Road Safety (Drug Driving) 2003 (Vic)

Road Safety (Drug Driving) Act 2003

ts	Act No. 111/2003
n
e
m	TABLE OF PROVISIONS

u Section Page

c	1.	Purpose	1
o	2.	Commencement	1
D	3.	Principal Act	2
ry	4.	Definitions	2
5.	Purposes of Part 5	3
ta	6.	Interpretative provisions	3
7.	New offences involving drugs	4
n	8.	Provisions about cancellation and disqualification	6
e	9.	Direction to impose alcohol interlock condition	7
m	10.	Driver education programs	7
ia	11.	Preliminary testing stations	7
rl	12.	Breath analysis	8
13.	New sections 55D and 55E inserted	8
a	55D.	Preliminary oral fluid tests	8
P	55E.	Oral fluid testing and analysis	10

14. Evidentiary provisions—blood tests 18

d	15.	Evidentiary provisions—urine tests	18
n	16.	New section 57B inserted	19
a	57B.	Evidentiary provisions—oral fluid tests	19
n	17.	Evidentiary provisions—breath tests	24
o	18.	New section 58B inserted	24
ti	58B.	Prohibited analysis	24
la	19.	Power to prevent driving by incapable persons	25
20.	Drug-driving infringements	26
is	21.	Supreme Court—limitation of jurisdiction	27
g	22.	Regulations	27
e	23.	Sunsetting of drug-driving provisions	27

L ═══════════════

n	ENDNOTES	31
a
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i

ts
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c
o	Victoria
D
ry
ta
n	No. 111 of 2003
e
m
ia
rl	Road Safety (Drug Driving) Act 2003†
a	[Assented to 9 December 2003]
P
d
n
a
n	The Parliament of Victoria enacts as follows:
o
ti
la	1. Purpose
is	The main purpose of this Act is to amend the
g	Road Safety Act 1986 to provide for random
e	drug testing for drivers and create new offences
L	for failing a drug test.
n
a
ri

2. Commencement

(1) Subject to sub-section (2), this Act (except

to	section 23) comes into operation on a day or days
ic	to be proclaimed.
V
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(2) If a provision of this Act (other than section 23)

does not come into operation before 1 December

ts	2004, it comes into operation on that day.
n	(3) Section 23 comes into operation on 1 July 2005.
e	3. Principal Act

m	See:	In this Act, the Road Safety Act 1986 is called
u	Act No.
c	127/1986.	the Principal Act.
o	Reprint No. 7 as at
D	19 June 2002
and
ry	amending Act Nos
ta	19/1991, 46/2002 and
n	44/2003.
e	LawToday:
m	dpc.vic.
ia
rl
gov.au

4. Definitions

a	(1) In section 3(1) of the Principal Act insert the
P	following definitions—
d
n	' "drug-driving infringement" means an offence
a	under section 49(1)(bb), (h) or (i), other than an accompanying driver offence, in
n
o	circumstances where the offence is a first
ti	offence having regard to the provisions of
la	section 48(2) or would, because of section
is	50AA, be treated as a first offence for the purposes of sub-section (1), (1A), (1AB),
g
e	(1B) or (1E) of section 50;
L	"prescribed concentration of drugs" means, in
n	the case of a prescribed illicit drug, any
a	concentration of the drug present in the
ri	blood or oral fluid of that person;
to	"prescribed illicit drug" means—
ic	(a) methylamphetamine; or
V
(b) delta-9-tetrahydrocannabinol;'.

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(2) In paragraph (b) of the definition of "drink-driving infringement" in section 3(1) of the Principal Act, for "sub-sections (1), (1A), (1AB) and (1B)"

ts	substitute "sub-section (1), (1A), (1AB), (1B)
n	or (1E)".
e

(3) In the definition of "traffic infringement" in

m

u	section 3(1) of the Principal Act, after paragraph
c	(e) insert—
o	"(f) a drug-driving infringement; or".
D

5. Purposes of Part 5

ry

ta	In section 47 of the Principal Act—
n	(a) in paragraph (c), for "alcohol." substitute
e	"alcohol; and";
m	(b) after paragraph (c) insert—
ia
rl	"(d) provide a simple and effective means of establishing the presence of a drug in
a	the blood, urine or oral fluid of a
P	driver.".
d
n	6. Interpretative provisions
a	(1) After section 48(1)(ab) of the Principal Act
n	insert—
o
ti	"(ac) if it is established that at any time within
la	3 hours after an alleged offence against
is	paragraph (bb) of section 49(1), a certain
g	drug was present in the blood or oral fluid of
e	the person charged with the offence it must
L	be presumed, until the contrary is proved,
n	that that drug was present in the person's
a	blood or oral fluid at the time at which the
ri	offence is alleged to have been committed;
to	and".
ic
V

