Road Safety (Alcohol and Drugs) Act 1970

Road Safety (Alcohol and Drugs) Act 1970

[The long title Substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] An Act to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs; and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title and commencement

(1)  This Act may be cited as the Road Safety (Alcohol and Drugs) Act 1970 .

(2)  This Act shall commence on a date to be fixed by proclamation.

2.   Interpretation

[Section 2 Amended by No. 18 of 1974, s. 2 ][Section 2 Amended by No. 94 of 1975, s. 2 ][Section 2 Amended by No. 91 of 1982, s. 3 ][Section 2 Subsection (1) amended by No. 100 of 1995, s. 97 and Sched. 7 ]

(1)  [Section 2 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018]

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] approved analyst means a person appointed as an approved analyst under section 3 ;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] approved operator has the meaning assigned to that expression by section 3(5) ;

[Section 2 Subsection (1) amended by No. 28 of 2005, s. 6, Applied:01 Feb 2006] [Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] breath analysing instrument means any apparatus that is designed for ascertaining, by analysis of a person's breath, the concentration of alcohol present in his breath (being apparatus of a type approved by the Minister by notice in the Gazette);

[Section 2 Subsection (1) amended by No. 28 of 2005, s. 6, Applied:01 Feb 2006] breath analysis means a procedure carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of a person's breath, the concentration of alcohol present in his breath;

[Section 2 Subsection (1) amended by No. 28 of 2005, s. 6, Applied:01 Feb 2006] [Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] breath test means a test for the purpose of indicating the concentration of alcohol present in a person's breath or blood, carried out on that person's breath by means of a device (not being a breath analysing instrument) of a type approved for the purposes of such a test by the Minister by notice in the Gazette;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] crash has the same meaning as in the Road Rules;

[Section 2 Subsection (1) amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ;

[Section 2 Subsection (1) amended by No. 68 of 2007, s. 4, Applied:19 Dec 2007] [Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018]

[Section 2 Subsection (1) amended by No. 38 of 2010, s. 4, Applied:14 Dec 2010] GVM has the same meaning as in the Vehicle and Traffic Act 1999 ;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] oral fluid analysis means –

(a) a procedure carried out, by means of a device of a type approved for the purposes of such an analysis by the Minister by notice in the Gazette; or

(b) such other procedure as is prescribed –

for the purpose of ascertaining, by analysis of a person's oral fluid, whether a prescribed illicit drug is present in that fluid;

[Section 2 Subsection (1) amended by No. 18 of 2005, s. 4, Applied:01 Jul 2005] [Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] oral fluid test means a test, for the purpose of indicating whether a prescribed illicit drug is present in a person's oral fluid, carried out on that person's oral fluid by means of a device of a type approved for the purposes of such a test by the Minister by notice in the Gazette;

[Section 2 Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 2 Subsection (1) amended by No. 28 of 2005, s. 6, Applied:01 Feb 2006]

[Section 2 Subsection (1) amended by No. 28 of 2005, s. 6, Applied:01 Feb 2006] prescribed concentration means a concentration of 0·05 of a gram of alcohol in 210 litres of breath or a concentration of 0·05 of a gram of alcohol in 100 millilitres of blood;

[Section 2 Subsection (1) amended by No. 18 of 2005, s. 4, Applied:01 Jul 2005] prescribed illicit drug means a drug prescribed in the regulations as an illicit drug;

[Section 2 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]

[Section 2 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] qualified nurse means a registered nurse or an enrolled nurse;

[Section 2 Subsection (1) amended by No. 9 of 2008, s. 4, Applied:04 Jun 2008] [Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018]

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] qualified person includes –

(a) a medical practitioner and a qualified nurse; and

(b) a person who holds a qualification, or has the experience, prescribed for the purposes of this definition; and

(c) any other person, or class of persons, as is prescribed;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] relevant time – see section 2A ;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] road safety disqualification notice means a notice given in respect of an offence committed in the circumstances set out in section 18B(1) ;

[Section 2 Subsection (1) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] supervision, of an action, includes the direct or indirect supervision of that action and does not require the person who is supervising the action to be at the location while the action is being performed;

[Section 2 Subsection (1) amended by No. 9 of 2008, s. 4, Applied:04 Jun 2008] trace particle detection test means a test for the purpose of detecting traces of a prescribed illicit drug carried out by means of a device approved for the purpose of such a test by the Minister by notice in the Gazette.

(2)  [Section 2 Subsection (2) amended by No. 68 of 1997, s. 4, Applied:01 Mar 1998] [Section 2 Subsection (2) amended by No. 44 of 1991, s. 4 ][Section 2 Subsection (2) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] In this Act –

Australian driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

foreign driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

[Section 2 Subsection (2) amended by No. 68 of 2007, s. 4, Applied:19 Dec 2007] full licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

international driving permit has the same meaning as in the Vehicle and Traffic Act 1999 ;

learner licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

[Section 2 Subsection (2) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]

motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ;

provisional licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

public street has the same meaning as in the Traffic Act 1925 ;

restricted driver licence has the same meaning as in the Vehicle and Traffic Act 1999 ;

vehicle has the same meaning as in the Traffic Act 1925 .

(2A)  [Section 2 Subsection (2A) inserted by No. 44 of 1991, s. 4 ][Section 2 Subsection (2A) amended by No. 68 of 1997, s. 4, Applied:01 Mar 1998] [Section 2 Subsection (2A) substituted by No. 53 of 1997, Sched. 1, Applied:26 Jun 2000] In this Act, prescribed vehicle means –

(a) [Section 2 Subsection (2A) amended by No. 60 of 2011, Sched. 1, Applied:01 Jul 2013] a motor vehicle that is being used to operate a passenger transport service within the meaning of the Passenger Transport Services Act 2011 ; or

(b) a vehicle, other than a vehicle referred to in paragraph (a) , that is designed and constructed primarily for the carriage of 13 or more adult passengers, including the driver; or

(c) [Section 2 Subsection (2A) amended by No. 38 of 2010, s. 4, Applied:14 Dec 2010] [Section 2 Subsection (2A) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] a vehicle that is not designed and constructed primarily for the carriage of passengers but has a GVM exceeding 4.5 tonnes; or

(d) [Section 2 Subsection (2A) amended by No. 38 of 2017, s. 5, Applied:03 Dec 2018] a vehicle that is being used to transport dangerous goods within the meaning of the Dangerous Goods (Road and Rail Transport) Act 2010 .

(3)  [Section 2 Subsection (3) substituted by No. 91 of 1982, s. 3 ][Section 2 Subsection (3) substituted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] A reference in this Act to the liability of a person to submit to a breath analysis, oral fluid analysis, medical examination or the taking of a sample of blood is a reference to such a liability arising, or a requirement made, in respect of the person under section 7A , 7B , 8 , 8A or 9 .

(3A)  [Section 2 Subsection (3A) inserted by No. 91 of 1982, s. 3 ][Section 2 Subsection (3A) amended by No. 18 of 2005, s. 4, Applied:01 Jul 2005] [Section 2 Subsection (3A) omitted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(4)  [Section 2 Subsection (4) amended by No. 91 of 1982, s. 3 ][Section 2 Subsection (4) substituted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] For the purposes of this Act, a reference to the driving of a vehicle or a motor vehicle includes any of the following acts or omissions:

(a) having charge of the vehicle or motor vehicle;

(b) being in control of the vehicle or motor vehicle;

(c) having control of the steering, braking or other system on the vehicle, or motor vehicle, including while it is being towed;

(d) attempting to drive the vehicle or motor vehicle;

(e) an act or omission –

(i) done, or made, with the intention to drive; and

(ii) that forms part of a series of events that, if it were not interrupted, would constitute the actual act of driving.

(5)  [Section 2 Subsection (5) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 2 Subsection (5) inserted by No. 68 of 1997, s. 4, Applied:01 Mar 1998] [Section 2 Subsection (5) substituted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] For the purposes of subsection (4) , a person may be taken to be driving a vehicle or motor vehicle even if –

(a) the vehicle or motor vehicle is stationary at the time the relevant act or omission under subsection (4) occurred; or

(b) the person leaves, or is removed from, the vehicle or motor vehicle after the relevant act or omission under subsection (4) occurred.

(6)  [Section 2 Subsection (6) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 2 Subsection (6) inserted by No. 68 of 1997, s. 4, Applied:01 Mar 1998] [Section 2 Subsection (6) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 2 Subsection (6) substituted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] For the purposes of subsection (4) , if the holder of a learner licence is driving a vehicle, or motor vehicle, within the meaning of that subsection, each of the following persons is taken to be driving the vehicle or motor vehicle at the time:

(a) the holder of the learner driver licence;

(b) the holder of an Australian driver licence who is or was –

(i) seated in or on the vehicle or motor vehicle; and

(ii) instructing the holder of the learner driver licence to drive the vehicle or motor vehicle;

(c) if the holder of the learner driver licence is undertaking a test or assessment for the purposes of the Vehicle and Traffic Act 1999 , the person who is or was –

(i) seated in or on the vehicle or motor vehicle; and

(ii) testing or assessing the holder of the learner driver licence for the purposes of that Act.

(7)  [Section 2 Subsection (7) inserted by No. 38 of 2017, s. 5, Applied:03 Dec 2018] It is a defence to an offence under this Act if the holder of an Australian driver licence referred to in subsection (6)(b) proves that, while in the vehicle or motor vehicle with the learner driver –

(a) he or she did not consent to being in the vehicle or motor vehicle while the holder of the learner driver licence was driving the vehicle or motor vehicle; or

(b) he or she did not know, and could not have reasonably been expected to have known, that the person driving the vehicle or motor vehicle did not hold a full licence, or provisional licence, for the vehicle or motor vehicle.

2A.   Meaning of relevant time

[Section 2A Inserted by No. 38 of 2017, s. 6, Applied:03 Dec 2018]

(1)  For the purposes of this Act, a reference to a relevant time in relation to a person who becomes liable to submit to a test, analysis or medical examination is a reference to the time of the last act of driving by the person before the person became so liable.

(2)  For the purposes of subsection (1) , if the last act of driving cannot be ascertained with reasonable accuracy, the time of the last act of driving by a person is taken to be –

(a) if the person becomes liable to submit to the test or analysis under section 8(1) or 8A(1) , the time when the person is first found by a police officer after becoming so liable; or

(b) if the person becomes liable to submit to the test, analysis or medical examination as a result of a crash –

(i) the time at which the person is found by a police officer after the crash –

(A) at, or near, the place of the crash; or

(B) at, or being conveyed to, a place for the purpose of receiving medical treatment; or

(ii) if the person is found by a police officer after the crash in any other place, the time of the crash.

2B.   Person liable to submit to analysis, examination, &c., to comply with police requirements

[Section 2B Inserted by No. 38 of 2017, s. 6, Applied:03 Dec 2018]

(1)  For the purposes of this Act, if a person becomes liable, or elects, to submit to a breath analysis, oral fluid analysis, medical examination or provide a blood sample under this Act, he or she must comply with any reasonable requirement made of him or her by a police officer until –

(a) the analysis or medical examination is performed in accordance with this Act; or

(b) a sample of blood is taken in accordance with this Act.

(2)  For the purposes of subsection (1) , a requirement under that subsection may include, but is not limited to, either or both of the following requirements:

(a) the person is to remain in a specific location until directed otherwise;

(b) the person is to remain under supervision as directed.

(3)  A person who fails to comply with a requirement under subsection (1) is guilty of an offence.

3.   Approved analysts and approved operators

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 3 Subsection (1) substituted by No. 29 of 1984, s. 3 and Sched. 1 ][Section 3 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 3 Subsection (7) omitted by No. 94 of 1975, s. 3 ][Section 3 Substituted by No. 38 of 2017, s. 6, Applied:03 Dec 2018]

(1)  The Minister may, with the approval of the Head of a State Service Agency, appoint a State Service officer or State Service employee employed in that Agency to be an approved analyst for the purposes of this Act, and such officer or employee may hold office as an approved analyst in conjunction with State Service employment.

(2)  The Minister may appoint a person to be an approved analyst for the purposes of this Act and such person may hold office as an approved analyst in conjunction with any other employment.

(3)  The Minister is not to appoint a person as an approved analyst under subsection (1) or (2) unless the Minister is satisfied that the person to be appointed holds the prescribed qualifications, and prescribed experience, for an approved analyst.

(4)  An approved analyst has such functions and powers as may be prescribed.

(5)  For the purposes of this Act, an approved operator is a person of a prescribed class who is authorised by the Commissioner of Police, as prescribed, to administer a test or analysis under this Act.

3A.   Delegation

[Section 3A Inserted by No. 38 of 2017, s. 6, Applied:03 Dec 2018]

(1)  A police officer may delegate any of his or her functions or powers under this Act, other than his or her functions as an approved operator, to any other police officer.

(2)  An approved analyst may delegate any of his or her functions or powers under this Act to –

(a) any other approved analyst; or

(b) a person who is qualified to perform the function or exercise the power and is doing so under the supervision of an approved analyst.

(3)  A police officer, or approved analyst, may delegate a function or power under this section in relation to a matter regardless of whether he or she has performed a previous function, or exercised a previous power, in respect of the same matter.

PART II - Offences related to the taking of alcohol and drugs and the detection thereof

Division 1 - Driving under the influence of alcohol or drugs

4.   Driving while under the influence of alcohol, drugs, &c., prohibited

[Section 4 Amended by No. 38 of 2017, s. 7, Applied:03 Dec 2018] [Section 4 Substituted by No. 68 of 1997, s. 5, Applied:01 Mar 1998] A person who drives a vehicle, whether or not the vehicle is on a public street, while under the influence of one or more of the following substances to the extent that he or she is incapable of having proper control of the vehicle is guilty of an offence:

(a) intoxicating liquor;

(b) a drug.

5.   Powers of arrest, &c.

(1)  [Section 5 Subsection (1) amended by No. 38 of 2017, s. 8, Applied:03 Dec 2018] [Section 5 Subsection (1) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] If a police officer has reasonable grounds to suspect that a person has committed an offence against section 4 , 14(1B) or 19A(1) , the police officer may exercise either or both of the following powers:

(a) arrest the person without warrant;

(b) impound the vehicle driven by the person and have it removed to a convenient place for safe-keeping.

(1AA)  [Section 5 Subsection (1AA) inserted by No. 44 of 1991, s. 5 ]A police officer may –

(a) arrest without warrant a person who, without reasonable excuse, fails or refuses to comply with a requirement or direction, as the case may be, made to that person by the police officer under section 10 (4) or 10A (1) ; and

(b) [Section 5 Subsection (1AA) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] impound the vehicle driven by the person and have it removed to a convenient place for safe-keeping.

