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Contents (2002 - 103)
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Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 23 March 2020 to date (accessed 10 April 2020 at 07:26)
Part 10 Division 4
Division 4 Testing of certain offenders for intoxication
138D   Persons to whom Division applies and purpose of exercise of powers
(1)  This Division applies to a person who has been arrested by a police officer—
(a)  for an alleged offence under section 25A(2) of the Crimes Act 1900, or
(b)  for any other offence that involves the assault of another person if the police officer believes that the person would be liable to be charged with an offence under section 25A(2) of the Crimes Act 1900 if the other person dies.
(2)  A police officer may exercise the powers conferred by this Division for the purpose of confirming whether the person had consumed or taken alcohol, a drug or other intoxicating substance before the alleged offence and the likely amount consumed or taken.
138E   Definitions
In this Division, breath test, breath analysis and other words and expressions used in this Division and in Schedule 3 to the Road Transport Act 2013 have the same meanings as they have in that Schedule.
138F   Breath testing and breath analysis for presence of alcohol
(1)  A police officer may require a person to whom this Division applies to undertake a breath test, either at or near the scene of the alleged offence or at a police station or other place at which the person is detained in connection with the alleged offence.
(2)  A police officer may require a person to whom this Division applies to undertake a breath analysis at a police station or other place at which the person is detained in connection with the alleged offence.
(3)  A breath test or breath analysis may only be required to be undertaken under this section within 2 hours after the commission of the alleged offence.
(4)  The following provisions of Schedule 3 to the Road Transport Act 2013 apply in relation to a breath test or breath analysis under this section (with any necessary or prescribed modifications)—
(a)  the police officers authorised to carry out a breath analysis,
(b)  the provision of a statement to the person undertaking the breath analysis as to the concentration of alcohol determined by the analysis,
(c)  the issue of evidentiary certificates relating to the breath analysis,
(d)  any other provisions prescribed by the regulations.
(5)  Evidence of the presence or concentration of any alcohol in an accused’s breath as determined by a breath analysis carried out in accordance with this section may be used only in proceedings for an offence under section 25A(2) of the Crimes Act 1900.
138G   Blood and urine samples for analysis for presence of alcohol or drugs
(1)  A police officer may require a person to whom this Division applies to provide samples of the person’s blood and urine (taken by an authorised sample taker) at a police station or other place at which the person is detained in connection with the alleged offence.
(2)  A blood or urine sample may only be required to be provided under this section if the person has refused to undertake (or cannot be required to undertake) a breath analysis pursuant to a requirement under section 138F or if the police officer has a reasonable belief that the person is under the influence of a substance other than alcohol. The person may also request that blood or urine samples be taken under this section if the person has undertaken such a breath analysis.
(3)  A blood or urine sample may only be required to be provided under this section within 4 hours after the commission of the alleged offence.
(4)  A person may be taken to and detained at a hospital for the purpose of the taking of a blood or urine sample required to be provided under this section.
(5)  The following provisions of Schedule 3 to the Road Transport Act 2013 apply in relation to blood or urine samples taken under this section (with any necessary or prescribed modifications)—
(a)  the procedures for taking the blood or urine samples,
(b)  the procedures for analysing the blood or urine samples (including the independent analysis of a portion of a blood or urine sample at the request of the person providing the sample),
(c)  offences relating to sample handling and the use of samples,
(d)  the issue of evidentiary certificates relating to the blood or urine samples and their analysis,
(e)  the protection from liability of authorised sample takers in relation to the taking of blood or urine samples,
(f)  any other provisions prescribed by the regulations.
(6)  Evidence of the presence or concentration of any alcohol, drug or other substance in an accused’s blood or urine as determined by an analysis carried out in accordance with this section may be used only in proceedings for an offence under section 25A(2) of the Crimes Act 1900.
138H   Offences relating to testing
(1)  A person who refuses to provide a blood or urine sample pursuant to a requirement under section 138G is guilty of an offence.
Maximum penalty—50 penalty units or imprisonment for 2 years, or both.
(2)  It is a defence to a prosecution for an offence under subsection (1) if the person was unable on medical grounds to comply with the requirement.
(3)  A person who commits an offence under the provisions of Schedule 3 to the Road Transport Act 2013 that are applied by this Division is taken to be guilty of an offence under this Division.