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(2) After section 48(1A) of the Principal Act insert—

"(1B) For the purposes of an alleged offence

ts	against paragraph (h) or (i) of section 49(1) it
n	must be presumed that a drug found by an
e	analyst to be present in the sample of blood
m	or oral fluid provided by, or taken from, the
u	person charged was not due solely to the
c	consumption or use of that drug after driving
o	or being in charge of a motor vehicle unless
D	the contrary is proved by the person charged
ry	on the balance of probabilities by sworn
evidence given by him or her which is
ta	corroborated by the material evidence of
n	another person.".
e

7. New offences involving drugs

m

ia	(1) After section 49(1)(ba) of the Principal Act
rl	insert—
a	"(bb) drives a motor vehicle or is in charge of a
P	motor vehicle while the prescribed
d	concentration of drugs or more than the
n	prescribed concentration of drugs is present
a	in his or her blood or oral fluid; or".
n	(2) After section 49(1)(ea) of the Principal Act
o
ti	insert—
la	"(eb) refuses to provide a sample of oral fluid in
is	accordance with section 55D or 55E when
g	required under that section to do so or
e	refuses to comply with any other
L	requirement made under that section; or".
n	(3) In section 49(1)(g) of the Principal Act—
a
ri	(a) for "or 56" substitute ", 55B, 55E or 56";
to	(b) in sub-paragraph (ii), for "motor vehicle."
ic	substitute "motor vehicle; or".
V

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(4) After section 49(1)(g) of the Principal Act

insert—

ts	"(h) within 3 hours after driving or being in
n	charge of a motor vehicle provides a sample
e	of oral fluid in accordance with section 55E
m	and—
u	(i) the sample has been analysed by a
c	properly qualified analyst within the
o	meaning of section 57B and the analyst
D	has found that at the time of analysis a
ry	prescribed illicit drug was present in
ta	that sample in any concentration; and
n	(ii) the presence of the drug in that sample
e	was not due solely to the consumption
m	or use of that drug after driving or
ia	being in charge of the motor vehicle; or
rl	(i) has had a sample of blood taken from him or
a	her in accordance with section 55, 55B, 55E
P	or 56 within 3 hours after driving or being in
d	charge of a motor vehicle and—
n
a	(i) the sample has been analysed by a properly qualified analyst within the
n
o	meaning of section 57 and the analyst
ti	has found that at the time of analysis a
la	prescribed illicit drug was present in
is	that sample in any concentration; and
g	(ii) the presence of the drug in that sample
e	was not due solely to the consumption
L	or use of that drug after driving or
n	being in charge of the motor vehicle.".
a
ri	(5) After section 49(3) of the Principal Act insert—
to	"(3AAA) A person who is guilty of an offence under
ic	paragraph (bb), (h) or (i) of sub-section (1),
other than an accompanying driver offence,
V	is liable—

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(a) in the case of a first offence, to a fine of not more than 6 penalty units; and

ts	(b)	in the case of a subsequent offence, to a
n	fine of not more than 12 penalty units.".

e	(6) In section 49(5) of the Principal Act, for "(g)"
m	substitute "(g), (h) or (i)".
u
c	(7) After section 49(6) of the Principal Act insert—
o	"(6A) In any proceedings for an offence under
D	paragraph (h) or (i) of sub-section (1)
ry	evidence as to the effect of the consumption
ta	or use of a drug on the defendant is
admissible for the purpose of rebutting the
n	presumption created by section 48(1B) but is
e	otherwise inadmissible.".
m
ia
rl

(8) After section 49(8) of the Principal Act insert—

"(9) If on a prosecution for an offence under

a	paragraph (ba) of sub-section (1), the court is
P	not satisfied that the defendant is guilty of
d	that offence but is satisfied that the defendant
n	is guilty of an offence under paragraph (bb)
a	of that sub-section, the court may find the
n	defendant guilty of an offence under
o	paragraph (bb) and punish the defendant
ti	accordingly.".
la	8. Provisions about cancellation and disqualification
is	(1) After section 50(1D) of the Principal Act insert—
g
e	"(1E) On convicting a person, or finding a person
L	guilty of an offence under section 49(1)(bb),
n	(h) or (i), the court may, if the offender holds
a
ri	a driver licence or permit, cancel that licence
or permit and, whether or not the offender
to	holds a driver licence or permit, disqualify
ic	the offender from obtaining one for such
V	period as the court thinks fit, not being more than—

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(a) in the case of a first offence, 3 months; and

ts	(b)	in the case of a subsequent offence,
n	6 months.".