(1AB)  [Section 5 Subsection (1AB) inserted by No. 38 of 2017, s. 8, Applied:03 Dec 2018] A police officer may use reasonable force when arresting a person in accordance with this section.

(1A)  [Section 5 Subsection (1A) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 5 Subsection (1A) inserted by No. 18 of 1974, s. 3 ]Where a police officer has, as a result of a breath analysis, reasonable grounds for believing that a person has committed an offence against section 6 he may arrest that person without warrant, and may impound the vehicle driven by the person and have it removed to a convenient place for safe-keeping.

(1B)  [Section 5 Subsection (1B) substituted by No. 94 of 1975, s. 4 ][Section 5 Subsection (1B) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] A person entitled to possession of an impounded vehicle may collect the vehicle, or have it collected, from the place to which it has been removed for safe-keeping on payment of the reasonable cost of impounding and removing the vehicle and of its safe-keeping.

(2)  [Section 5 Subsection (2) amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 5 Subsection (2) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] Upon the hearing of any proceedings against a person who has been arrested under this section in respect of the circumstances occasioning the arrest, a court may order the person to pay the reasonable cost of impounding and removing the vehicle and of its safe-keeping.

(3)  Nothing in this section prejudices or affects the operation of section 41A of the Traffic Act 1925 .

(4)  [Section 5 Subsection (4) inserted by No. 9 of 2008, s. 5, Applied:04 Jun 2008] A police officer may, for the purpose of performing any function or exercising any power under this Act, enter a motor vehicle using such force as is necessary and reasonable.

5A.   Powers in relation to vehicles

[Section 5A Inserted by No. 38 of 2017, s. 9, Applied:03 Dec 2018]

(1)  If a police officer has reasonable grounds to suspect that a person is driving, is attempting to drive, has driven or has attempted to drive a vehicle in contravention of this Act, the police officer may require the person to immediately hand over all keys to any vehicle that are in the possession of the person at the time –

(a) to the police officer or another police officer; or

(b) to another person, if the police officer is satisfied that the other person –

(i) is authorised to drive the vehicle on a public street; and

(ii) at the time of receiving the keys, is able to lawfully drive the vehicle on a public street.

(2)  A police officer may make a requirement under subsection (1) in respect of a person if satisfied that the requirement is in the interests of public safety and may do so whether or not the person has been, or is to be, charged with an offence under this Act or any other Act.

(3)  If a person hands over keys to a vehicle to a police officer under subsection (1) (a), the police officer may take any steps that he or she considers appropriate and practicable, in order to ensure that the vehicle is not causing an obstruction and is secure, including –

(a) moving the vehicle to a more suitable or secure place; and

(b) authorising another person to move the vehicle, including towing the vehicle, to a more suitable or secure place.

(4)  A police officer may retain keys to a vehicle handed over to the police officer under subsection (1) (a) for as long as is reasonable in the circumstances.

(5)  A person who fails to comply with a requirement made of the person under subsection (1) is guilty of an offence.

6.   Driving with excessive concentration of breath or blood alcohol

(1)  [Section 6 Subsection (1) amended by No. 28 of 2005, s. 7, Applied:01 Feb 2006] Any person who drives a motor vehicle while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration is guilty of an offence.

(2)  [Section 6 Subsection (2) amended by No. 68 of 1997, s. 6, Applied:01 Feb 1997] [Section 6 Subsection (2) substituted by No. 94 of 1975, s. 5 ]A person to whom, by virtue of subsection (3) or (4) , this subsection applies who drives a motor vehicle while alcohol is present in his body is guilty of an offence.

(3)  [Section 6 Subsection (3) substituted by No. 51 of 1977, s. 2 ][Section 6 Subsection (3) substituted by No. 44 of 1991, s. 6 ] Subsection (2) applies to a person –

(a) [Section 6 Subsection (3) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] who does not hold an Australian driver licence, foreign driver licence or international driving permit; or

(ab) [Section 6 Subsection (3) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] who holds a learner licence, a provisional licence or an equivalent licence issued under the law of another Australian jurisdiction; or

(ac) [Section 6 Subsection (3) amended by No. 38 of 2017, s. 10, Applied:03 Dec 2018] who is driving under the authority of an Australian driver licence that requires the holder of the licence to have no alcohol present in his or her body while driving a motor vehicle; or

(b) [Section 6 Subsection (3) amended by No. 53 of 1997, Sched. 1, Applied:26 Jun 2000] who is driving a prescribed vehicle; or

(c) [Section 6 Subsection (3) amended by No. 68 of 1997, s. 6, Applied:01 Feb 1997] who has, after the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991 , been convicted of–

(i) the crime of manslaughter arising out of the driving of a motor vehicle; or

(ii) the crime of causing death by dangerous driving–

if, as a result of the course of conduct giving rise to that crime, that person was also convicted of an offence under section 4 of this Act or this section.

(ca) [Section 6 Subsection (3) amended by No. 38 of 2017, s. 10, Applied:03 Dec 2018] who, after the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 2017 , has been convicted of –

(i) the offence of reckless driving or negligent driving; or

(ii) an offence under section 32 of the Traffic Act 1925  –

if, as a result of the conduct giving rise to the offence, the person was also convicted of an offence under section 4 of this Act or this section; or

(d) [Section 6 Subsection (3) amended by No. 68 of 1997, s. 6, Applied:01 Feb 1997] [Section 6 Subsection (3) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] who is driving under the authority of a restricted driver licence issued for a period of disqualification from driving imposed for an offence against this Act.

(3A)  [Section 6 Subsection (3A) amended by No. 38 of 2017, s. 10, Applied:03 Dec 2018] [Section 6 Subsection (3A) substituted by No. 51 of 1977, s. 2 ][Section 6 Subsection (3A) substituted by No. 44 of 1991, s. 6 ][Section 6 Subsection (3A) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] For the purposes of subsection (3) , a person who does not hold an Australian driver licence is to be taken to hold such a licence if the person satisfies the court that he or she would, but for an unintentional failure to comply with an administrative requirement within the preceding 6-month period, be the holder of such a licence.

(3B)  [Section 6 Subsection (3B) inserted by No. 4 of 2011, s. 49, Applied:01 Jun 2011] For the purposes of subsection (3)(a) , a person –

(a) whose driver licence, within the meaning of the Vehicle and Traffic Act 1999 , is suspended under Part 6 of the Monetary Penalties Enforcement Act 2005 ; or

(b) who is ineligible to hold such a driver licence by reason of Part 6 of the Monetary Penalties Enforcement Act 2005 but would otherwise be eligible to hold such a driver licence –

is taken to hold an Australian driver licence.

(4)  [Section 6 Subsection (4) substituted by No. 94 of 1975, s. 5 ][Section 6 Subsection (4) amended by No. 51 of 1977, s. 2 ][Section 6 Subsection (4) substituted by No. 68 of 1997, s. 6, Applied:01 Feb 1997] Subsection (2) applies to a person if –

(a) the person has been convicted within any 10 year period of 3 or more offences under this Act arising from at least 3 separate incidents; and

(b) at least one of those offences was committed on or after 12 December 1991; and

(c) either –

(i) less than 10 years has passed since the last of those convictions was recorded; or

(ii) [Section 6 Subsection (4) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] 10 or more years have passed since the last of those convictions was recorded and the person has not provided to the Registrar of Motor Vehicles the certificate of a medical practitioner or a prescribed person certifying that the person is not alcohol-dependent.

(5)  [Section 6 Subsection (5) inserted by No. 68 of 1997, s. 6, Applied:01 Feb 1997] If any proceedings for a prescribed offence have been commenced but not completed before the assent date, those proceedings may be continued and subsections (2) and (3)(d) , as in force immediately before the assent date, continue to apply for that purpose.

(6)  [Section 6 Subsection (6) inserted by No. 68 of 1997, s. 6, Applied:01 Feb 1997] Nothing in this section affects a conviction for a prescribed offence.

(7)  [Section 6 Subsection (7) inserted by No. 68 of 1997, s. 6, Applied:01 Feb 1997] In this section –

assent date means the day on which the Road Safety (Alcohol and Drugs) Amendment Act 1997 received the Royal Assent;

prescribed offence means an offence under subsection (2) in respect of a person of a class referred to in subsection (3)(d) as in force immediately before the assent date.

6A.   Driving with prescribed illicit drug in blood

[Section 6A Inserted by No. 18 of 2005, s. 5, Applied:01 Jul 2005]

(1)  [Section 6A Subsection (1) amended by No. 38 of 2017, s. 11, Applied:03 Dec 2018] Subject to subsection (2) , a person who drives a motor vehicle while a prescribed illicit drug is present in his or her blood or oral fluid is guilty of an offence.[Section 6A Subsection (1) amended by No. 84 of 2009, s. 4, Applied:01 Jan 2010]

(2)  A person does not commit an offence against subsection (1) if the prescribed illicit drug was obtained and administered in accordance with the Poisons Act 1971 .

(3)  [Section 6A Subsection (3) omitted by No. 84 of 2009, s. 4, Applied:01 Jan 2010] .  .  .  .  .  .  .  .  

(4)  [Section 6A Subsection (4) omitted by No. 84 of 2009, s. 4, Applied:01 Jan 2010] .  .  .  .  .  .  .  .  

7.   Consumption, &c., of intoxicating liquor in motor vehicles

(1)  No person shall drive a motor vehicle while he is consuming intoxicating liquor.

(2)  No person shall drive a motor vehicle while any person in the vehicle is, to his knowledge, consuming intoxicating liquor.

(3)  No person shall, in a motor vehicle that is in motion, consume any intoxicating liquor.

(3A)  [Section 7 Subsection (3A) amended by No. 60 of 2011, Sched. 1, Applied:01 Jul 2013] [Section 7 Subsection (3A) amended by No. 28 of 2005, s. 8, Applied:01 Feb 2006] [Section 7 Subsection (3A) inserted by No. 71 of 2000, s. 4, Applied:14 Nov 2000] Subsections (2) and (3) do not apply to a person in a motor vehicle that is being used to operate a passenger transport service within the meaning of the Passenger Transport Services Act 2011 if there is a liquor permit in force under Division 3 of Part 2 of the Liquor Licensing Act 1990 in respect of that motor vehicle.

(4)  [Section 7 Subsection (4) amended by No. 94 of 1975, s. 6 ]A person who contravenes any provision of this section is guilty of an offence.

Division 2 - Examination of persons for alcohol or drugs

7AA.   Application of Part

[Section 7AA Inserted by No. 38 of 2017, s. 12, Applied:03 Dec 2018] If –

(a) a police officer reasonably believes that a person is liable to submit to a test, analysis or medical examination under this Act; and

(b) the person flees from the police officer, or another person, while the police officer or other person is attempting to administer the test or analysis, or to arrange for the medical examination to be performed; and

(c) the police officer, or another police officer, immediately pursues the person and the pursuit continues without interruption; and

(d) during the pursuit the person enters a private residence or another place that is not a public place –

the pursuing police officer may, without warrant and using no more force than is reasonably necessary for the purpose, enter the private residence or other place notwithstanding that it is not a public place.

7A.   Power of police officer to require driver of motor vehicle to undergo breath test

[Section 7A Inserted by No. 91 of 1982, s. 4 ]

(1)  A police officer may require any person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, a breath test and, for the purpose of enabling him to make such a request, may, if necessary, direct that person, by signal or otherwise, to stop his vehicle.

(2)  A requirement or direction under subsection (1) may be made by a police officer whether or not he has grounds for suspecting that a person may have consumed intoxicating liquor.

(3)  Where under subsection (1) a police officer requires a person to undergo a breath test, that person shall comply with the requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

(4)  [Section 7A Subsection (4) amended by No. 38 of 2017, s. 13, Applied:03 Dec 2018] [Section 7A Subsection (4) amended by No. 28 of 2005, s. 9, Applied:01 Feb 2006] Where, after requiring a person to undergo a breath test in accordance with this section, a police officer reasonably believes that alcohol may be present in that person's breath or blood, whether as a result of such a test or not –

(a) [Section 7A Subsection (4) amended by No. 38 of 2017, s. 13, Applied:03 Dec 2018] the police officer may require the person to undergo another breath test; and

(b) [Section 7A Subsection (4) amended by No. 38 of 2017, s. 13, Applied:03 Dec 2018] whether or not a further breath test is required under paragraph (a) , the person becomes liable to submit to a breath analysis.

(5)  [Section 7A Subsection (5) omitted by No. 38 of 2017, s. 13, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

7B.   Power of police officer to require driver of motor vehicle to undergo oral fluid test

[Section 7B Inserted by No. 18 of 2005, s. 6, Applied:01 Jul 2005]

(1)  A police officer may require any person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, an oral fluid test.

(2)  For the purpose of making a requirement under subsection (1) , the police officer may direct the person, by signal or otherwise, to stop the vehicle.

(3)  Where a police officer requires a person to undergo an oral fluid test under subsection (1) , that person must comply with the requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

(4)  [Section 7B Subsection (4) amended by No. 38 of 2017, s. 14, Applied:03 Dec 2018] A requirement or direction under this section may be made by a police officer whether or not the officer has grounds for suspecting that a person may have a prescribed illicit drug in his or her oral fluid.

(5)  [Section 7B Subsection (5) substituted by No. 38 of 2017, s. 14, Applied:03 Dec 2018] Where, after requiring a person to undergo an oral fluid test in accordance with this section, a police officer reasonably believes that an illicit drug has been consumed by, or administered to, the person, whether as a result of such a test or not –

(a) the police officer may require the person to undergo another oral fluid test; and

(b) whether or not a further oral fluid test is required under paragraph (a) , the person becomes liable to submit to an oral fluid analysis.

7C.   Liability to provide blood sample following oral fluid test

[Section 7C Inserted by No. 18 of 2005, s. 6, Applied:01 Jul 2005]

(1)  [Section 7C Subsection (1) substituted by No. 38 of 2017, s. 15, Applied:03 Dec 2018] If a police officer requires a person to undergo an oral fluid test in accordance with section 7B or 8A and –

(a) the police officer reasonably believes that an illicit drug has been consumed by, or administered to, the person, whether as a result of such a test or not; or

(b) the person refuses to undergo the oral fluid test –

the police officer may require that person to submit to the taking, by a qualified person, of a sample of blood for analysis.

(2)  [Section 7C Subsection (2) amended by No. 38 of 2017, s. 15, Applied:03 Dec 2018] A police officer may only require a person to submit to the taking of a sample of blood for analysis if the officer reasonably believes that the sample can be taken within 5 hours of the relevant time.

(3)  Where a police officer requires a person to submit to the taking of a sample of blood for analysis under subsection (1) , that person must comply with the requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

7D.   Trace particle detection tests

[Section 7D Inserted by No. 9 of 2008, s. 6, Applied:04 Jun 2008]

(1)  A police officer may direct any person who is driving a motor vehicle on a public street to stop his or her vehicle for the purpose of conducting a trace particle detection test.

