offence under section 9, a
certificate purporting to be signed by an analyst certifying any one or more
of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s blood in a container submitted for
analysis under this Part,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
sample to determine the concentration of alcohol in the
sample,
(e)
that the concentration of alcohol determined
pursuant to the analysis and expressed in grammes of alcohol in 100
millilitres of blood was present in that sample,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
is admissible and is prima facie evidence:
(g)
of the particulars certified in and by the
certificate, and
(h)
that the sample was a sample of the blood of that
specified person, and
(i)
that the sample had not been tampered with before
it was received by the analyst.
(7)
In proceedings for an offence under section 9, a
certificate purporting to be signed by a person who, in another State or
Territory:
(a)
took a blood sample, or
(b)
analysed a blood
sample,
in accordance with provisions of a law of that State or
Territory that substantially correspond to the provisions of Division 4 is
admissible and is prima facie evidence of the particulars certified in and by
the certificate, and an analysis to which any such certificate relates is
taken to be an analysis under Division 4.
s 33: Am 2000 No 78,
Sch 1 [9]–[13]; 2004 No 55, Sch 1.32 [3]; 2006 No 110, Sch 2 [1] [2];
2006 No 120, Sch 2.80; 2007 No 99, Sch 1 [13].
33AEvidence of presence of
prescribed illicit drug revealed by oral fluid analysis in proceedings for
offence under section 11B
(1)
In proceedings for an offence under section 11B
in relation to a prescribed illicit drug, evidence may be given of the
presence of a prescribed illicit drug in the oral fluid of the person charged
as determined by an oral fluid analysis under Division 3A of a sample of the
person’s oral fluid.
(2)
In proceedings for an offence under section 11B,
the presence of a prescribed illicit drug in a person’s oral fluid so
determined is taken to show the presence of the drug at the time of the
occurrence of the relevant event referred to in section 11B (1) (a), (b) or
(c) if the oral fluid sample analysed was provided within 2 hours after the
event, unless the defendant proves the absence of the drug when the event
occurred.
s 33A: Ins 2006 No
79, Sch 1 [11].
33BCertificate evidence about
oral fluid analysis in proceedings for offences under section
11B
(1)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by a police officer certifying any one
or more of the following matters is admissible and is prima facie evidence of
the particulars certified in and by the certificate:
(a)
that the officer took a sample of the oral fluid
of the person named in the certificate in accordance with Division 3A, and any
relevant provisions of the regulations, on the day and at the time stated in
the certificate,
(b)
that the officer dealt with the sample in
accordance with section 18D and any relevant provisions of the
regulations,
(c)
that the container was sealed, and marked or
labelled, in a specified manner,
(d)
that the officer arranged for the sample to be
submitted for oral fluid analysis to determine the presence of any prescribed
illicit drugs in the oral fluid.
(2)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by an analyst certifying any one or more
of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s oral fluid in a container submitted for
analysis under this Part,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an oral fluid
analysis of the sample to determine the presence of any prescribed illicit
drugs in the sample,
(e)
that a specified prescribed illicit drug was
determined pursuant to the oral fluid analysis to be present in that
sample,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
is admissible and is prima facie evidence:
(g)
of the particulars certified in and by the
certificate, and
(h)
that the sample was the sample of the oral fluid
of that specified person, and
(i)
that the sample had not been tampered with before
it was received by the analyst.
(3)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by a person who, in another State or
Territory:
(a)
took an oral fluid sample, or
(b)
analysed an oral fluid
sample,
in accordance with provisions of a law of that State or
Territory that substantially correspond to the provisions of Division 3A is
admissible and is prima facie evidence of the particulars certified in and by
the certificate, and an analysis to which any such certificate relates is
taken to be an analysis under that Division.
s 33B: Ins 2006 No
79, Sch 1 [11]. Am 2006 No 110, Sch 2 [3].
33CEvidence of presence of drug
revealed by blood or urine analysis in proceedings for offence under section
11B
(1)
In proceedings for an offence under section 11B,
evidence may be given of the presence of a prescribed illicit drug, morphine
or cocaine in the blood or urine of the person charged as determined by an
analysis of the person’s blood or urine under this
Part.