e	(2) In column 1 of the Table in section 50AA of the
m	Principal Act, for "and (1B)" substitute ", (1B)
u	and (1E)".
c
o	9. Direction to impose alcohol interlock condition
D	After section 50AAA(3) of the Principal Act
ry	insert—
ta	"(4) For the purposes of this section, in
n	determining whether an offence referred to
e	in sub-section (1)(a) was or was not a first
m	offence, any previous conviction or finding
ia	of guilt of the person of an offence under
rl	section 49(1)(a) (involving only drugs) or of
a	an offence under section 49(1)(ba), (bb), (h)
P	or (i) is to be disregarded, despite section 48(2).".
d
n	10. Driver education programs
a

(1) In section 50A(1A) of the Principal Act—

n

(a) after "(ba)," insert "(bb),";

o
ti

(b) for "or (ea)" substitute ", (ea), (h) or (i)".

la

is	(2) In section 50A(2) of the Principal Act—
g	(a) after "(b)," insert "(bb),";
e
L	(b) for "or (g)" substitute ", (g), (h) or (i)".
n	11. Preliminary testing stations
a
ri	(1) In section 53(1)(b) of the Principal Act, omit
to	"breath".
ic	(2) Insert the following heading to section 54 of the

Principal Act—

V

"Preliminary testing stations".
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(3) In section 54(1), (2), (3) and (4) of the Principal Act, for "breath testing" substitute "testing".

ts	(4) In section 54(2)(a) of the Principal Act, for "in
n	quick succession" substitute "or preliminary oral
e	fluid tests".
m	(5) In section 55A(1)(b) of the Principal Act, omit
u	"breath".
c
o	12. Breath analysis
D	In section 55(1), (2) and (2AA)(a) of the Principal
ry	Act, after "has furnished the sample of breath"
ta	insert "and any further sample required to be
furnished under sub-section (2A)".
n
e	13. New sections 55D and 55E inserted
m	After section 55C of the Principal Act insert—
ia
rl	'55D. Preliminary oral fluid tests
a	(1) A member of the police force may at any
P	time require—
d	(a) any person he or she finds driving a
n	motor vehicle or in charge of a motor
a	vehicle; or
n
o	(b) the driver of a motor vehicle that has
ti	been required to stop at a preliminary
la	testing station under section 54(3); or
is	(c) any person who he or she believes on
g	reasonable grounds has within the last
e	3 preceding hours driven or been in
L	charge of a motor vehicle when it was
n	involved in an accident; or
a

ri	(d)	any person who he or she believes on
to	reasonable grounds was, within the last
3 preceding hours, an occupant of a
ic	motor vehicle when it was involved in
V	an accident, if it has not been established to the satisfaction of the

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member of the police force which of
the occupants was driving or in charge

of the motor vehicle when it was

ts	involved in the accident—
n
e	to undergo a preliminary oral fluid test by a
m	prescribed device and, for that purpose, may
u	further require the person, if inside a motor
c	vehicle, to leave the motor vehicle for the
o	purpose of undergoing the test.
D	(2) An officer of the Corporation or of the
ry	Department of Infrastructure who is
ta	authorised in writing by the Corporation or
the Secretary, as the case requires, for the
n
e	purposes of this section may at any time require any person he or she finds driving a
m
ia	commercial motor vehicle or in charge of a
rl	commercial motor vehicle to undergo a
preliminary oral fluid test by a prescribed
a	device and, for that purpose, may further
P	require the person, if inside a motor vehicle,
d	to leave the motor vehicle for the purpose of
n	undergoing the test.
a

(3) A preliminary oral fluid test must be carried

n

o	out in accordance with the prescribed
ti	procedure.
la	(4) The Corporation or the Secretary may only
is	authorise an officer for the purposes of this
g	section if satisfied that the officer has the
e	appropriate training to carry out a
L	preliminary oral fluid test in accordance with
n	the prescribed procedure.
a
ri	(5) A prescribed device may be comprised of a
to	collection unit and a testing unit and one or
more other parts.
ic
V

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(6) A person required to undergo a preliminary

oral fluid test must do so by placing the
prescribed device, or the collection unit of

ts	the device, into his or her mouth and
n	chewing or sucking on it until the member of
e	the police force or the officer of the
m	Corporation or of the Department of
u	Infrastructure (as the case requires) is
c
o	satisfied that a sufficient sample of oral fluid
D	has been captured by the device or unit.
ry	(7) Without limiting section 54(3), a person

required to undergo a preliminary oral fluid

ta	test is required to remain at the place at
n	which the test is being carried out until the
e	sample of oral fluid provided has been tested
m	by a prescribed device.
ia
rl	(8) A person is not obliged to undergo a

preliminary oral fluid test if more than

a	3 hours have passed since the person last
P	drove, was an occupant of or was in charge
d	of a motor vehicle.
n
a	55E. Oral fluid testing and analysis
n	(1) In this section—
o
ti	"authorised officer" means a member of
la	the police force or an officer of the
Corporation or of the Department of
is	Infrastructure authorised in writing
g
e	under sub-section (6) by the Chief
L	Commissioner of Police, the Corporation or the Secretary, as the
n
a	case requires, for the purposes of this
ri	section;
to	"enforcement officer" means an officer of
ic	the Corporation or of the Department of
Infrastructure authorised under section
V	55D(2) for the purposes of section 55D.