(2)  [Section 7D Subsection (2) amended by No. 38 of 2017, s. 16, Applied:03 Dec 2018] A direction may be given under subsection (1) whether or not the police officer has grounds for suspecting that a person may have a prescribed illicit drug in his or her blood or oral fluid.

(3)  For the purpose of performing a trace particle detection test, a police officer may collect a sample from the steering wheel of a motor vehicle directed to stop under subsection (1) or required or directed to stop under any other provision of this Act.

(4)  A police officer may use such force as is necessary and reasonable to collect a sample referred to in subsection (3) .

8.   Liability for breath test as a result of conduct

[Section 8 Substituted by No. 91 of 1982, s. 5 ]

(1)  [Section 8 Subsection (1) amended by No. 38 of 2017, s. 17, Applied:03 Dec 2018] [Section 8 Subsection (1) amended by No. 28 of 2005, s. 10, Applied:01 Feb 2006] Where at any time a police officer finds a person in circumstances which give him cause to suspect that alcohol may be present in that person's breath or blood and the police officer reasonably believes that that person drove a motor vehicle while that alcohol was so present, that person becomes liable to submit to a breath analysis.

(2)  [Section 8 Subsection (2) amended by No. 38 of 2017, s. 17, Applied:03 Dec 2018] [Section 8 Subsection (2) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] Where a police officer reasonably believes that, while a motor vehicle was in motion, an offence under section 167A of the Criminal Code , or an offence under this Act, the Traffic Act 1925 or the Vehicle and Traffic Act 1999 , was committed, the person (if any) who was driving the vehicle when it was in motion becomes liable to submit to a breath analysis.

(2A)  [Section 8 Subsection (2A) amended by No. 38 of 2017, s. 17, Applied:03 Dec 2018] [Section 8 Subsection (2A) inserted by No. 68 of 2007, s. 5, Applied:19 Dec 2007] Where the driver of a vehicle that has been involved in a crash cannot be immediately identified, any person who was in the vehicle at the time of the crash becomes liable to submit to a breath analysis.

(3)  [Section 8 Subsection (3) amended by No. 38 of 2017, s. 17, Applied:03 Dec 2018] Where a police officer reasonably believes that, while a motor vehicle was in motion, the vehicle became involved in a crash, the person (if any) who was driving the vehicle at the time of the crash becomes liable to submit to a breath analysis.

(4)  Without affecting the generality of subsection (1) , a police officer may, for the purpose of forming the suspicion referred to in that subsection, deduce from the manner in which the person concerned was behaving at the time when the police officer found him that that person may have had alcohol in his body at that time.

(5)  [Section 8 Subsection (5) amended by No. 38 of 2017, s. 17, Applied:03 Dec 2018] Where a motor vehicle continues in motion after the commission of an offence referred to in subsection (2) or after the occurrence of a crash referred to in subsection (3) , the police officer concerned may, if necessary, direct the person who is driving the vehicle, by signal or otherwise, to stop his vehicle.

(6)  [Section 8 Subsection (6) amended by No. 68 of 2007, s. 5, Applied:19 Dec 2007] Where a person has become liable to undergo a breath analysis by virtue of subsection (1) , (2) , (2A) or (3) , a police officer may first require that person to undergo a breath test at or near the place where the requirement was made.

(7)  Where under subsection (6) a police officer requires a person to undergo a breath test, that person shall comply with that requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

(8)  [Section 8 Subsection (8) amended by No. 28 of 2005, s. 10, Applied:01 Feb 2006] Where a person who has become liable under this section to submit to a breath analysis undergoes a breath test in accordance with the directions of a police officer, that person ceases to be so liable, unless the result of the breath test indicates that alcohol may be present in that person's breath or blood.

8A.   Liability for oral fluid test or oral fluid analysis as result of conduct

[Section 8A Inserted by No. 18 of 2005, s. 7, Applied:01 Jul 2005]

(1)  [Section 8A Subsection (1) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where at any time a police officer finds a person in circumstances which give the police officer cause to reasonably suspect that a prescribed illicit drug may be present in that person's oral fluid and the police officer reasonably believes that that person drove a motor vehicle while that drug was so present, the police officer may require the person to undergo an oral fluid test or oral fluid analysis.

(2)  [Section 8A Subsection (2) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where a police officer reasonably believes that, while a motor vehicle was in motion, a crime under section 167A of the Criminal Code , or an offence under the Traffic Act 1925 or the Vehicle and Traffic Act 1999 , was committed, the police officer may require the person (if any) who was driving the vehicle when it was in motion to undergo an oral fluid test or oral fluid analysis.

(3)  [Section 8A Subsection (3) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where a police officer reasonably believes that, while a motor vehicle was in motion, the vehicle became involved in a crash, the police officer may require the person (if any) who was driving the vehicle at the time of the crash to undergo an oral fluid test or oral fluid analysis.

(4)  [Section 8A Subsection (4) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Without affecting the generality of subsection (1) , a police officer may, for the purpose of forming the suspicion referred to in that subsection, deduce from the manner in which the person concerned was behaving at the time when the police officer found him or her that that person may have had a prescribed illicit drug in his or her oral fluid at that time.

(5)  [Section 8A Subsection (5) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where a motor vehicle continues in motion after the commission of a crime or an offence referred to in subsection (2) or after the occurrence of a crash referred to in subsection (3) , the police officer concerned may, if necessary, direct the person who is driving the vehicle, by signal or otherwise, to stop the vehicle.

(5A)  [Section 8A Subsection (5A) inserted by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where a person has become liable to undergo an oral fluid analysis by virtue of this section, a police officer may first require that person to undergo an oral fluid test at or near the place where the requirement was made.

(6)  [Section 8A Subsection (6) amended by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where a police officer requires a person to undergo an oral fluid test under subsection (1) , (2) (3) or (5A) that person must comply with the requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

(7)  [Section 8A Subsection (7) inserted by No. 38 of 2017, s. 18, Applied:03 Dec 2018] Where under subsection (5A) a police officer requires a person to undergo an oral fluid test, that person must comply with that requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

9.   Liability for medical examination where condition may not be due to alcohol

(1)  [Section 9 Subsection (1) amended by No. 91 of 1982, s. 6 ]Where a police officer reasonably believes that a person drove a motor vehicle in a public street while he was in such a condition as to be incapable of driving that vehicle without risk of danger to other persons and is of the opinion (as the result of a breath test or a breath analysis or otherwise) that that condition did not arise, or did not wholly arise, from the presence of alcohol in his body, the police officer may require that person to undergo a medical examination, and, for the purpose of enabling him to make such a requirement, the police officer may direct that person, by signal or otherwise, to stop his vehicle.

(2)  [Section 9 Subsection (2) substituted by No. 91 of 1982, s. 6 ]Where a requirement is made of a person under subsection (1) , that person becomes liable to submit to a medical examination.

(3)  The medical examination referred to in this section is an examination by a medical practitioner directed to ascertaining whether the condition of the person submitting to the examination arises wholly or partially from the taking or administration of drugs, and, if such be the case, the nature of those drugs.

(3A)  [Section 9 Subsection (3A) inserted by No. 38 of 2017, s. 19, Applied:03 Dec 2018] A police officer may request that, as part of a medical examination referred to in this section, the medical practitioner by whom it is being carried out enable a qualified person to take a sample of blood for analysis under this Act from the person being examined.

(4)  [Section 9 Subsection (4) amended by No. 38 of 2017, s. 19, Applied:03 Dec 2018] Where in the course of such a medical examination as is referred to in this section the medical practitioner by whom the examination is being carried out informs the person submitting to the examination that it is necessary or desirable in order to effect the purpose of the examination for an analysis to be made of a sample of the blood of that person, or a request has been made under subsection (3A) in respect of the person, the obligation of that person to submit to that examination shall be deemed to include an obligation to submit to the taking of a sample of his blood.

10.   Enforcement of obligation to provide blood sample or submit to breath analysis or medical examination

(1)  [Section 10 Subsection (1) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (1) amended by No. 18 of 2005, s. 8, Applied:01 Jul 2005] [Section 10 Subsection (1) amended by No. 91 of 1982, s. 7 ][Section 10 Subsection (1) amended by No. 17 of 1984, s. 4 ]A police officer may require a person who is liable under this Part to submit to the taking of a sample of blood for analysis or submit to a breath analysis, oral fluid analysis or a medical examination to proceed to such place or into such vehicle by such means and with such person as the officer may indicate and there submit himself or herself to the taking of that sample or to that analysis or that examination.

(2)  [Section 10 Subsection (2) amended by No. 91 of 1982, s. 7 ]If a person fails or refuses to comply with a requirement made under subsection (1) , or is in such a condition or behaves in such a manner as to give reasonable grounds for believing that he will not comply with the requirement, a police officer may take him into custody and convey him or cause him to be conveyed to some appropriate place, and there detain him or cause him to be detained, for so long as is necessary to enable a direction to be given to him under subsection (4) .

(3)  [Section 10 Subsection (3) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (3) amended by No. 18 of 2005, s. 8, Applied:01 Jul 2005] [Section 10 Subsection (3) amended by No. 91 of 1982, s. 7 ]A police officer shall not exercise his powers under subsection (2) in respect of any person unless that officer has reasonable cause to believe that the taking of the sample of blood for analysis, or the taking of a sample of oral fluid for oral fluid analysis, or the breath analysis or medical examination can be carried out, within 5 hours after the relevant time, at or near the place to which that person is to be, is being, or has been conveyed in the exercise of those powers.

(4)  [Section 10 Subsection (4) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (4) amended by No. 17 of 1984, s. 4 ][Section 10 Subsection (4) substituted by No. 18 of 2005, s. 8, Applied:01 Jul 2005] Where a person who is liable to submit to the taking of a sample of blood for analysis, or the taking of a sample of oral fluid for oral fluid analysis, or submit to a breath analysis or a medical examination is at a place where, or in a vehicle in which, that sample can forthwith be taken or that analysis or medical examination can forthwith be carried out, a police officer may direct him or her there to submit to the taking of the sample or to the analysis or examination.

(4A)  [Section 10 Subsection (4A) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (4A) substituted by No. 91 of 1982, s. 7 ][Section 10 Amended by No. 17 of 1984, s. 4 ]Where a person who is liable to submit to a breath analysis is at a place where, or in a vehicle in which, that analysis can be carried out forthwith and that person fails or refuses to comply with a direction given to him in accordance with subsection (4) , the approved operator of the breath analysing instrument at that place or in that vehicle shall inform that person that he may elect to submit to the taking of a sample of his blood for analysis instead of submitting to a breath analysis, but only if the taking of that sample can be begun within 5 hours after the relevant time.

(4AB)  [Section 10 Subsection (4AB) inserted by No. 38 of 2017, s. 20, Applied:03 Dec 2018] Where a person who has been informed in accordance with subsection (4A) declines to submit to the taking of a sample of blood –

(a) the approved operator concerned is to inform the person of the consequences of declining to submit to the taking of the sample; and

(b) if the person does not elect to submit to the taking of the sample as soon as practicable after being informed of the consequences of declining to submit –

(i) the person is taken to have declined to submit to the taking of the sample; and

(ii) the deemed decision to decline to submit to the taking of the sample is final.

(4B)  [Section 10 Subsection (4B) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (4B) inserted by No. 91 of 1982, s. 7 ]Where a person who has been informed in accordance with subsection (4A) elects to submit to the taking of a sample of blood under subsection (4A) or (4AB) , the approved operator concerned shall forthwith cause arrangements to be made for such a sample to be taken by a qualified person.

(5)  Where a person is at a hospital for medical treatment or is being attended by a medical practitioner for medical treatment, a police officer shall not direct that person to submit to a breath analysis unless he notifies the medical practitioner in charge of that treatment of his intention to make the direction and that medical practitioner does not object on the grounds that compliance therewith, would, in his opinion, be prejudicial to the proper care or treatment of that person.

(6)  Where a person is liable to submit to a breath analysis a police officer, if –

(a) a medical practitioner has objected to the submission of that person to such an analysis on the grounds referred to in subsection (5) ;

(b) it appears to that officer that it may be dangerous to that person's medical condition to submit to the analysis; or

(c) it appears to that officer that, by reason of that person's condition, it is not practicable for that person to submit to the analysis –

may direct that person to submit to the taking of a sample of his blood for analysis.

(7)  [Section 10 Subsection (7) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (7) amended by No. 91 of 1982, s. 7 ]No direction shall be given under this section to a person requiring him to submit to a breath analysis or oral fluid analysis, or to a medical examination, or to the taking of a sample of his blood, after the expiration of 5 hours after the relevant time and a person is not required under this section to submit to a breath analysis or oral fluid analysis, or to the taking of a sample of his blood, or to a medical examination that is begun after the expiration of that period.

(8)  [Section 10 Subsection (8) amended by No. 38 of 2017, s. 20, Applied:03 Dec 2018] [Section 10 Subsection (8) amended by No. 94 of 1975, s. 8 ]Where a motor vehicle is involved in a crash in a public street a police officer may place on, or attach to, the clothing or body of any person whom that officer reasonably believes may have been the driver of that vehicle, a prescribed means of identification, if the officer is satisfied that that person is in such a condition as to be unable to understand or comply with any request or direction that, assuming that person to have been the driver of that vehicle at the time of the crash, could otherwise be given to him under this section.

10A.   Blood samples to be provided in certain cases

[Section 10A Inserted by No. 44 of 1991, s. 7 ]

(1)  [Section 10A Subsection (1) amended by No. 38 of 2017, s. 21, Applied:03 Dec 2018] [Section 10A Subsection (1) amended by No. 18 of 2005, s. 9, Applied:01 Jul 2005] Where a police officer reasonably believes that a person was the driver of a vehicle involved in a crash in which personal injury to any person was sustained, the police officer may require the driver to submit to the taking of a sample of blood for analysis.

(1A)  [Section 10A Subsection (1A) amended by No. 38 of 2017, s. 21, Applied:03 Dec 2018] [Section 10A Subsection (1A) inserted by No. 68 of 2007, s. 6, Applied:19 Dec 2007] Where the driver of a vehicle that has been involved in a crash cannot be immediately identified, a police officer may require any person who was in the vehicle at the time of the crash to submit to the taking of a sample of blood for analysis.

(1B)  [Section 10A Subsection (1B) inserted by No. 38 of 2017, s. 21, Applied:03 Dec 2018] Where a person is arrested by a police officer for an offence under section 4 , the police officer may require the person to submit to the taking of a sample of blood for analysis.

(2)  [Section 10A Subsection (2) amended by No. 38 of 2017, s. 21, Applied:03 Dec 2018] Where a person agrees to submit to the taking of a sample of blood, the relevant provisions of this Act apply as if the person were a person who had elected to provide a sample of blood in accordance with section 10 .