(2)
In proceedings for an offence under section 11B,
if such an analysis determines the presence of a prescribed illicit drug,
morphine or cocaine in the person’s blood or urine, that drug is taken
to be so present at the time of the occurrence of the relevant event referred
to in section 11B (1) (a), (b) or (c) or (3) (a), (b) or (c) if the blood or
urine sample was taken within 4 hours after the event, unless the defendant
proves the absence of the drug when the event occurred.
s 33C: Ins 2006 No
79, Sch 1 [11].
33DCertificate evidence about
blood or urine analysis in proceedings for offences under section
11B
(1)
In proceedings for an offence under section 11B a
certificate purporting to be signed by a medical practitioner, registered
nurse or prescribed sample taker certifying any one or more of the following
matters is admissible and is prima facie evidence of the particulars certified
in and by the certificate:
(a)
that he or she was a medical practitioner,
registered nurse or prescribed sample taker who attended a specified person
who attended at or was admitted into a hospital or a place prescribed by the
regulations as referred to in Division 3A, 4, 4A or 5,
(b)
that he or she took a sample of the
person’s blood or urine in accordance with Division 3A, 4, 4A or 5, and
any relevant provisions of the regulations, on the day and at the time stated
in the certificate,
(c)
that he or she dealt with the sample in
accordance with Division 3A, 4, 4A or 5 and any relevant provisions of the
regulations,
(d)
that the container was sealed, and marked or
labelled, in a specified manner.
(2)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by a police officer certifying any one
or more of the following matters is admissible and is prima facie evidence of
the particulars certified in and by the certificate:
(a)
that the officer received a sample of a specified
person’s blood or urine taken in accordance with Division 3A, 4, 4A or
5,
(b)
that the officer arranged for the sample to be
submitted for analysis by an analyst to determine whether any drug was present
in the sample,
(c)
that the container was sealed, and marked or
labelled, in a specified manner.
(3)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by an analyst certifying any one or more
of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s blood or urine in a container submitted
for analysis under this Part,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
sample to determine the presence of the following in the sample,
(i)
any prescribed illicit drug,
(ii)
any prescribed illicit drug, morphine or
cocaine,
(e)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
is admissible and is prima facie evidence:
(f)
of the particulars certified in and by the
certificate, and
(g)
that the sample was a sample of the blood or
urine of that specified person, and
(h)
that the sample had not been tampered with before
it was received by the analyst.
(4)
In proceedings for an offence under section 11B,
a certificate purporting to be signed by a person who, in another State or
Territory:
(a)
took a blood or urine sample,
or
(b)
analysed a blood or urine
sample,
in accordance with provisions of a law of that State or
Territory that substantially correspond to the provisions of Division 3A, 4,
4A or 5 is admissible and is prima facie evidence of the particulars certified
in and by the certificate, and an analysis to which any such certificate
relates is taken to be an analysis under those
Divisions.
s 33D: Ins 2006 No
79, Sch 1 [11]. Am 2006 No 110, Sch 2 [3].
34Evidence of drugs revealed by
blood or urine analysis in proceedings for offence under section
12
(cf Traffic Act s 5AB (1))
In proceedings for an offence under section 12
(1):
(a)
evidence may be given of:
(i)
the presence of a drug, or
(ii)
the presence of a particular concentration of a
drug,
in the blood or urine of the person charged, as
determined pursuant to an analysis under Division 3A, 4, 4A or 5 of a sample
of the person’s blood or urine, and
(b)
the drug the presence of which is so determined
or the particular concentration of the drug the presence of which is so
determined, as the case may be, is to be taken to have been present in the
blood or urine of that person when the event referred to in section 12 (1) (a)
or (b) (as the case may be) occurred,
if the sample was taken within 4 hours after the event,
unless the defendant proves the absence of the drug, or the presence of the
drug in a different concentration, when the event occurred.
s 34: Am 2000 No 78,
Sch 1 [14]; 2006 No 79, Sch 1 [12] [13].