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(2) If a person undergoes a preliminary oral fluid

test when required to do so under section
55D by a member of the police force or an

ts	enforcement officer and—
n
e	(a) the test, in the opinion of the member
m	or enforcement officer in whose
u	presence it is made, indicates that the
c	person's oral fluid contains a prescribed
o	illicit drug; or
D	(b) the person, in the opinion of the
ry	member or enforcement officer, refuses
ta	or fails to carry out the test in the
manner specified in section 55D(6)—
n
e	any member of the police force or, if the
m	requirement for the preliminary oral fluid
ia	test was made by an enforcement officer, any
rl	member of the police force or any
a	enforcement officer may require the person
P	to provide a sample of oral fluid for testing
d	by a prescribed device and, if necessary,
n	analysis by a properly qualified analyst
a	within the meaning of section 57B and for
n	that purpose may further require the person
o	to accompany any member of the police
ti	force or, if the requirement for the
la	preliminary oral fluid test was made by an
is	enforcement officer, any member of the
police force or any enforcement officer to a
g
e	place or vehicle where the sample is to be
L	provided and to remain there until—
n	(c) the person has provided the sample and
a
ri	any further sample required to be
provided under sub-section (5), the
to	sample has been tested by a prescribed
ic	device and the person has been given
V	(if necessary) a part of the sample under sub-section (11) and complied

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with any requirement made of him or

her under section 59; or

ts	(d)	3 hours after the driving, being an
n	occupant of or being in charge of the
e	motor vehicle—

m	whichever is the sooner.
u
c	Example
o	A person may be required to go to a police station, a
D	public building, a booze bus or a police car to provide a sample of oral fluid under this section.
ry	(3) A member of the police force may require
ta	any person who is required to undergo an
n	assessment of drug impairment under section
e	55A or to furnish a sample of breath for
m	analysis by a breath analysing instrument
ia	under section 55 to provide a sample of oral
rl	fluid for testing by a prescribed device and,
a	if necessary, analysis by a properly qualified
P	analyst within the meaning of section 57B
d	and may, for that purpose, require the person
n	to remain at the place at which the person is
a	required to remain for the purposes of the
n	assessment or furnishing the sample of
o
ti
breath until—

(a) the person has provided the sample of

la	oral fluid and any further sample
is	required to be provided under sub-
g	section (5), the sample has been tested
e	by a prescribed device and the person
L	has been given (if necessary) a part of
n	the sample under sub-section (11) and
a
ri	complied with any requirement made of him or her under section 59 and the
to	assessment has been carried out or the
ic	sample of breath has been furnished (as
V	the case requires); or

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(b) 3 hours after the driving, being an occupant of or being in charge of the

ts	motor vehicle—
n	whichever is the sooner.
e	(4) The provision of a sample of oral fluid under
m	this section must be carried out in
u	accordance with the prescribed procedure.
c
o	(5) The person who required a sample of oral
D	fluid to be provided under sub-section (2) or (3) may require the person who provided it
ry	to provide one or more further samples if it
ta	appears to him or her that the prescribed
n	device is incapable of testing for the
e	presence in the sample, or each of the
m	samples, previously provided of a prescribed
ia	illicit drug because the amount of sample
rl	provided was insufficient or because of a
a	power failure or malfunctioning of the
P	device or for any other reason whatsoever. (6) Only a member of the police force or an
d
n	officer of the Corporation or of the
a	Department of Infrastructure authorised in
n	writing by the Chief Commissioner of
o
ti	Police, the Corporation or the Secretary, as
the case requires, for the purposes of this
la	section may carry out the procedure for the
is	provision of a sample of oral fluid under this
g	section.
e	(7) The Chief Commissioner of Police may only authorise a member of the police force, and
L
n
a	the Corporation or the Secretary may only
ri	authorise an enforcement officer, for the
to	purposes of this section if satisfied that the
member or officer (as the case requires) has
ic	the appropriate training to carry out the
V	prescribed procedure for the provision of a sample of oral fluid under this section.