10B.   Subsequent testing and samples in certain cases

[Section 10B Inserted by No. 38 of 2017, s. 22, Applied:03 Dec 2018]

(1)  A police officer may require a person, who is liable under this Part to submit to a breath test, oral fluid test, breath analysis or oral fluid analysis, to submit to a further test or analysis if –

(a) the previous breath test, oral fluid test, breath analysis or oral fluid analysis of the person was unable to be completed due to an error by, or a malfunction of, an instrument, or thing, used as part of the test or analysis; and

(b) it is still within the relevant time in respect of the act of the person, or the act of driving by the person, that resulted in that liability of the person.

(2)  Nothing in subsection (1) alters the relevant time in respect of an act of the person or an act of driving by the person.

(3)  For the purposes of subsection (1) , a police officer may direct the person to another location for the purpose of a subsequent test or analysis.

11.   Rights and obligations on completion of breath analysis or oral fluid analysis

[Section 11 Amended by No. 94 of 1975, s. 9 ]

(1)  [Section 11 Subsection (1) amended by No. 28 of 2005, s. 11, Applied:01 Feb 2006] As soon as practicable after a person has submitted to a breath analysis the approved operator by whom the breath analysing instrument was operated shall read over to him and hand to him a written statement, in such prescribed form as is appropriate to the case, that indicates the concentration of alcohol in the breath of that person as determined by that analysis.

(1A)  [Section 11 Subsection (1A) inserted by No. 38 of 2017, s. 23, Applied:03 Dec 2018] As soon as practicable after a person has provided a sample of oral fluid for oral fluid analysis, the approved operator who took the sample is to read over to the person, and hand the person, a written statement in such prescribed form as is appropriate to the case.

(2)  The forms prescribed for the purposes of this section are those set out in Schedule 1 unless other forms are prescribed for those purposes by regulations under this Act.

(3)  [Section 11 Subsection (3) amended by No. 38 of 2017, s. 23, Applied:03 Dec 2018] [Section 11 Subsection (3) substituted by No. 91 of 1982, s. 8 ]Where an approved operator hands a statement to a person in accordance with subsection (1) or (1A) , that person may immediately request the operator to make arrangements for a sample of that person's blood to be taken for analysis, and, on such a request being made, it is the duty of the operator to comply with the request by making arrangements for the taking of such a sample to be begun by a qualified person within 5 hours after the relevant time.

(4)  [Section 11 Subsection (4) amended by No. 38 of 2017, s. 23, Applied:03 Dec 2018] [Section 11 Subsection (4) substituted by No. 91 of 1982, s. 8 ]A person who makes an election under section 10 (4A) or a request under subsection (3) of this section is not liable under section 30A for the cost incurred in making arrangements for taking a sample of blood in consequence of that person's election or request.

12.   Examination, &c., of persons incapable of consenting

(1)  [Section 12 Subsection (1) amended by No. 44 of 1991, s. 8 ]If a police officer is informed by a medical practitioner attending a person for medical treatment that the person is by reason of his or her physical condition incapable of giving consent –

(a) to the taking of a sample of his or her blood; or

(b) to a medical examination –

to which, under this Division, the person has or could be directed to submit, the police officer may request the medical practitioner to take a sample of the person's blood or to carry out the medical examination.

(2)  [Section 12 Subsection (2) substituted by No. 44 of 1991, s. 8 ]A medical practitioner must comply with a request made to him or her in accordance with subsection (1) unless the medical practitioner is of the opinion that to do so would be prejudicial to the proper care or treatment of the person.

(3)  [Section 12 Subsection (3) amended by No. 38 of 2017, s. 24, Applied:03 Dec 2018] [Section 12 Subsection (3) amended by No. 25 of 2006, Sched. 2, Applied:23 Dec 2006] Where a request is made of a medical practitioner under subsection (1) in respect of any person, any sample of the blood of that person that has been taken in the course of, or in connection with, the medical diagnosis or treatment of that person and is available for analysis may, if the medical practitioner in immediate charge of the treatment so desires, be treated as having been taken in pursuance of the request.

(4)  [Section 12 Subsection (4) amended by No. 38 of 2017, s. 24, Applied:03 Dec 2018] [Section 12 Subsection (4) amended by No. 91 of 1982, s. 9 ]No request shall be made under this section for the taking of the sample of the blood of any person after the expiration of 5 hours after the relevant time and where a request is made under this section for the taking of a sample of the blood of that person the taking of that sample shall begin within 5 hours after the relevant time.

(5)  Where a medical practitioner is in immediate charge of the medical treatment of a person whose clothing or body bears such a means of identification as is referred to in section 10 (8) , that medical practitioner may take a sample of the blood of that person unless that person, being in a condition to refuse to submit to the taking of the sample, objects to its being taken.

13.   Duties of medical practitioners and nurses in relation to taking of blood samples, &c.

(1)  [Section 13 Subsection (1) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] Except as otherwise expressly provided therein, nothing in this Act shall be construed as requiring a qualified person to take a sample of the blood of any person, or carry out a medical examination of any person.

(1A)  [Section 13 Subsection (1A) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] [Section 13 Subsection (1A) inserted by No. 13 of 2000, s. 4, Applied:28 Apr 2000] For the purposes of this section, a sample of blood may be divided into 3 parts at the time it is taken or given or at any subsequent time.

(2)  Where a medical practitioner has refused to take, or refrained from taking, a sample of the blood of a person for the purposes of this Act, or has refused to make, or refrained from making, a medical examination of a person for those purposes, on the grounds that to do so would, in his opinion, be prejudicial to the proper care or treatment of that person, he shall, if so requested by a police officer –

(a) [Section 13 Subsection (2) amended by No. 18 of 2005, s. 10, Applied:01 Jul 2005] [Section 13 Subsection (2) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] express an opinion on the question whether that person has or, if he is in hospital, had, at the time of his admission to the hospital, alcohol or a prescribed illicit drug or other drug in his blood; and

(b) to the best of his ability answer any relevant questions put to him by the police officer in relation to that question.

(3)  [Section 13 Subsection (3) substituted by No. 38 of 2017, s. 25, Applied:03 Dec 2018] If a qualified person takes a sample of a person's blood for analysis for the purposes of this Act, it is the duty of the qualified person to ensure that the following provisions of this section are complied with in respect of the taking of the sample so far as they are applicable.

(4)  Where regulations under this Act prescribe the manner in which a sample of blood is to be taken that sample shall be taken in that manner.

(4A)  [Section 13 Subsection (4A) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] [Section 13 Subsection (4A) inserted by No. 68 of 2007, s. 7, Applied:19 Dec 2007] Where regulations under this Act prescribe an amount of blood which constitutes a sample, less than that amount may be taken if a qualified person certifies that it was not possible to obtain the prescribed amount due to the medical condition of the patient at the time.

(4B)  [Section 13 Subsection (4B) inserted by No. 68 of 2007, s. 7, Applied:19 Dec 2007] If a sample of blood that is less than the prescribed amount is taken in accordance with subsection (4A) , that smaller sample is to be taken to be sufficient for the purposes of this Act.

(5)  [Section 13 Subsection (5) substituted by No. 94 of 1975, s. 10 ][Section 13 Subsection (5) amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 13 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 13 Subsection (5) amended by No. 17 of 1996, Applied:03 Dec 2007] [Section 13 Subsection (5) substituted by No. 38 of 2017, s. 25, Applied:03 Dec 2018] The sample of blood is to be divided into 3 parts, each part being –

(a) enclosed in a container of a type approved by the Minister by notice in the Gazette; and

(b) labelled in such manner as may be prescribed.

(5A)  [Section 13 Subsection (5A) inserted by No. 94 of 1975, s. 10 ][Section 13 Subsection (5A) omitted by No. 38 of 2017, s. 25, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(5B)  [Section 13 Subsection (5B) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] [Section 13 Subsection (5B) inserted by No. 94 of 1975, s. 10 ]One of the containers containing a part of the sample of the blood is to, as soon as practicable after it has been taken, be tendered to the person from whom it was taken or, if he or she is in custody, to a police officer who was present while it was taken.

(5C)  [Section 13 Subsection (5C) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] [Section 13 Subsection (5C) inserted by No. 94 of 1975, s. 10 ][Section 13 Subsection (5C) amended by No. 44 of 1991, s. 9 ]The containers containing the other 2 parts of the sample of blood is to, within 10 days, be delivered to an approved analyst.

(6)  [Section 13 Subsection (6) amended by No. 38 of 2017, s. 25, Applied:03 Dec 2018] [Section 13 Subsection (6) amended by No. 68 of 2007, s. 7, Applied:19 Dec 2007] [Section 13 Subsection (6) substituted by No. 44 of 1991, s. 9 ]If a sample of blood is taken from a person in accordance with section 12 (1) (person incapable of consenting), a police officer must–

(a) give written notice to the person that the sample was taken; and

(b) tender to the person the part of the sample referred to in subsection (5B) ; and

(c) give written notice to the person that he or she may object to the sample being analysed, but in that case the person will be guilty of an offence under this Act–

as soon as the police officer considers it is practical to do so having regard to the person's physical condition.

(7)  [Section 13 Subsection (7) omitted by No. 94 of 1975, s. 10 ].  .  .  .  .  .  .  .  

(8)  [Section 13 Subsection (8) omitted by No. 94 of 1975, s. 10 ].  .  .  .  .  .  .  .  

(9)  [Section 13 Subsection (9) omitted by No. 94 of 1975, s. 10 ].  .  .  .  .  .  .  .  

13A.   Retention of blood sample during detention in custody

[Section 13A Inserted by No. 94 of 1975, s. 11 ]

(1)  Where a container containing part of a sample of blood is delivered to a police officer as mentioned in section 13 (5B) , it shall be kept in such manner as may be prescribed.

(2)  If the person from whom the sample was taken is released from custody within 24 hours from the time at which the sample was taken, the container shall be tendered to him on his release from custody.

(3)  If the container is not tendered as mentioned in subsection (2) , it shall, on a written request made by or on behalf of the person from whom the sample was taken, be delivered to him, or to such other person at such place within the State as may be specified in the request.

(4)  [Section 13A Subsection (4) omitted by No. 38 of 2017, s. 26, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(5)  [Section 13A Subsection (5) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where for the purposes of subsection (3) a request in writing is made to any person purporting to be signed by an Australian legal practitioner acting for the person from whom the sample was taken, the person to whom the request is made is entitled to assumed that the request is made on behalf of the person from whom the sample was taken.

(6)  [Section 13A Subsection (6) inserted by No. 38 of 2017, s. 26, Applied:03 Dec 2018] Where a request in respect of a sample has not been made under subsection (3) within 60 days after the person from whom the sample was taken was released from custody, the sample is to be destroyed.

13B.   Analysis of blood samples by approved analyst

[Section 13B Inserted by No. 94 of 1975, s. 11 ]

(1)  [Section 13B Subsection (1) amended by No. 38 of 2017, s. 27, Applied:03 Dec 2018] [Section 13B Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where the 2 containers containing parts of the sample of blood are delivered to an approved analyst, the part of the sample contained in one of those containers may be analysed by an approved analyst and the part contained in any other of those containers may not, except as a court may otherwise direct, be so analysed or otherwise dealt with except on request in writing made by or on behalf of the person from whom the sample was taken and an Australian legal practitioner acting on behalf of the Crown.

(2)  [Section 13B Subsection (2) substituted by No. 68 of 1997, s. 7, Applied:01 Mar 1998] [Section 13B Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 13B Subsection (2) substituted by No. 38 of 2017, s. 27, Applied:03 Dec 2018] Where a part of the sample of the blood taken from a person has been analysed under subsection (1) , an approved analyst must ensure a copy of the report of the analysis, within 21 days after the completion of the report –

(a) if the analysis was made on request by, or on behalf of, that person and an Australian legal practitioner as referred to in subsection (1) , is given to the person specified by the Australian legal practitioner in the request; and

(b) if such a request was not made, is provided to a police officer.

(2A)  [Section 13B Subsection (2A) inserted by No. 38 of 2017, s. 27, Applied:03 Dec 2018] If a police officer is provided with a copy of a report under subsection (2)(b) , the police officer is to ensure that a copy of the report is given to the person from whom the sample of the blood was taken.

(3)  [Section 13B Subsection (3) amended by No. 18 of 2005, s. 11, Applied:01 Jul 2005] The report referred to in subsection (2) made in respect of a sample of blood shall state the concentration of alcohol in the part of the sample analysed, expressed in grams of alcohol in 100 millilitres of blood, as determined by that analysis, unless the sample was taken pursuant to an obligation arising under section 7C , 9 or 10A .

(4)  [Section 13B Subsection (4) inserted by No. 68 of 1997, s. 7, Applied:01 Mar 1998] [Section 13B Subsection (4) amended by No. 68 of 2007, s. 8, Applied:19 Dec 2007] [Section 13B Subsection (4) omitted by No. 38 of 2017, s. 27, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

13C.   Analysis of oral fluid samples by approved analyst

[Section 13C Inserted by No. 38 of 2017, s. 28, Applied:03 Dec 2018]

(1)  If a sample of a person's oral fluid is taken for analysis for the purposes of this Act –

(a) the sample is to be taken in accordance with the prescribed requirements and delivered to an approved analyst; and

(b) an approved analyst may analyse the sample.

(2)  If a sample of oral fluid taken from a person has been analysed under subsection (1)(b) , an approved analyst must ensure that a copy of the report of the analysis is provided to a police officer within 21 days after the completion of the report.

(3)  A police officer provided with a copy of a report under subsection (2) is to ensure that a copy of the report is given to the person who provided the sample of oral fluid.

(4)  The report referred to in subsection (2) made in respect of a sample of oral fluid is to state whether or not an illicit drug was present in the part of the sample analysed.

14.   Offences under Division 2

(1)  [Section 14 Subsection (1) substituted by No. 91 of 1982, s. 10 ]Any person who, without reasonable excuse, fails or refuses –

(a) [Section 14 Subsection (1) amended by No. 18 of 2005, s. 12, Applied:01 Jul 2005] [Section 14 Subsection (1) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] to comply with a requirement made to him by a police officer under section 7A(1) , 7C , 8(6) or 8A ;

(b) [Section 14 Subsection (1) amended by No. 18 of 2005, s. 12, Applied:01 Jul 2005] to comply with a direction made to him by a police officer under section 7A (1) , 7B , 8 (5) , or 9 (1) ; or

(c) to comply with section 7A (3) or 8 (7) –

is guilty of an offence.