35Certificate evidence about
blood or urine analysis in proceedings for offences under section
12
(cf Traffic Act, s 5AB
(2)–(4A))
(1)
In proceedings for an offence under section 12
(1), a certificate purporting to be signed by a medical practitioner, nurse or
prescribed sample taker certifying any one or more of the following matters is
admissible and is prima facie evidence of the particulars certified in and by
the certificate:
(a)
that the medical practitioner, nurse or
prescribed sample taker was a medical medical practitioner, nurse or
prescribed sample taker who attended a specified person who attended at or was
admitted into a hospital or a place prescribed by the regulations as referred
to in Division 3A, 4, 4A or 5,
(b)
that the medical practitioner, nurse or
prescribed sample taker took a sample of the person’s blood or urine in
accordance with Division 3A, 4, 4A or 5 and any relevant provisions of the
regulations, on the day and at the time stated in the
certificate,
(c)
that the medical practitioner, nurse or
prescribed sample taker dealt with the sample in accordance with Division 3A,
4, 4A or 5 and any relevant provisions of the regulations,
(d)
that the container was sealed, and marked or
labelled, in a specified manner.
(2)
In proceedings for an offence under section 12
(1), a certificate purporting to be signed by a police officer certifying any
one or more of the following matters is admissible and is prima facie evidence
of the particulars certified in and by the certificate:
(a)
that the officer received a sample of a specified
person’s blood or urine taken in accordance with Division 3A, 4, 4A or
5,
(b)
that the officer arranged for the sample to be
submitted for analysis by an analyst to determine whether any drug was present
in the sample,
(c)
that the container was sealed, and marked or
labelled, in a specified manner.
(3)
In proceedings for an offence under section 12
(1), a certificate purporting to be signed by an analyst certifying any one or
more of the following matters:
(a)
that the analyst received, on a specified day, a
sample of a specified person’s blood or urine in a container submitted
for analysis under Division 3A, 4, 4A or 5,
(b)
that the container, as received by the analyst,
was sealed, and marked or labelled, in a specified manner,
(c)
that on receipt by the analyst of the container,
the seal was unbroken,
(d)
that the analyst carried out an analysis of the
sample to determine whether any drug was present in the
sample,
(e)
that a specified drug ascertained pursuant to the
analysis was present in that sample and, if so certified, was present in that
sample in a specified concentration,
(f)
that the analyst was, at the time of the
analysis, an analyst within the meaning of this
Act,
is admissible and is prima facie evidence:
(g)
of the particulars certified in and by the
certificate, and
(h)
that the sample was a sample of the blood or
urine of that specified person, and
(i)
that the sample had not been tampered with before
it was received by the analyst.
(4)
Subsections (1)–(3):
(a)
do not apply to proceedings brought on a charge
that, by the operation of section 38 (4), cannot be laid,
and
(b)
do not enable evidence to be given of or in
relation to:
(i)
the presence of a drug other than alcohol,
or
(ii)
the presence of a particular concentration of a
drug other than alcohol,
in the blood of a person charged with an offence under
section 12 (1), as determined by an analysis under Division 4, unless the
court is satisfied that the analysis was not arranged in contravention of
section 23 (6).
s 35: Am 2000 No 78,
Sch 1 [15]–[19]; 2006 No 79, Sch 1 [14] [15]; 2006 No 110, Sch 2
[1].
36Certificate evidence may
specify minimum concentrations
(cf Traffic Act, s 17C)
If, in any proceedings in which evidence is
permitted to be given of the results of an analysis, undertaken for the
purposes of this Act, of a sample of a person’s blood or urine, evidence
is given by a certificate under this Act to the effect that alcohol or another
specified drug was found by the analysis to be present in the sample in a
concentration not less than a specified concentration:
(a)
the certificate is to be treated as though it
stated that the concentration of alcohol or of the other drug concerned was
determined by the analysis to be present in the specified minimum
concentration, and
(b)
the evidence given by the certificate is not open
to challenge on the basis that the analysis, merely because it purports to
determine a concentration in terms of a minimum, does not meet the
requirements of this Act.