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(8) A prescribed device may be comprised of a

collection unit and a testing unit and one or

ts	more other parts.
n	(9) A person required to provide a sample of
e	oral fluid under this section must do so by
m	placing the prescribed device, or the
u	collection unit of the device, into his or her
c	mouth and chewing or sucking on it until the
o	authorised officer is satisfied that a sufficient
D	sample of oral fluid has been captured by the
ry	device or unit.
ta	(10) A person is not obliged to provide a sample

of oral fluid under this section if more than

n

e	3 hours have passed since the person last drove, was an occupant of or was in charge
m	of a motor vehicle.
ia
rl	(11) If a test by a prescribed device of a sample of
a	oral fluid provided under this section
P	indicates, in the opinion of the authorised
d	officer who carried out the procedure in the
n	course of which the sample was provided,
a	that the person's oral fluid contains a
n	prescribed illicit drug, the authorised officer
o	must deliver a part of the sample to the
ti	member of the police force or the
la	enforcement officer who required the sample
is	to be provided and another part to the person by whom the sample was provided.
g
e	(12) A person must not be convicted or found
L	guilty of refusing to provide a sample of oral
n	fluid in accordance with this section if he or
a
ri	she satisfies the court that there was some
reason of a substantial character for the
to	refusal, other than a desire to avoid
ic	providing information which might be used
V	against him or her.

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(13) The person who required a sample of oral

fluid to be provided under sub-section (2) or
(3) may require that person to allow a

ts	registered medical practitioner or an
n	approved health professional nominated by
e	the person who required the sample to take
m	from him or her a sample of that person's
u	blood for analysis if it appears to him or her
c
o	that—

D	(a)	that person is unable to furnish the
ry	required sample of oral fluid on
medical grounds or because of some
ta	physical disability or condition; or

n	(b) the prescribed device is incapable of testing for the presence in the sample of
e
m
ia	a prescribed illicit drug for any reason
rl	whatsoever—
a	and for that purpose may further require that
P	person to accompany a member of the police
d	force to a place where the sample of blood is
n	to be taken and to remain there until the
a	sample has been taken or until 3 hours after
n	the driving, being an occupant of or being in
o	charge of the motor vehicle, whichever is the
ti	sooner.
la	(14) The registered medical practitioner or
is	approved health professional who takes a
g	sample of blood under sub-section (13) must
e	deliver a part of the sample to the person
L	who required it to be taken and another part
n	to the person from whom it was taken.
a
ri	(15) A person who allows the taking of a sample
to	of his or her blood in accordance with sub-
section (13) must not be convicted or found
ic	guilty of refusing to provide a sample of oral
V	fluid in accordance with this section.

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(16) A person must not hinder or obstruct a

registered medical practitioner or an
approved health professional attempting to

ts	take a sample of the blood of any other
n	person in accordance with sub-section (13).
e
Penalty:  Penalty applying to this sub-
m
u	section: 12 penalty units.
c	(17) No action lies against a registered medical
o	practitioner or an approved health
D	professional in respect of anything properly
ry	and necessarily done by the practitioner or
ta	approved health professional in the course of
taking any sample of blood which the
n
e	practitioner or approved health professional believed on reasonable grounds was allowed
m	to be taken under sub-section (13).
ia
rl	(18) A person who is required under this section
a	to provide a sample of oral fluid may,
P	immediately after being given a part of the
d	sample under sub-section (11), request the
n	person making the requirement to arrange for
a	the taking in the presence of any member of
n	the police force (or, if the requirement for the
o	provision of the sample was made by an
ti	enforcement officer, any member of the
la	police force or any enforcement officer) of a
is	sample of that person's blood for analysis at that person's own expense by a registered
g
e	medical practitioner or an approved health
L	professional nominated by the member of the police force or the enforcement officer in
n
a
ri
whose presence the sample is taken.

(19) A part of a sample of blood taken under sub-

to	section (18) must be delivered to the person
ic	who required the oral fluid sample to be
V	provided under this section.

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(20) Nothing in sub-section (18) relieves a person

from any penalty under section 49(1)(eb) for

ts	refusing to provide a sample of oral fluid.
n	(21) Evidence derived from a sample of oral fluid
e	provided in accordance with a requirement
m	made under this section is not rendered
u	inadmissible by a failure to comply with a
c	request under sub-section (18) if reasonable
o	efforts were made to comply with the
D	request.
ry	(22) In any proceeding under this Act—

ta	(a)	the statement of any officer of the
n	Corporation or of the Department of
e	Infrastructure that on a particular date
m	he or she was authorised under section
ia	55D(2) for the purposes of section 55D;
rl	or

a	(b) a certificate purporting to be issued by
P	the Corporation or signed by the
d	Secretary, as the case requires,
n	certifying that a particular officer of the
a	Corporation or of the Department of
n	Infrastructure named in it is authorised
o
ti	under section 55D(2) for the purposes
of section 55D; or
la	(c) the statement of any member of the
is	police force or officer of the
g
e	Corporation or of the Department of
L	Infrastructure that on a particular date he or she was authorised under sub-
n
a	section (6) for the purposes of this
ri	section; or

to	(d)	a certificate purporting to be signed by
ic	the Chief Commissioner of Police,
issued by the Corporation or signed by
V	the Secretary, as the case requires,