(1A)  [Section 14 Subsection (1A) amended by No. 68 of 2007, s. 9, Applied:19 Dec 2007] [Section 14 Subsection (1A) inserted by No. 91 of 1982, s. 10 ][Section 14 Subsection (1A) amended by No. 44 of 1991, s. 10 ]Any person who, without reasonable excuse, fails or refuses to comply with a requirement made to him by a police officer under section 10 (1) or section 10A(1) or (1A) is guilty of an offence.

(1B)  [Section 14 Subsection (1B) inserted by No. 91 of 1982, s. 10 ][Section 14 Subsection (1B) substituted by No. 38 of 2017, s. 29, Applied:03 Dec 2018] Any person who is liable to submit to a breath test, oral fluid test, breath analysis, oral fluid analysis or medical examination, or to provide a blood sample, under this Act and who, having been taken into custody –

(a) escapes or attempts to escape from that custody; or

(b) obstructs or hinders his or her conveyance to a place where the test, analysis or examination is to take place –

is guilty of an offence.

(1C)  [Section 14 Subsection (1C) inserted by No. 91 of 1982, s. 10 ][Section 14 Subsection (1C) omitted by No. 38 of 2017, s. 29, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(2)  Any person who, having been directed under section 10 (4) to submit to a breath analysis, fails or refuses, without reasonable excuse, to submit to a breath analysis in accordance with the directions of an approved operator is guilty of an offence.

(2AA)  [Section 14 Subsection (2AA) inserted by No. 68 of 1997, s. 8, Applied:01 Mar 1998] For the purposes of subsection (2) , the fact that a person has a medical or physical condition is not a reasonable excuse for failing or refusing to submit to a breath analysis unless –

(a) that medical or physical condition is, or that person has a further medical or physical condition that is, a reasonable excuse for not having a sample of blood taken; or

(b) [Section 14 Subsection (2AA) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] that person elected instead to the taking of a sample of blood for analysis and made himself or herself available so as to facilitate the taking of the sample within 5 hours after the relevant time but the sample was not taken within that 5-hour period.

(2A)  [Section 14 Subsection (2A) inserted by No. 94 of 1975, s. 12 ][Section 14 Subsection (2A) amended by No. 91 of 1982, s. 10 ]It is a defence in any proceedings for an offence under subsection (2) for the defendant to show –

(a) that he elected to submit to the taking of a sample of his blood for analysis instead of a breath analysis; and

(b) [Section 14 Subsection (2A) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] that the taking of that sample was carried out, or could have been carried out, within 5 hours after the relevant time.

(3)  [Section 14 Subsection (3) substituted by No. 91 of 1982, s. 10 ]Any person who –

(a) [Section 14 Subsection (3) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] having been informed as referred to in section 9 (4) , fails or refuses without reasonable excuse to submit to the taking of a sample of blood; or

(ab) [Section 14 Subsection (3) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] having been directed under section 10 (4) to submit to an oral fluid analysis, fails or refuses, without reasonable excuse, to submit to that analysis; or

(b) having been directed under section 10 (4) to submit to a medical examination, fails or refuses, without reasonable excuse, to submit to that examination or any part of it –

is guilty of an offence.

(4)  [Section 14 Subsection (4) amended by No. 18 of 2005, s. 12, Applied:01 Jul 2005] Any person who, having been directed under section 10 (6) , or required under section 7C , to submit to the taking of a sample of his blood for analysis, fails or refuses without reasonable excuse to submit to the taking of a sample of his blood in accordance with the direction is guilty of an offence.

(5)  [Section 14 Subsection (5) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] A person who, on being notified under section 13 (6) that a sample of his blood has been taken for analysis, objects, without reasonable excuse, to that sample being analysed is guilty of an offence.

(6)  [Section 14 Subsection (6) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] [Section 14 Subsection (6) amended by No. 28 of 2005, s. 12, Applied:01 Feb 2006] [Section 14 Subsection (6) amended by No. 91 of 1982, s. 10 ][Section 14 Subsection (6) substituted by No. 18 of 2005, s. 12, Applied:01 Jul 2005] Any person who, having been required under section 7A (1) , section 7B(1) , section 8 (6) or section 8A(1) , (2) or (3) to undergo a breath test or an oral fluid test, does anything before he or she undergoes that test with intent to alter the concentration of alcohol or a prescribed illicit drug in his or her breath, oral fluid or blood is guilty of an offence.

(7)  [Section 14 Subsection (7) amended by No. 38 of 2017, s. 29, Applied:03 Dec 2018] [Section 14 Subsection (7) amended by No. 28 of 2005, s. 12, Applied:01 Feb 2006] [Section 14 Subsection (7) amended by No. 18 of 2005, s. 12, Applied:01 Jul 2005] [Section 14 Subsection (7) amended by No. 94 of 1975, s. 12 ]Any person who, having become liable to submit to a breath analysis, oral fluid analysis or to the taking of a sample of blood for analysis does anything, before he submits, in pursuance of that liability, to a breath analysis, oral fluid analysis or the taking of a sample of his blood, with intent to alter the concentration of alcohol or a prescribed illicit drug in his breath, oral fluid or blood is guilty of an offence.

(8)  [Section 14 Subsection (8) inserted by No. 38 of 2017, s. 29, Applied:03 Dec 2018] A person is guilty of an offence, if the person –

(a) becomes liable to submit to a breath test, oral fluid test, breath analysis, oral fluid analysis or to the taking of a sample of blood for analysis under this Act; or

(b) is the driver of a vehicle that has been involved in a crash –

and the person consumes an intoxicating liquor or drug, or administers a drug to himself or herself or has a drug administered to himself or herself, before all relevant tests, analyses and examinations have been performed under this Act in respect of the person's liability under this Act, or the crash.

(9)  [Section 14 Subsection (9) inserted by No. 38 of 2017, s. 29, Applied:03 Dec 2018] Subsection (8) does not apply in respect of a drug that was obtained and administered in accordance with the Poisons Act 1971 or was otherwise lawfully obtained and administered.

Division 3 - Supplementary provisions

15.   Identification of offenders

(1)  [Section 15 Subsection (1) amended by No. 38 of 2017, s. 30, Applied:03 Dec 2018] A police officer may require a person to whom a request has been made, or a direction has been given, under Division 2 or whom that officer has reasonable grounds for believing has committed an offence under this Act to state his name, date of birth and the address of his place of abode.

(2)  A person who –

(a) refuses or fails to comply with a requirement made by a police officer under this section; or

(b) in response to any such requirement, furnishes that officer with information that is false –

is guilty of an offence.

(3)  [Section 15 Subsection (3) inserted by No. 68 of 1997, s. 9, Applied:01 Mar 1998] A police officer may arrest without warrant a person who, in response to the requirement of the police officer made under subsection (1)  –

(a) [Section 15 Subsection (3) amended by No. 38 of 2017, s. 30, Applied:03 Dec 2018] refuses or fails to state his or her name, date of birth or the address of his or her place of abode; or

(b) [Section 15 Subsection (3) amended by No. 38 of 2017, s. 30, Applied:03 Dec 2018] states a name, date of birth or an address of a place of abode that the police officer reasonably believes to be false.

16.   Proceedings before magistrate

[Section 16 Substituted by No. 94 of 1975, s. 13 ]Proceedings for an offence under this Act shall be heard by a magistrate sitting alone.

17.   Penalties for drink-driving offences, &c.

[Section 17 Substituted by No. 94 of 1975, s. 14 ][Section 17 Amended by No. 96 of 1976, s. 15 ][Section 17 Amended by No. 13 of 1987, s. 5 ][Section 17 Substituted by No. 44 of 1991, s. 11 ][Section 17 Amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(1)  For the purposes of this section –

(a) the Table means the Table at the end of this section; and

(b) [Section 17 Subsection (1) amended by No. 68 of 2007, s. 10, Applied:19 Dec 2007] [Section 17 Subsection (1) amended by No. 84 of 2009, s. 5, Applied:01 Jan 2010] a person is guilty of a subsequent offence if that person has previously been convicted of an offence under section 4 , section 6 , section 6A(1) or section 14(5) or an offence in respect of a failure to comply with a requirement made under section 10 (4) or section 10A(1) or (1A) .

(2)  The application of this section does not extend to an offence committed before the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991 .

(3)  Subject to subsection (5) , a court that convicts a person of an offence specified in column 1 of the Table –

(a) must –

(i) impose a fine of an amount not less than the minimum amount shown in the Table and not more than the maximum amount shown in the Table; or

(ii) impose a term of imprisonment for a term not exceeding the term shown in the Table; or

(iii) impose both that fine and that term of imprisonment; and

(b) [Section 17 Subsection (3) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] must, in addition, disqualify the person from driving for a period not less than the minimum period shown in the Table and not more than the maximum period shown in the Table.

(3A)  [Section 17 Subsection (3A) inserted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] When a court imposes a disqualification from driving under this section, it must suspend or cancel any Australian driver licence held by the person against whom the disqualification is imposed as required by section 17 of the Vehicle and Traffic Act 1999 .

(3B)  [Section 17 Subsection (3B) inserted by No. 38 of 2017, s. 31, Applied:03 Dec 2018] Section 17(3) of the Vehicle and Traffic Act 1999 does not apply to a suspension or cancellation of an Australian driver licence in accordance with subsection (3A) .

(4)  For the purposes of subsection (3) –

(a) [Section 17 Subsection (4) amended by No. 28 of 2005, s. 13, Applied:01 Feb 2006] the relevant fine, period of disqualification and term of imprisonment for a first offence specified in column 1 of the Table is, in the case of an offence under section 6 , to be ascertained by reference to the concentration of alcohol in the breath or blood of the offender as specified in column 2 of Part 1 of the Table ; and

(b) [Section 17 Subsection (4) amended by No. 28 of 2005, s. 13, Applied:01 Feb 2006] the relevant fine, period of disqualification and term of imprisonment for a subsequent offence is to be ascertained by reference to the concentration of alcohol in the breath or blood of the offender as specified in column 2 of Part 2 of the Table .

(5)  Notwithstanding subsection (3) , if a person who is convicted of an offence referred to in column 1 of the Table satisfies the court which convicted the person that there are special circumstances why the minimum fine specified in the Table or the minimum period of disqualification specified in the Table should not be imposed, the court may impose a lesser fine or a lesser period of disqualification.[Section 17 Subsection (5) amended by No. 28 of 2005, s. 13, Applied:01 Feb 2006] [Section 17 Subsection (5) amended by No. 84 of 2009, s. 5, Applied:01 Jan 2010]

TABLE

		PART 1 - FIRST OFFENCE
Column 1	Column 2	Column 3	Column 4	Column 5
Section of Act or offence	Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood	Fine	Period of disqualification	Term of imprisonment
Section 6 (2)	less than 0·05	Minimum 2 penalty units Maximum 10 penalty units	Minimum 3 months Maximum 12 months	3 months
Section 6	0·05 or more but less than 0·1	Minimum 2 penalty units Maximum 10 penalty units	Minimum 3 months Maximum 12 months	3 months
	0·1 or more but less than 0·15	Minimum 4 penalty units Maximum 20 penalty units	Minimum 6 months Maximum 18 months	6 months
	0·15 or more	Minimum 5 penalty units Maximum 30 penalty units	Minimum 12 months Maximum 36 months	12 months
Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1)		Minimum 5 penalty units Maximum 30 penalty units	Minimum 12 months Maximum 36 months	12 months
Section 6A(1)	Not applicable	Minimum 2 penalty units Maximum 10 penalty units	Minimum 3 months Maximum 12 months	3 months

[Section 17 Subsection (5) amended by No. 28 of 2005, s. 13, Applied:01 Feb 2006] [Section 17 Subsection (5) amended by No. 84 of 2009, s. 5, Applied:01 Jan 2010]

TABLE

		PART 2 - SUBSEQUENT OFFENCE
Column 1	Column 2	Column 3	Column 4	Column 5
Section of Act or offence	Concentration of alcohol in breath in grams per 210 litres of breath or in blood in grams per 100 millilitres of blood	Fine	Period of disqualification	Term of imprisonment
Section 6 (2)	less than 0·05	Minimum 4 penalty units Maximum 20 penalty units	Minimum 6 months Maximum 24 months	6 months
Section 6	0·05 or more but less than 0·1	Minimum 4 penalty units Maximum 20 penalty units	Minimum 6 months Maximum 24 months	6 months
	0·1 or more but less than 0·15	Minimum 8 penalty units Maximum 40 penalty units	Minimum 12 months Maximum 36 months	12 months
	0·15 or more	Minimum 10 penalty units Maximum 60 penalty units	Minimum 24 months Maximum 72 months	24 months
Section 4 or 14 (5) or failure to comply with a requirement made under section 10 (4) or 10A (1)		Minimum 10 penalty units Maximum 60 penalty units	Minimum 24 months Maximum 72 months	24 months
Section 6A(1)	Not applicable	Minimum 4 penalty units Maximum 20 penalty units	Minimum 6 months Maximum 24 months	6 months

17A.   Penalties for other offences

[Section 17A Inserted by No. 44 of 1991, s. 11 ]

(1)  [Section 17A Subsection (1) amended by No. 18 of 2005, s. 13, Applied:01 Jul 2005] A person who is convicted of an offence under this Act, other than an offence referred to in section 6A or section 17 , is liable to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.

(2)  [Section 17A Subsection (2) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] A court that convicts a person of an offence referred to in subsection (1) may, in addition to any penalty imposed under that subsection, order the person to be disqualified from driving for a period not exceeding 3 years.

17B.   

[Section 17B Inserted by No. 44 of 1991, s. 11 ][Section 17B Repealed by No. 68 of 2007, s. 11, Applied:19 Dec 2007] .  .  .  .  .  .  .  .  

18.   

[Section 18 Inserted by No. 83 of 1978, s. 4 ][Section 18 Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 18 Repealed by No. 38 of 2017, s. 32, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

18A.   Traffic infringement notice may be issued in certain circumstances

[Section 18A Inserted by No. 44 of 1991, s. 12 ][Section 18A Subsection (1) amended by No. 28 of 2005, s. 14, Applied:01 Feb 2006] [Section 18A Subsection (1) amended by No. 35 of 2017, s. 16, Applied:19 Sep 2017] [Section 18A Subsection (1) amended by No. 15 of 2000, s. 5, Applied:28 Apr 2000] [Section 18A Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 18A Subsection (1) amended by No. 53 of 1997, Sched. 1, Applied:26 Jun 2000] [Section 18A Subsection (2) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 18A Subsection (3) substituted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] [Section 18A Subsection (4) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 18A Subsection (4) substituted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] [Section 18A Substituted by No. 38 of 2017, s. 32, Applied:03 Dec 2018]

(1)  In this section –

infringement offence means an offence against this Act, or the regulations under this Act, that is prescribed by the regulations to be an infringement offence.