37Evidence of breath test,
breath analysis, oral fluid test, oral fluid analysis or blood or urine
analysis and related facts not admissible in insurance cases to prove
intoxication or drug use
(cf Traffic Act, ss 4E (13), 4G (12) and (13) and
5AB (5) and (6))
(1)
For the purposes of any contract of insurance,
any of the following facts are not admissible as evidence of the fact that a
person was at any time under the influence of or in any way affected by
intoxicating liquor or incapable of driving or of exercising effective control
over a motor vehicle:
(a)
the fact that a person has undergone a breath
test or submitted to a breath analysis under Division 3,
(b)
the result of a breath test or breath
analysis,
(b1)
the fact that a person has undergone an oral
fluid test or provided a sample for oral fluid analysis under Division
3A,
(b2)
the result of an oral fluid test or oral fluid
analysis,
(c)
the fact that a person has been convicted of an
offence under section 9, 11B (1) or (3), 13 (2), 15 (4), 16, 18B (2), 18D (2),
18E (9) or 18G (1).
(2)
For the purposes of any contract of insurance,
the results of any analysis of blood or urine under Division 3A, 4, 4A or 5
are not admissible as evidence of the fact that a person was at any time under
the influence of or in any way affected by intoxicating liquor or other drug
or incapable of driving or of exercising effective control over a vehicle or
horse.
(3)
Nothing in subsection (1) or (2) precludes the
admission of any other evidence to show a fact referred in the
subsection.
(4)
The provisions of this section have effect
despite anything contained in any contract of insurance.
(5)
Any covenant, term, condition or provision in any
contract of insurance is void:
(a)
to the extent that the operation of this section
is excluded, limited, modified or restricted, or
(b)
to the extent that it purports to exclude or
limit the liability of the insurer in the event of any person being convicted
of an offence under section 9, 11B (1) or (3) or Division 3 or
3A.
(6)
However, nothing in subsection (5) precludes the
inclusion in a contract of insurance of any other covenant, term, condition or
provision under which the liability of the insurer is excluded or
limited.
s 37: Am 2006 No 79,
Sch 1 [16]–[19].
38Double jeopardy in relation to
alcohol and other drug offences
(cf Traffic Act, ss 4E (14) and (15), 4F (9) and
(10) and 5AC (5))
(1)
If a person has been convicted of an offence
under section 15 (4), 16, 18D (2), 18E (9), 18G (1), 22 (2), 24D (1) and (6)
or 29 (2), the person is not liable to be convicted of an offence under
section 12 (1) if the offence for which the person has been convicted and the
other offence arose directly or indirectly out of the same
circumstances.
(2)
If a person has been convicted of an offence
under section 12 (1), the person is not liable to be convicted of an offence
under section 15 (4), 16, 18D (2), 18E (9), 18G (1), 22 (2), 24D (1) and (6)
or 29 (2) if the offence for which the person has been convicted and the other
offence arose directly or indirectly out of the same
circumstances.
(3)
If, by reason of the occurrence of an event
referred to in section 13 (1) (a), (b) or (c), a person is required by a
police officer to undergo a breath test and as a consequence of that test to
submit to a breath analysis and the person submits to the breath analysis in
accordance with the directions of a police officer, the person cannot be
charged with an offence under section 12 (1) of:
(a)
driving a motor vehicle, at the time of that
event, while the person was under the influence of intoxicating liquor,
or
(b)
occupying the driving seat of a motor vehicle and
attempting to put such motor vehicle in motion, at the time of that event,
while the person was under the influence of intoxicating
liquor.
(3A)
If a person has been convicted of an offence
under section 11B, the person is not liable to be convicted of an offence
under section 12 (1) if the offence for which the person has been convicted
and the other offence arose directly or indirectly out of the same
circumstances.
(3B)
If a person has been convicted of an offence
under section 12 (1), the person is not liable to be convicted of an offence
under section 11B if the offence for which the person has been convicted and
the other offence arose directly or indirectly out of the same
circumstances.
(4)
A person who has had a sample of blood taken in
accordance with Division 4 because of an accident is not to be charged with an
offence under section 12 (1) if it is alleged as a component of the offence
that the person was under the influence of alcohol and the offence relates to
the same accident.
s 38: Am 2006 No 79,
Sch 1 [20] [21].