Road Safety (Drug Driving) Act 2003

s. 14

Act No. 111/2003

certifying that a particular member of
the police force or officer of the

Corporation or of the Department of

ts	Infrastructure named in it is authorised
n	under sub-section (6) for the purposes
e	of this section—
m
u	is admissible in evidence and, in the absence
c	of evidence to the contrary, is proof of the
o	authority of that officer or member.'.
D	14. Evidentiary provisions—blood tests
ry	(1) In section 57(9) of the Principal Act, after "55B"
ta	insert ", 55E(13)".
n	(2) After section 57(9) of the Principal Act insert—
e

"(9A) Without limiting section 56(6), evidence of a

m

ia	kind permitted to be given by sub-section (2)
rl	in legal proceedings of a kind referred to in
a	sub-section (2)(a), (ab), (b), (c) or (d) is
P	inadmissible as evidence in any other legal proceedings except proceedings for the
d
n	purposes of the Accident Compensation
a	Act 1985 or the Transport Accident Act 1986.".
n
o	15. Evidentiary provisions—urine tests
ti
la	(1) In section 57A(1) of the Principal Act, after the
is	definition of "approved expert" insert—
g	' "prescribed legal proceeding" means—
e	(a) a trial for murder or manslaughter or
L	for negligently causing serious injury
n	arising out of the driving of a motor
a
ri	vehicle; or
to	(b) a trial or hearing for an offence against

Subdivision (4) of Division 1 of Part I

ic	of the Crimes Act 1958 arising out of
V	the driving of a motor vehicle; or

Road Safety (Drug Driving) Act 2003

s. 16

Act No. 111/2003

(c) a trial or hearing for an offence against section 318(1) of the Crimes Act 1958;

ts	or
n	(d) a hearing for an offence against
e	section 49(1) of this Act; or
m	(e) any proceedings conducted by a
u	coroner;'.
c
o	(2) In section 57A(2) of the Principal Act, for "on a
D	hearing for an offence against section 49(1)"
ry	substitute "in a prescribed legal proceeding".
ta	(3) After section 57A(10) of the Principal Act

insert—

n

e	"(11) Evidence of a kind permitted to be given by
m	sub-section (2) in a prescribed legal
ia	proceeding is inadmissible as evidence in
rl	any other legal proceedings.".
a	16. New section 57B inserted
P

After section 57A of the Principal Act insert—

d

n	'57B. Evidentiary provisions—oral fluid tests
a	(1) In this section—
n
o	"approved analyst" means a person who
ti	has been approved by Order of the
la	Governor in Council published in the
is	Government Gazette as a properly
g	qualified analyst for the purposes of
e	this section;
L	"properly qualified analyst" means—
n	(a) an approved analyst; or
a
ri	(b) a person who is considered by the
to	court hearing the charge for the
ic	offence to have scientific
qualifications, training and
V	experience that qualifies him or

Road Safety (Drug Driving) Act 2003

s. 16

Act No. 111/2003

her to carry out the analysis and to
express an opinion as to the facts

and matters contained in a

ts	certificate under sub-section (4).
n
e	(2) If a question as to the presence of a
m	prescribed illicit drug in the body of a person
u	at any time is relevant—
c	(a) on a trial for murder or manslaughter or
o	for negligently causing serious injury
D	arising out of the driving of a motor
ry	vehicle; or

ta	(b)	on a trial or hearing for an offence
n	against Subdivision (4) of Division 1 of
e	Part I of the Crimes Act 1958 arising
m	out of the driving of a motor vehicle; or

ia	(c) on a trial or hearing for an offence
rl	against section 318(1) of the Crimes
a	Act 1958; or
P

(d) on a hearing for an offence against

d

n section 49(1) of this Act; or

a	(e)	in any proceedings conducted by a
n	coroner—
o

ti	then, without affecting the admissibility of
la	any evidence which might be given apart
from the provisions of this section, evidence
is	may be given—
g
e	(f) of the providing by that person, after
L	that person drove or was in charge of a
n	motor vehicle, of a sample of oral fluid
a
ri
under section 55E;

(g) of the analysis of that sample of oral

to	fluid by a properly qualified analyst
ic	within twelve months after it was taken;
V