(2)  A police officer may issue and serve an infringement notice on a person if he or she reasonably believes that the person has committed an infringement offence.

(3)  An infringement notice under this section –

(a) is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ; and

(b) is a traffic infringement notice, within the meaning of the Traffic Act 1925 , for the purposes of this or any other Act.

(4)  The regulations may prescribe –

(a) the penalties payable under infringement notices; and

(b) circumstances in which an infringement notice may not be issued in respect of an infringement offence; and

(c) circumstances where a person may be disqualified from driving, and his or her Australian driver licence may be suspended or cancelled, if the person is taken to have been convicted of an infringement offence in accordance with section 20 of the Monetary Penalties Enforcement Act 2005 .

18B.   Immediate disqualification in certain circumstances

[Section 18B Inserted by No. 68 of 2007, s. 12, Applied:19 Dec 2007]

(1)  [Section 18B Subsection (1) amended by No. 38 of 2017, s. 33, Applied:03 Dec 2018] If a police officer forms a belief on reasonable grounds that a person has –

(aa) [Section 18B Subsection (1) amended by No. 38 of 2017, s. 33, Applied:03 Dec 2018] committed an offence under section 4; or

(a) committed an offence under section 6 where it is alleged that the concentration of alcohol in the person's blood or breath (as the case requires) was –

(i) if the person holds a full licence or a foreign driver licence –

(A) 0.15 grams or more per 100 millilitres of blood; or

(B) 0.15 grams or more per 210 litres of breath; or

(ii) if the person does not hold a full licence or a foreign driver licence or holds a learner licence or provisional licence –

(A) 0.07 grams or more per 100 millilitres of blood; or

(B) 0.07 grams or more per 210 litres of breath; or

(b) committed an offence that would be a subsequent offence within the meaning of section 17(1)(b) if the person were convicted; or

(c) [Section 18B Subsection (1) amended by No. 38 of 2017, s. 33, Applied:03 Dec 2018] failed or refused to submit to a breath analysis, oral fluid analysis or to the taking of a sample of blood for analysis –

an approved operator may, as soon as practicable after that belief has been formed, issue a notice in the name of the person, known as a road safety disqualification notice.

(2)  On the issue of a notice under subsection (1) , a police officer is to give the notice to the person named in it.

(3)  [Section 18B Subsection (3) substituted by No. 38 of 2017, s. 33, Applied:03 Dec 2018] If a road safety disqualification notice is given to a person –

(a) if he or she holds a restricted driver licence, that restricted driver licence is suspended; or

(b) in any other case, he or she is disqualified from driving.

(4)  [Section 18B Subsection (4) substituted by No. 38 of 2017, s. 33, Applied:03 Dec 2018] A road safety disqualification notice must specify –

(a) if the accused holds a restricted driver licence, the fact that his or her licence is suspended due to the road safety disqualification notice; or

(b) in any other case, the fact that the accused is disqualified from driving and the period of that disqualification in accordance with subsection (5) .

(5)  [Section 18B Subsection (5) amended by No. 38 of 2017, s. 33, Applied:03 Dec 2018] A person to whom a road safety disqualification notice is given is disqualified from driving pursuant to that notice until the sooner of the following:

(a) the charge has been determined by a court;

(b) the expiration of the minimum period after the notice is given, set out in Column 4 of the Table in section 17  –

(i) that corresponds to the breath or blood alcohol concentration in Column 2 of that Table that is stated in the notice; or

(ii) in the case of an offence against section 4 or 14(5) or failure to comply with a requirement made under section 10 (4) or section 10A(1) or (1A) , that corresponds to the reference to that offence or failure in Column 1 of that Table.

(6)  If, on the subsequent hearing of the charge, the accused is disqualified from driving, the court must take into account in fixing the period of disqualification the period of disqualification served under this section.

(7)  [Section 18B Subsection (7) inserted by No. 38 of 2017, s. 33, Applied:03 Dec 2018] If a person is given a road safety disqualification notice and he or she holds a restricted driver licence –

(a) the licence is suspended under subsection (3)(a) as soon as the person is given the road safety disqualification notice; and

(b) the provisions of the Vehicle and Traffic Act 1999 , other than section 17(3) of that Act, apply in respect of the suspension.

18C.   Commencement of period of disqualification

[Section 18C Inserted by No. 68 of 2007, s. 12, Applied:19 Dec 2007] A period of disqualification takes effect –

(a) [Section 18C Amended by No. 38 of 2017, s. 34, Applied:03 Dec 2018] if the person is not subject to a current period of disqualification, licence suspension or ineligibility to hold a driver licence as a result of the accumulation of demerit points, as soon as the person is given the road safety disqualification notice; or

(b) if, at the time of being given the notice, the person is subject to a current period of disqualification, licence suspension or ineligibility to hold a driver licence as a result of the accumulation of demerit points, on the expiration of that period of disqualification, suspension or ineligibility.

18D.   Cancellation of road safety disqualification notice

[Section 18D Inserted by No. 68 of 2007, s. 12, Applied:19 Dec 2007]

(1)  [Section 18D Subsection (1) amended by No. 38 of 2017, s. 35, Applied:03 Dec 2018] The Commissioner of Police may cancel a road safety disqualification notice by notifying (in writing) the person to whom the notice was given.

(2)  If the Commissioner of Police cancels a notice, he or she must cause a copy of the cancellation to be sent immediately to the Registrar of Motor Vehicles who must give effect to the cancellation.

(3)  [Section 18D Subsection (3) amended by No. 38 of 2017, s. 35, Applied:03 Dec 2018] If a person is disqualified from driving, in accordance with a road safety disqualification notice, and is before a court for any reason in relation to the alleged offence, the court may make an order cancelling the notice if it is satisfied that the person would suffer severe and unusual hardship if the order were not made or that, having regard to the public interest and any special circumstances of the case, it is appropriate to do so.

(4)  An order of the Magistrates Court under subsection (3) is final and conclusive and must be given effect to by the Registrar of Motor Vehicles.

18E.   Appeal against road safety disqualification notice

[Section 18E Inserted by No. 68 of 2007, s. 12, Applied:19 Dec 2007]

(1)  A person to whom a notice is given under section 18B(1) may appeal against that notice to the Magistrates Court on the ground that the notice will cause the person severe and unusual hardship or that there are other special circumstances as to why the notice should not have been given.

(2)  A person who appeals under subsection (1) must, at least 14 days before the appeal is to be heard by the court, give written notice of the appeal (including particulars of the alleged severe and unusual hardship or other special circumstances) to the Commissioner of Police and a registrar of the Magistrates Court.

(3)  In determining the appeal, the court must hear any relevant evidence tendered by the applicant or by the Commissioner of Police.

(4)  On an appeal under subsection (1) , the court may make an order –

(a) confirming the notice; or

(b) cancelling the notice.

(5)  The Magistrates Court must not make an order under subsection (4) cancelling a notice unless it is satisfied that the applicant would suffer severe and unusual hardship if the order were not made or that it is appropriate to do so because of other special circumstances.

19.   Special hardship orders

[Section 19 Substituted by No. 94 of 1975, s. 15 ]

(1)  [Section 19 Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (1) amended by No. 96 of 1976, s. 15 ][Section 19 Subsection (1) substituted by No. 44 of 1991, s. 13 ]Except as provided by this section, section 18 of the Vehicle and Traffic Act 1999 applies to the conviction of a person for an offence under this Act as it would apply if that offence were an offence under that Act.

(1A)  [Section 19 Subsection (1A) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (1A) inserted by No. 44 of 1991, s. 13 ]No order is to be made under section 18 of the Vehicle and Traffic Act 1999 in respect of a conviction for an offence under this Act if–

(a) [Section 19 Subsection (1A) amended by No. 68 of 1997, s. 10, Applied:01 Mar 1998] the offence was committed during any period of disqualification or within 3 years after the end of any period of disqualification imposed under this Act; or

(b) [Section 19 Subsection (1A) amended by No. 28 of 2005, s. 15, Applied:01 Feb 2006] the offence was under section 6 where the offender had alcohol in his or her breath or blood of a concentration equal to or greater than 0·15 of a gram of alcohol in 210 litres of breath or equal to or greater than 0·15 of a gram of alcohol in 100 millilitres of blood; or

(c) the offence was under section 4 ; or

(d) the offence was under section 14 (5) ; or

(e) [Section 19 Subsection (1A) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (1A) amended by No. 18 of 2005, s. 14, Applied:01 Jul 2005] except in the case of an offence against section 6A , the offender was the holder of a learner licence or a provisional licence; or

(ea) [Section 19 Subsection (1A) amended by No. 68 of 1997, s. 10, Applied:01 Mar 1998] [Section 19 Subsection (1A) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (1A) amended by No. 18 of 2005, s. 14, Applied:01 Jul 2005] [Section 19 Subsection (1A) amended by No. 38 of 2017, s. 36, Applied:03 Dec 2018] except in the case of an offence against section 6A , at the time of the offence the offender was not authorised under an Australian driver licence to drive the vehicle in respect of which the offence was committed or cannot satisfy the court that he or she would, but for an unintentional failure to comply with an administrative requirement within the preceding 6-month period, have been so authorised to drive that vehicle at that time; or

(f) [Section 19 Subsection (1A) amended by No. 53 of 1997, Sched. 1, Applied:26 Jun 2000] the offender was driving a prescribed vehicle at the time of the offence; or

(g) the offence was in respect of a failure to comply with a requirement made under section 10 (4) or 10A (1) .

(1B)  [Section 19 Subsection (1B) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (1B) inserted by No. 44 of 1991, s. 13 ]If an order is made under section 18 of the Vehicle and Traffic Act 1999 in respect of a conviction for an offence under this Act, the Court may increase the period of disqualification from driving remaining at the time the order is made by an amount not exceeding the period so remaining.

(1C)  [Section 19 Subsection (1C) inserted by No. 44 of 1991, s. 13 ]The application of subsections (1A) and (1B) does not extend to an offence committed before the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 1991 .

(2)  [Section 19 Subsection (2) amended by No. 30 of 2021, s. 9, Applied:01 Mar 2022] [Section 19 Subsection (2) amended by No. 38 of 2017, s. 36, Applied:03 Dec 2018] [Section 19 Subsection (2) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19 Subsection (2) amended by No. 96 of 1976, s. 15 and Sched. II ]Without prejudice to the generality of the provisions of section 18(5)(c) of the Vehicle and Traffic Act 1999 it shall be deemed to be contrary to the public interest to make an order authorizing the granting of a restricted driver licence to a person suffering from alcohol dependency, and the court may refuse to make such an order in respect of a person who is disqualified from driving as a consequence of a conviction of an offence under this Act, section 41 of the Traffic Act 1925 or section 53 of the Vehicle and Traffic Act 1999 unless the court is satisfied on the evidence of a medical practitioner approved by the court that that person is not so suffering from alcohol dependency.

(3)  For the purposes of subsection (2) , a report in writing purporting to be signed by a medical practitioner may be received in evidence without proof of the signature of the medical practitioner; but the court may in any case require him to be called to give oral evidence.

(4)  Where, in pursuance of the directions of the court, any such report as is referred to in subsection (3) is tendered in evidence, otherwise than by or on behalf of the person on whom it is made, then –

(a) if that person is represented by counsel, a copy of the report shall be given to his counsel;

(b) if he is not so represented, the substance of the report shall be disclosed to him; and

(c) in any case, he, or the person by whom he is represented, may require the medical practitioner by whom the report is signed to be called to give oral evidence.

(5)  The court may order that the person on whom a report is made by a medical practitioner for the purposes of this section shall pay the whole or a portion of the costs of the report and the examination on which it is made, to the extent that those costs exceed such sum as may be prescribed, and shall specify in that order the person to whom those costs are to be paid; and that order has the like effect as if that person on whom the report was made and the person to whom the costs are ordered to be paid were respectively defendant and complainant in proceedings before the court.

19A.   Driving while disqualified under this Act

[Section 19A Inserted by No. 94 of 1975, s. 15 ]

(1)  [Section 19A Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19A Subsection (1) amended by No. 96 of 1976, s. 15 and Sched. II ][Section 19A Subsection (1) amended by No. 15 of 1979, s. 2 ][Section 19A Subsection (1) amended by No. 91 of 1982, s. 11 ]A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under section 18 of the Vehicle and Traffic Act 1999 , drives a motor vehicle while he is disqualified from driving under this Act is guilty of an offence.

Penalty:  [Section 19A Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] In the case of –

(a) a first offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and

(b) a second or subsequent offence – a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court.

(2)  [Section 19A Subsection (2) inserted by No. 15 of 1979, s. 2 ][Section 19A Subsection (2) amended by No. 91 of 1982, s. 11 ][Section 19A Subsection (2) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19A Subsection (2) substituted by No. 38 of 2017, s. 37, Applied:03 Dec 2018] A person who drives a motor vehicle while his or her licence is suspended under section 18B(3)(a) is guilty of an offence.

Penalty:  In the case of –

(a) a first offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and

(b) a second or subsequent offence – a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court.

(3)  [Section 19A Subsection (3) inserted by No. 15 of 1979, s. 2 ][Section 19A Subsection (3) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19A Subsection (3) omitted by No. 38 of 2017, s. 37, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(4)  [Section 19A Subsection (4) added by No. 15 of 1979, s. 2 ][Section 19A Subsection (4) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 19A Subsection (4) omitted by No. 38 of 2017, s. 37, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

19B.   

[Section 19B Repealed by No. 33 of 1976, s. 2 ].  .  .  .  .  .  .  .  

20.   Concurrent offences not treated separately

[Section 20 Substituted by No. 94 of 1975, s. 16 ][Section 20 Amended by No. 96 of 1976, s. 15 and Sched. II ][Section 20 Amended by No. 18 of 2005, s. 15, Applied:01 Jul 2005] [Section 20 Amended by No. 38 of 2017, s. 38, Applied:03 Dec 2018] Where arising from his driving a vehicle on any particular occasion a person is convicted of 2 or more offences, being offences under section 4 , section 6 or section 6A or under section 41 of the Traffic Act 1925 or section 53 of the Vehicle and Traffic Act 1999 , those convictions shall for the purposes of this Division be treated as one single conviction.

21.   Avoidance of certain provisions in contracts of insurance

[Section 21 Amended by No. 94 of 1975, s. 17 ]Any covenant, term, condition, or other provision of a contract or other agreement to the extent that it purports to exclude or limit the liability of an insurer under any contract of insurance in the event of the owner or driver of a motor vehicle –

(a) being convicted of an offence under this Act (not being an offence under section 4 ); or

(b) [Section 21 Amended by No. 28 of 2005, s. 16, Applied:01 Feb 2006] [Section 21 Amended by No. 25 of 2006, Sched. 2, Applied:23 Dec 2006] [Section 21 Amended by No. 38 of 2017, s. 39, Applied:03 Dec 2018] having more than a specified concentration of alcohol present in his breath or blood as indicated by an analysis of his breath or blood –

is void.

21A.   Prohibited analysis of blood or oral fluid

[Section 21A Inserted by No. 38 of 2017, s. 40, Applied:03 Dec 2018]

(1)  A sample of blood or oral fluid taken according to the provisions of this Act –

(a) may only be used in relation to offences committed against this Act; and

(b) may not be used for the purposes of identification by DNA analysis.

(2)  A person is guilty of an offence if he or she intentionally or recklessly –

(a) supplies a sample of blood taken in accordance with this Act, or causes or permits a sample to be supplied, to a person for prohibited analysis; or

(b) carries out, or causes or permits to be carried out, a prohibited analysis of a sample of blood taken in accordance with this Act; or

(c) includes, or causes or permits the inclusion of, information derived from a prohibited analysis on a DNA database.

(3)  For the purposes of this section –

DNA database includes –

(a) a DNA database system within the meaning of the Forensic Procedures Act 2000 ; and

(b) a database containing DNA data that is kept under a law of this, or any other, jurisdiction; and

(c) such other database, or class of databases, as is prescribed;

prohibited analysis, in relation to a sample of blood, means analysis of the sample for a purpose other than a purpose for which the sample is permitted to be used under this Act.

PART III - Evidentiary provisions

Division 1 - Evidence in certain criminal proceedings

22.   Application of Division 1

(1)  [Section 22 Subsection (1) amended by No. 18 of 1974, s. 7 ][Section 22 Subsection (1) substituted by No. 68 of 1997, s. 11, Applied:01 Mar 1998] This Division applies to any proceedings in respect of any crime or offence specified in subsection (2) if one or more of the following matters is relevant to the proceedings:

(a) whether a person was or was not under the influence, or the extent to which a person was under the influence, of intoxicating liquor at the time of the commission of the crime or offence;

(b) [Section 22 Subsection (1) amended by No. 28 of 2005, s. 17, Applied:01 Feb 2006] the concentration of alcohol in the breath or blood of a person at the time of the commission of the crime or offence;

(c) [Section 22 Subsection (1) amended by No. 18 of 2005, s. 16, Applied:01 Jul 2005] [Section 22 Subsection (1) amended by No. 38 of 2017, s. 41, Applied:03 Dec 2018] whether or not a person failed or refused to submit to a breath analysis or oral fluid analysis;

(d) [Section 22 Subsection (1) amended by No. 18 of 2005, s. 16, Applied:01 Jul 2005] [Section 22 Subsection (1) amended by No. 38 of 2017, s. 41, Applied:03 Dec 2018] the presence of a prescribed illicit drug in a person's oral fluid or blood at the time of the commission of the crime or offence.

(2)  [Section 22 Subsection (2) amended by No. 67 of 1976, s. 9 ]The following crimes and offences are the crimes and offences referred to in subsection (1) , that is to say:

(a) the crime of manslaughter arising out of the driving of a motor vehicle;

(ab) the crime of causing death by dangerous driving;

(b) an offence under this Act;

(ba) [Section 22 Subsection (2) amended by No. 104 of 2001, s. 8, Applied:05 Dec 2001] an offence under section 12 of the Vehicle and Traffic Act 1999 ;

(c) [Section 22 Subsection (2) amended by No. 15 of 2000, s. 5, Applied:28 Apr 2000] an offence under section 32 of the Traffic Act 1925 .

(3)  [Section 22 Subsection (3) inserted by No. 38 of 2017, s. 41, Applied:03 Dec 2018] Nothing in this Division prevents one or more certificates under this Division from being issued as a single document.

23.   Statutory presumptions with respect to breath analyses and blood tests, &c.

(1)  [Section 23 Subsection (1) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018] [Section 23 Subsection (1) substituted by No. 94 of 1975, s. 18 ]In any proceedings to which this Division applies, the concentration of alcohol in a sample of blood taken from a person in accordance with this Act shall be deemed to be the actual concentration of alcohol in his blood at the time at which the sample was taken, unless the contrary is proved.

(2)  [Section 23 Subsection (2) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006] [Section 23 Subsection (2) substituted by No. 94 of 1975, s. 18 ]In any proceedings to which this Division applies, the concentration of alcohol in the breath of a person as determined by a breath analysis that was properly carried out shall be deemed to be the actual concentration of alcohol in the breath of that person at the time at which he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his breath at the time was not greater than the prescribed concentration.

(3)  Where, in any proceedings to which this Division applies, there is a conflict between the evidence referred to in subsection (1) and that referred to in subsection (2) the former evidence shall prevail.

(4)  [Section 23 Subsection (4) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018] [Section 23 Subsection (4) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006] [Section 23 Subsection (4) amended by No. 91 of 1982, s. 12 ]Where in any proceedings for an offence under section 6 (1) it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 6 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his breath or blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his breath or blood at the time of that act of driving was not greater than the prescribed concentration.

(5)  [Section 23 Subsection (5) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018] [Section 23 Subsection (5) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006] [Section 23 Subsection (5) amended by No. 91 of 1982, s. 12 ]Where in any proceedings for an offence under section 6 (2) it is shown that a person who became liable to submit to a breath analysis had alcohol in his breath or blood at any time within 6 hours after the relevant time it shall be presumed, unless the contrary is proved, that he had alcohol in his breath or blood at the time of the relevant act of driving.

(6)  [Section 23 Subsection (6) amended by No. 38 of 2017, s. 42, Applied:03 Dec 2018] [Section 23 Subsection (6) amended by No. 28 of 2005, s. 18, Applied:01 Feb 2006] [Section 23 Subsection (6) amended by No. 91 of 1982, s. 12 ]Where in any proceedings to which this Division applies (other than proceedings for an offence under section 6 ), it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 6 hours after the relevant time, equal to or not less than a particular concentration, it shall be presumed, unless the contrary is proved, that the concentration of alcohol in the breath or blood of that person at the time of the relevant act of driving was not less than that particular concentration.

(7)  For the purposes of this section a breath analysis is properly carried out if it is carried out by means of a breath analysing instrument in proper working order operated by an approved operator in the manner prescribed.

(7A)  [Section 23 Subsection (7A) inserted by No. 38 of 2017, s. 42, Applied:03 Dec 2018] Where in any proceedings for an offence under this Act, a person has submitted to a breath analysis but has declined or refused a request under this Act to submit to a sample of blood being taken in respect of the same offence, the person may not rebut a statutory presumption, within this section, in respect of the breath analysis.

(8)  [Section 23 Subsection (8) amended by No. 91 of 1982, s. 12 ]For the purposes of this section, relevant act of driving, in relation to a person against whom proceedings to which this Division applies are brought, means the act of driving alleged to be an ingredient of the crime or offence with which the person is charged in those proceedings.

23A.   Statutory presumptions with respect to prescribed illicit drugs

[Section 23A Amended by No. 38 of 2017, s. 43, Applied:03 Dec 2018] [Section 23A Inserted by No. 18 of 2005, s. 17, Applied:01 Jul 2005] Where in any proceedings for an offence under section 6A it is shown that a prescribed illicit drug was present in the person's oral fluid or blood at any time within 6 hours after the relevant time, it is presumed, unless the contrary is proved, that he or she had the illicit drug in his or her oral fluid or blood at the relevant time.

24.   Restrictions on admission of evidence of breath analysis

(1)  [Section 24 Subsection (1) amended by No. 28 of 2005, s. 19, Applied:01 Feb 2006] [Section 24 Subsection (1) amended by No. 91 of 1982, s. 13 ]Evidence of the concentration of alcohol in the breath of a person as determined by a breath analysing instrument is not admissible in evidence in any proceedings to which this Division applies, unless–

(a) such a statement as is referred to in section 11 was read over to him and handed to him on the completion of the analysis; and

(b) if he made such a request as is referred to in subsection (3) of that section–

(i) [Section 24 Subsection (1) amended by No. 38 of 2017, s. 44, Applied:03 Dec 2018] a sample of his blood was taken by a qualified person in accordance with this Act and the taking of that sample began within 5 hours after the relevant time; or

(ii) he refused to submit to the taking of a sample of his blood after appropriate arrangements had been made under that section in response to that request.

(2)  [Section 24 Subsection (2) amended by No. 28 of 2005, s. 19, Applied:01 Feb 2006] Where the statement referred to in subsection (1) (a) indicates that the concentration of alcohol in the breath of the person submitting to the breath analysis, as determined by that analysis, exceeded the prescribed concentration, the statement shall be in such form as to draw his attention to his right to make the request referred to in section 11 (3) .

(3)  [Section 24 Subsection (3) amended by No. 83 of 1978, s. 5 ]Without prejudice to the foregoing provisions of this section, in proceedings against a person for an offence under section 6 (2) such evidence as is referred to in subsection (1) is inadmissible unless either –

(a) the statement referred to in subsection (1) (a) is in such a form as to draw the attention of that person to his right to make such a request as is referred to in section 11 (3) ; or

(b) that person, before the statement was read over to him, represented to the approved operator by whom the analysis was carried out that he was not a person referred to in section 6 (3) or did not, on inquiry made to him by the operator, inform the operator that he was such a person.

25.   Evidence as to carrying out of breath analysis

(1)  [Section 25 Subsection (1) amended by No. 38 of 2017, s. 45, Applied:03 Dec 2018] [Section 25 Subsection (1) amended by No. 91 of 1982, s. 14 ]Where in any proceedings to which this Division applies evidence is given by any person–

(a) that at a specified time and place he carried out a breath analysis of a person by means of a breath analysing instrument;

(b) that he was at that time at which that breath analysis was carried out, an approved operator;

(c) that at that time the instrument was in proper working order; and

(d) that in carrying out the analysis he operated that instrument in the prescribed manner–

that evidence is admissible in those proceedings and is prima facie evidence of the particulars so stated and of the fact that, at the time the analysis was carried out, the instrument was in proper working order.

(2)  [Section 25 Subsection (2) amended by No. 38 of 2017, s. 45, Applied:03 Dec 2018] [Section 25 Subsection (2) amended by No. 91 of 1982, s. 14 ]In any proceedings to which this Division applies a certificate certifying–

(a) that the person named therein submitted to a breath analysis carried out by the person by whom the certificate purports to have been signed;

(b) that, at the time the breath analysis was carried out, the person by whom the certificate purports to have been signed was an approved operator;

(c) that the apparatus used by him to carry out the breath analysis was a breath analysing instrument within the meaning of this Act and that that instrument was in proper working order;

(d) that, in carrying out the analysis, he operated the instrument in the prescribed manner;

(e) that the analysis was made on the day and completed at the time stated in the certificate;

(f) [Section 25 Subsection (2) amended by No. 28 of 2005, s. 20, Applied:01 Feb 2006] that the concentration of alcohol, expressed in grams of alcohol in 210 litres of breath, as determined by the analysis to be present in the breath of the person who submitted thereto, is that specified in the certificate; and

(g) that the statement required by section 11 to be read over to that person and handed to him, was so read over to and handed to him–

is admissible in those proceedings and is prima facie evidence of those particulars.

25A.   Evidence of matters related to refusal to submit to breath analysis

[Section 25A Inserted by No. 94 of 1975, s. 19 ]

(1)  [Section 25A Subsection (1) amended by No. 38 of 2017, s. 46, Applied:03 Dec 2018] Where in any proceedings to which this Division applies evidence is given by any person–

(a) that at a specified time and place the person named therein failed or refused to submit to a breath analysis;

(b) [Section 25A Subsection (1) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that at that time and place a breath analysis could have been properly carried out by the person by means of a breath analysing instrument that he then had with him;

(c) that at that time a breath analysing instrument was in proper working order; and

(d) [Section 25A Subsection (1) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that at that time the person was an approved operator–

that evidence is admissible in those proceedings and is prima facie evidence of the facts so stated.

(2)  [Section 25A Subsection (2) amended by No. 38 of 2017, s. 46, Applied:03 Dec 2018] In any proceedings to which this Division applies a certificate stating–

(a) [Section 25A Subsection (2) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that at a particular time and place the person named therein was directed by the person by whom the certificate purports to be signed to submit to a breath analysis;

(b) that the person so named then failed or refused to submit to a breath analysis in accordance with the direction;

(c) that at that time and place a breath analysis could have been properly carried out by the person by whom the certificate purports to have been signed by means of a breath analysing instrument he then had with him;

(d) that at that time that breath analysing instrument was in proper working order; and

(e) [Section 25A Subsection (2) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that at that time the person by whom the certificate purports to be signed informed the person named in the certificate that he or she could elect to submit to the taking of a sample of blood for analysis instead of submitting to a breath analysis;

(f) [Section 25A Subsection (2) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that the person named in the certificate did not so elect to submit to the taking of a sample of blood for analysis; and

(g) [Section 25A Subsection (2) amended by No. 68 of 1997, s. 12, Applied:01 Mar 1998] that at that time the person by whom the certificate purports to be signed was an approved operator –

is admissible in those proceedings and is prima facie evidence of the particulars contained in the certificate.

26.   Certificates and records of approved analyst and approved operators

[Section 26 Amended by No. 38 of 2017, s. 47, Applied:03 Dec 2018] In any proceedings to which this Division applies–

(a) [Section 26 Amended by No. 38 of 2017, s. 47, Applied:03 Dec 2018] a certificate purporting to be a certificate signed by an approved analyst in accordance with regulations under this Act containing any particulars relating to a breath analysing instrument required to be contained therein under those regulations; and

(b) any record purporting to be a record kept by an approved operator in accordance with those regulations containing any particulars relating to the performance by that operator of his functions under this Act–

is admissible in those proceedings and is prima facie evidence of those particulars.

27.   Certificate in relation to taking of blood samples

(1)  [Section 27 Subsection (1) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] In any proceedings to which this Division applies a certificate–

(a) [Section 27 Subsection (1) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] stating that, on the day and at the time stated in the certificate, the person by whom the certificate purports to be signed took a sample of the blood of the person named therein;

(b) [Section 27 Subsection (1) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] stating that when that sample was so taken the person by whom the certificate purports to be signed was a qualified person; and

(c) containing particulars of the manner in which the sample was taken or of any action taken by that person consequent upon, or in relation to, the taking of that sample–

is admissible in those proceedings and is prima facie evidence of the particulars contained in the certificate.

(2)  [Section 27 Subsection (2) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] [Section 27 Subsection (2) added by No. 94 of 1975, s. 20 ]In any proceedings to which this Division applies a certificate–

(a) [Section 27 Subsection (2) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] stating that a container containing a part of a sample of blood taken from the person named in the certificate was kept at a particular place during a particular period;

(b) containing particulars of the manner in which it was so kept;

(c) stating that the person from whom the sample was taken was detained in custody during a particular period, and specifying the place at which he was so kept in custody;

(d) stating the time at which the container was delivered to any person and containing particulars of the request pursuant to which it was so delivered; and

(e) stating that the person by whom the certificate purports to be signed was a police officer at the time the container was kept as mentioned in the certificate–

is admissible in those proceedings and is prima facie evidence of the particulars stated in the certificate.