Road Safety (Drug Driving) Act 2003

s. 16

Act No. 111/2003

(h) of the presence of a prescribed illicit drug in that sample of oral fluid at the

ts	time of analysis.
n	(3) A certificate containing the prescribed
e	particulars purporting to be signed by the
m	person who carried out the procedure in the
u	course of which the sample of oral fluid was
c	provided is admissible in evidence in any
o	hearing referred to in sub-section (2) and, in
D	the absence of evidence to the contrary, is
ry	proof of the facts and matters contained in it.
ta	(4) A certificate containing the prescribed

particulars purporting to be signed by an

n

e	approved analyst as to the presence in any sample of oral fluid analysed by the analyst
m
ia	of a substance that is a prescribed illicit drug
rl	is admissible in evidence in any hearing
referred to in sub-section (2) and, in the
a	absence of evidence to the contrary, is proof
P	of the facts and matters contained in it.
d	(5) A certificate given under this section must
n
a	not be tendered in evidence at a hearing
n	referred to in sub-section (2) without the
o	consent of the accused unless a copy of the
ti	certificate is proved to have been served on
la	the accused more than 10 days before the
is	evidence. day on which the certificate is tendered in
g
e	(6) A copy of a certificate given under this
L	section may be served on the accused by—
n	(a) delivering it to the accused personally;
a
ri	or

to	(b)	leaving it for the accused at his or her
ic	last or most usual place of residence or
of business with a person who
V	apparently resides or works there and

Road Safety (Drug Driving) Act 2003

s. 16

Act No. 111/2003

who apparently is not less than 16 years

of age.

ts	(7) An affidavit or statutory declaration by a
n	person who has served a copy of the
e	certificate on the accused is admissible in
m	evidence at a hearing referred to in sub-
u	section (2) and, as to the service of the copy,
c	is proof, in the absence of evidence to the
o	contrary, of the facts and matters deposed to
D	in the affidavit or stated in the statutory
ry	declaration.
ta	(8) An accused who has been served with a copy

of a certificate given under this section may,

n

e	with the leave of the court and not otherwise, require the person who has given the
m
ia	certificate or any person employed, or
rl	engaged to provide services at, the place at
which the sample of oral fluid was provided,
a	to attend at all subsequent proceedings for
P	cross-examination and that person must
d	attend accordingly.
n
a	(9) The court must not grant leave under sub-
n	section (8) unless it is satisfied—
o
ti	(a) that the informant has been given at

least 7 days' notice of the hearing of the

la	application for leave and has been
is	given an opportunity to make a
g	submission to the court; and
e	(b) that—
L
n	(i) there is a reasonable possibility
a	that the oral fluid referred to in a
ri	certificate given by an analyst
to	under sub-section (4) was not that
ic	of the accused; or
V

Road Safety (Drug Driving) Act 2003

s. 16

Act No. 111/2003

(ii)  there is a reasonable possibility that the oral fluid referred to in a certificate given under sub-section

ts	(3) had become contaminated in
n	such a way that a drug found on
e	analysis would not have been
m	found had the oral fluid not been
u	contaminated in that way; or
c
o	(iii) there is a reasonable possibility
D	that the sample was not taken
ry	within 3 hours after the person
who provided the sample drove or
ta	was in charge of the vehicle; or
n	(iv) for some other reason the giving
e

of evidence by the person who

m

ia	gave the certificate would
rl	materially assist the court to
ascertain relevant facts.
a
P	(10) An accused who has been served with a copy
d	of a certificate given under this section may
n	not require the person who has given the
a	certificate or any person employed, or
n	engaged to provide services at, the place at
o	which the sample of oral fluid was provided,
ti	to attend the court on the hearing of an
la	application for leave under sub-section (8).
is	(11) Evidence of a kind permitted to be given by
g	sub-section (2) in legal proceedings of a kind
e	referred to in sub-section (2)(a), (b), (c), (d)
L	or (e) is inadmissible as evidence in any
n	other legal proceedings.'.
a
ri
to
ic
V

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s. 17

Act No. 111/2003

17. Evidentiary provisions—breath tests

In section 58(1) of the Principal Act—

ts	(a) in paragraph (c), for "Act—" substitute
n	"Act; or";
e

(b) after paragraph (c) insert—

m

u	"(d) in any proceedings conducted by a
c	coroner—".
o
D	18. New section 58B inserted
ry	After section 58A of the Principal Act insert—
ta	'58B. Prohibited analysis
n	(1) In this section—
e

"DNA database" has the meaning given by

m

ia	section 464(2) of the Crimes Act 1958;
rl	"Part 5 sample" means a sample of blood,
a	urine or oral fluid taken from, or
P	furnished or provided by, a person
d	under this Part;
n	"permitted purpose", in relation to an
a	analysis of a Part 5 sample, means the
n	purpose of determining—
o

ti	(a)	whether alcohol or any other drug
la	is present in the sample; or
is	(b)	the level of concentration in which
g	alcohol or any other drug is
e	present in the sample;