(3)  [Section 27 Subsection (3) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] [Section 27 Subsection (3) added by No. 94 of 1975, s. 20 ]In any proceedings to which this Division applies a certificate–

(a) [Section 27 Subsection (3) amended by No. 38 of 2017, s. 48, Applied:03 Dec 2018] stating that at a particular time and place a container containing a part of a sample of blood was delivered by the person by whom the certificate purports to be signed to the person named in the certificate and stated therein to be an approved analyst, or a person authorised by an approved analyst to receive the sample;

(b) containing particulars with respect to the container or any label or marks thereon;

(c) containing particulars with respect to the manner in which it was kept or otherwise dealt with before being so delivered; and

(d) stating that the person by whom it was so delivered was at that time a police officer–

is admissible in those proceedings and is prima facie evidence of the matters stated in the certificate.

27A.   Certificate in relation to taking of certain oral fluid samples

[Section 27A Inserted by No. 20 of 2020, s. 17, Applied:28 Sep 2020]

(1)  In any proceedings to which this Division applies, a certificate –

(a) stating that, on the day and at the time stated in the certificate, the person by whom the certificate purports to be signed took a sample of the oral fluid of the person named therein for the purpose of oral fluid analysis; and

(b) stating that, when that sample was so taken, the person by whom the certificate purports to be signed was an approved operator; and

(c) containing particulars of the manner in which the sample was taken or of any action taken by that person consequent upon, or in relation to, the taking of that sample –

is admissible in those proceedings and is prima facie evidence of the particulars contained in the certificate.

(2)  In any proceedings to which this Division applies, a certificate –

(a) stating that, at a particular time and place, a container containing a part of a sample of oral fluid was delivered, by the person by whom the certificate purports to be signed –

(i) to the person named in the certificate and stated therein to be an approved analyst; or

(ii) to a person authorised by an approved analyst to receive the sample; and

(b) containing particulars with respect to the container or any label or marks thereon; and

(c) containing particulars with respect to the manner in which it was kept or otherwise dealt with before being so delivered; and

(d) stating that the person by whom it was so delivered was at that time a police officer –

is admissible in those proceedings and is prima facie evidence of the matters stated in the certificate.

28.   Certificates of analysis of blood samples

[Section 28 Substituted by No. 94 of 1975, s. 21 ][Section 28 Amended by No. 27 of 1991, s. 5 and Sched. 1 ][Section 28 Amended by No. 38 of 2017, s. 49, Applied:03 Dec 2018] In any proceedings to which this Division applies a certificate containing–

(a) [Section 28 Amended by No. 38 of 2017, s. 49, Applied:03 Dec 2018] particulars of the result of an analysis of a sample of blood carried out by, or under the supervision of, the person by whom the certificate is purported to be signed; and

(b) particulars with respect to the container in which the sample was received by him, and any label or markings thereon–

and stating that at the time the analysis was carried out he was an approved analyst, is admissible in those proceedings and is prima facie evidence of the particulars set forth in the certificate.

28A.   Certificates of analysis of oral fluid samples

[Section 28A Inserted by No. 38 of 2017, s. 50, Applied:03 Dec 2018] In any proceedings to which this Division applies, a certificate containing –

(a) particulars of the result of an analysis of a sample of oral fluid carried out by, or under the supervision of, the person by whom the certificate is purported to be signed; and

(b) particulars with respect to the container in which the sample was received, and any label or markings thereon –

and stating that at the time when the analysis was carried out he or she was an approved analyst, is admissible in those proceedings and is prima facie evidence of the particulars set forth in the certificate.

29.   Limitation on tendering of certificates, &c., in evidence

(1)  No certificate or record referred to in the foregoing provisions of this Division shall be tendered in evidence by, or on behalf of, any party to any proceedings unless, at least 14 days, or such lesser period as the court may approve, before the hearing of the proceedings, a copy thereof was served on the other party to the proceedings.

(1AA)  [Section 29 Subsection (1AA) inserted by No. 38 of 2017, s. 51, Applied:03 Dec 2018] If a report has been provided under section 13B(2)(a) , 13B(2A) or 13C(3) to a person, the provision of that report under that section is taken to be service for the purposes of subsection (1) .

(1A)  [Section 29 Subsection (1A) inserted by No. 94 of 1975, s. 22 ]Where such a certificate or record as is referred to in subsection (1) is endorsed with a certificate of service purporting to be signed by a person by whom a copy of that certificate or record was served, that certificate of service is prima facie evidence of the particulars stated therein.

(1B)  [Section 29 Subsection (1B) inserted by No. 38 of 2017, s. 51, Applied:03 Dec 2018] A certificate of service referred to in subsection (1A) may relate to more than one certificate or document referred to in subsection (1) .

(2)  [Section 29 Subsection (2) substituted by No. 91 of 1982, s. 15 ][Section 29 Subsection (2) amended by No. 27 of 1991, s. 5 and Sched. 1 ]Subject to this section, a certificate or record referred to in subsection (1) may be tendered in evidence in proceedings to which this Division applies whether or not the person by whom the certificate or record was signed or made, or any person who, under the supervision of that first-mentioned person, was involved with the analysis to which the certificate or record relates is called as a witness in those proceedings.

(2A)  [Section 29 Subsection (2A) inserted by No. 91 of 1982, s. 15 ][Section 29 Subsection (2A) amended by No. 27 of 1991, s. 5 and Sched. 1 ]Where a person by whom a certificate or record referred to in subsection (1) was signed or made, or any person who, under the supervision of that first-mentioned person, was involved with the analysis to which the certificate or record relates is called by the defendant as a witness in proceedings to which this Division applies, that person may be cross-examined by the defendant as to the facts or matters set out in that certificate or record.

(3)  In any proceedings to which this Division applies no evidence shall be given by or on behalf of any person of the result of the analysis of a sample of his blood that was taken otherwise than in pursuance of a request or direction made under this Act unless, at least 4 days, or such lesser period as the court may approve, before the hearing, notice has been given in writing to the prosecutor or his agent stating the intention to give that evidence.

(4)  [Section 29 Subsection (4) inserted by No. 38 of 2017, s. 51, Applied:03 Dec 2018] For the purposes of this section, service has the same meaning as in the Acts Interpretation Act 1931 .

29A.   Section 177A of the Evidence Act 2001 not to apply

[Section 29A Inserted by No. 27 of 1991, s. 5 and Sched. 1 ][Section 29A Amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] Section 177A of the Evidence Act 2001 does not apply in relation to any certificate or record referred to in this Division.

29B.   Certificate as to alcohol dependency

[Section 29B Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] [Section 29B Inserted by No. 68 of 1997, s. 13, Applied:01 Mar 1998] A certificate purporting to be signed by a medical practitioner or person of a class prescribed for the purposes of section 6(4)(c)(ii) and certifying that the person named in it is not alcohol-dependent is evidence of the matters contained in it.

Division 2 - Restriction on use of certain evidence

30.   Evidence as to analyses, &c., inadmissible in certain proceedings

(1)  [Section 30 Subsection (1) amended by No. 18 of 2005, s. 18, Applied:01 Jul 2005] Except as is otherwise expressly provided in this Act the fact that a person has been convicted of an offence under section 6 , section 6A or section 14 is not admissible as evidence in any legal proceedings that that person was, at any time, drunk, or under the influence of intoxicating liquor or a prescribed illicit drug, or incapable of driving, or of exercising effective control over, a motor vehicle.

(2)  [Section 30 Subsection (2) amended by No. 38 of 2017, s. 52, Applied:03 Dec 2018] Notwithstanding anything in this or any other Act where a person, on being notified under section 13 (6) that a sample of his blood has been taken for analysis, objects to the sample being analysed, no evidence as to the analysis is admissible in any legal proceedings to which he is a party.

(2A)  [Section 30 Subsection (2A) amended by No. 38 of 2017, s. 52, Applied:03 Dec 2018] [Section 30 Subsection (2A) inserted by No. 18 of 2005, s. 18, Applied:01 Jul 2005] The fact that a prescribed illicit drug has been detected in a person's oral fluid or blood in accordance with this Act is not admissible as evidence in any legal proceedings against the person under the Forensic Procedures Act 2000 or in respect of an offence against Division 3 of Part 3 of the Misuse of Drugs Act 2001 , but is admissible in respect of an offence against Part 2 , or Division 4 of Part 3, of the Misuse of Drugs Act 2001 and may be taken into account in consideration of an application for a search warrant under the Search Warrants Act 1997 .

(3)  [Section 30 Subsection (3) amended by No. 83 of 1978, s. 6 ]The provisions of this section have effect notwithstanding any covenant, term, condition, or provision of, or contained in any contract of insurance, and any such covenant, term, condition, or provision therein is, to the extent that the operation of this section is excluded, limited, modified, or restricted, void.

(4)  References in this section to legal proceedings shall be construed as references to all legal proceedings, whether civil, criminal, or arbitral.

PART IV - Supplementary provisions

30A.   Costs of tests, analyses or examinations

[Section 30A Inserted by No. 38 of 2017, s. 53, Applied:03 Dec 2018] Except as otherwise provided under this Act, a court may, in the case of a conviction for an offence under this Act –

(a) assess the reasonable costs of –

(i) testing, analysing or examining a sample of breath, oral fluids or blood used as part of proceedings for the offence; and

(ii) if applicable, the attendance as part of those proceedings of the person who performed the test, analysis or examination if he or she is required to attend to give evidence; and

(b) award either or both of those costs against the defendant.

31.   Regulations

[Section 31 Amended by No. 83 of 1978, s. 7 ][Section 31 Amended by No. 44 of 1991, s. 14 ][Section 31 Substituted by No. 25 of 2006, Sched. 2, Applied:23 Dec 2006]

(1)  The Governor may make regulations under this Act and, in addition to any other purposes for which those regulations may be made, any such regulations may –

(a) [Section 31 Subsection (1) amended by No. 38 of 2017, s. 54, Applied:03 Dec 2018] prescribe the functions of an approved analyst in relation to the matters mentioned in section 3(4) ;

(b) prescribe the manner in which breath analysing instruments are to be tested, maintained, or used and the operations to be undertaken, or the precautions to be observed, in relation thereto;

(c) [Section 31 Subsection (1) amended by No. 38 of 2017, s. 54, Applied:03 Dec 2018] impose duties on approved operators in relation to the maintenance, testing, or use of breath analysing instruments and require them to comply with instructions given by an approved analyst in relation to any matter prescribed in relation thereto;

(d) require the making and keeping of records in relation to the maintenance, testing, or use of breath analysing instruments;

(e) prescribe the qualifications to be possessed by, or the training to be undergone, by police officers who are authorized by the Commissioner of Police to operate breath analysing instruments;

(f) prescribe the manner in which samples of blood are to be taken for the purposes of this Act, whether in relation to the nature or amount of the blood so taken or otherwise;

(g) [Section 31 Subsection (1) amended by No. 38 of 2017, s. 54, Applied:03 Dec 2018] prescribe the fees to be paid to qualified persons in respect of the taking of samples of blood, or the carrying out of medical examinations, for the purposes of this Act; and

(h) require the issue of certificates with respect to any test carried out on a breath analysing instrument and prescribe the particulars to be contained in any such certificate; and

(i) [Section 31 Subsection (1) amended by No. 38 of 2017, s. 54, Applied:03 Dec 2018] .  .  .  .  .  .  .  .  

(2)  If the Related Act expressly or impliedly provides, a regulation made pursuant to subsection (1) for in respect of any provision or matter under this Act may also be used and have application for the purposes of a corresponding provision or matter under the Related Act and, to that end, the regulation may, if necessary or expedient, be modified or adapted so as to enable the regulation to have such use or application.

(3)  The regulations may be made so as to apply differently according to such factors as are specified in the regulations.

(4)  [Section 31 Subsection (4) amended by No. 38 of 2017, s. 54, Applied:03 Dec 2018] The regulations may authorise any matter to be from time to time determined by the Commissioner of Police or an approved analyst.

(5)  In this section –

Related Act means the Marine Safety (Misuse of Alcohol) Act 2006 .

32.   Protection from liability

[Section 32 Inserted by No. 38 of 2017, s. 55, Applied:03 Dec 2018]

(1)  A police officer acting in good faith is not liable for any of the following that may result from the moving, or impounding, of a vehicle in accordance with this Act:

(a) damage to the vehicle;

(b) depreciation in the value of the vehicle;

(c) loss of use of the vehicle;

(d) loss of the vehicle.

(2)  A police officer, or the Crown, is not liable for any damage, loss or depreciation in respect of a vehicle while it is being driven, towed or transported to, or impounded at, a holding yard as a result of this Act.

33.   Destruction of samples

[Section 33 Inserted by No. 38 of 2017, s. 55, Applied:03 Dec 2018]

(1)  A sample of blood, or oral fluid, that has been taken for the purposes of this Act is to be destroyed 24 months after the sample was taken unless otherwise prescribed.

(2)  For the avoidance of doubt, this section applies to all samples whether taken before or after the commencement of the Road Safety (Alcohol and Drugs) Amendment Act 2017 .

34.   Savings and transitionals

[Section 34 Inserted by No. 38 of 2017, s. 55, Applied:03 Dec 2018]

(1)  In this section –

amending Act means the Road Safety (Alcohol and Drugs) Amendment Act 2017 .

(2)  For the purposes of this and any other Act, if, before the day on which section 5 of the amending Act commences, apparatus of a type was approved by the Governor as a breath analysing instrument by notice in the Gazette and that approval had not been revoked, apparatus of that type is taken, on and after that day, to be apparatus of a type approved by the Minister as a breath analysing instrument by notice in the Gazette.

(3)  For the purposes of this and any other Act, if, before the day on which section 6 of the amending Act commences, a person is an approved analyst, or a supervising analyst, under this Act, that person is taken, on and after that day, to be an approved analyst appointed by the Minister under this Act on the same terms and conditions.

(4)  For the purposes of this and any other Act, if, before the day on which section 33 of the amending Act commences, an excessive drink-driving notice has been issued, and is in force, under section 18B of this Act, that notice is taken, on and after that day, to be a road safety disqualification notice issued, and in force, under that section on the same terms and conditions.

SCHEDULE 1

Section 11

SCHEDULE 2 - Consequential Amendments

Section 32

The amendments effected by this Schedule have been incorporated into the authorised version of the following Acts:

(a) Evidence Act 1910 ;

(b) Traffic Act 1925 .