L	"prohibited analysis", in relation to a Part 5
n	sample, means analysis of the sample
a
ri	for a purpose other than the permitted
to	purpose.
ic
V

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s. 19

Act No. 111/2003

(2) A person who intentionally or recklessly—

(a) supplies a Part 5 sample, or causes a

ts	Part 5 sample to be supplied, to a
n	person for prohibited analysis; or
e	(b) carries out a prohibited analysis of a
m	Part 5 sample; or
u
c	(c) includes, or causes the inclusion of,
o	information derived from a prohibited
D	analysis on a DNA database kept under a law of this State or the
ry	Commonwealth or of another State or a
ta	Territory—
n	is guilty of an offence and liable to
e	imprisonment for a term of not more than
m	12 months or to a fine of not more than
ia
rl	120 penalty units.'.
a	19. Power to prevent driving by incapable persons
P	After section 62(1) of the Principal Act insert—
d	"(1A) Without limiting the grounds on which a
n
a	member of the police force may form the opinion that a person is, by reason of his or
n	her physical or mental condition, incapable
o
ti	of having proper control of a motor vehicle,
la	the fact that—

is	(a)	the person has furnished a sample of
g	breath for analysis by a breath
e	analysing instrument under section 55
L	and the result of the analysis as
n	recorded or shown by the breath
a	analysing instrument indicates that the
ri	prescribed concentration of alcohol or
to	more than the prescribed concentration
ic	of alcohol is present in his or her
breath; or
V

Road Safety (Drug Driving) Act 2003

s. 20

Act No. 111/2003

(b) a test by a prescribed device under section 55E of a sample of oral fluid provided under that section indicates, in

ts	the opinion of the person who carried
n	out the test, that the person's oral fluid
e	contains a prescribed illicit drug—
m
u	is of itself a sufficient ground for forming
c	that opinion.".
o	20. Drug-driving infringements
D

(1) In section 88(1A) of the Principal Act, after

ry	"drink-driving infringement," insert "a drug-
ta	driving infringement".
n	(2) Insert the following heading to section 89A of the
e	Principal Act—
m
ia	"Effect of drink-driving infringements, drug-
rl	driving infringements and excessive speed
a	infringements".
P	(3) In section 89A(1) of the Principal Act, after
d	"infringements" (where first occurring) insert
n	", drug-driving infringements".
a

(4) In section 89A(2) of the Principal Act, after

n	"drink-driving infringement" insert ", drug-
o
ti	driving infringement".
la	(5) In section 89A(7) of the Principal Act, after
is	"drink-driving infringement" insert "or a drug-
g	driving infringement".
e	(6) In section 89B(1) of the Principal Act, after
L	"drink-driving infringement" insert ", a drug-
n	driving infringement".
a
ri	(7) In section 89E(1), (2), (3) and (4) of the Principal
to	Act, after "drink-driving infringement" insert
ic	", a drug-driving infringement".
V
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s. 21

Act No. 111/2003

21. Supreme Court—limitation of jurisdiction

At the end of section 94B of the Principal Act

ts	insert—
n	"(2) It is the intention of section 55E(17) to alter
e	or vary section 85 of the Constitution Act
m	1975.".
u
c	22. Regulations
o	In Schedule 2 to the Principal Act—
D

(a) for "Alcohol" (where appearing before

ry	item 50) substitute "Alcohol or Other
ta	Drugs";
n	(b) after item 51 insert—
e

"51A. Devices for the purposes of sections 55D and

m	55E and the procedures to be employed in
ia	obtaining samples of oral fluid or carrying out
rl	tests under those sections.
a	51B. The methods and conditions to be observed by
P	persons carrying out procedures under section
d	55E for collecting oral fluid samples.
n	51C. The delivering of portions of samples of oral
a	fluid to the people who provided them and to the persons who required them to be
n	provided.";
o
ti	(c) in items 55A, 56 and 57, for "or urine"
la	substitute ", urine or oral fluid".
is	23. Sunsetting of drug-driving provisions
g
e	(1) In section 3(1) of the Principal Act—
L	(a) the definitions of "drug-driving
n	infringement", "prescribed concentration of
a
ri	drugs" and "prescribed illicit drug" are
repealed;
to	(b) in paragraph (b) of the definition of "drink-
ic	driving infringement", for ", (1B) or (1E)"
V	substitute "or (1B)".

Road Safety (Drug Driving) Act 2003

s. 23

Act No. 111/2003

(c) in the definition of "traffic infringement", paragraph (f) is repealed.

ts	(2) In section 47 of the Principal Act—
n	(a) in paragraph (c), for "alcohol; and"
e	substitute "alcohol.";
m	(b) paragraph (d) is repealed.
u
c	(3) Section 48(1)(ac) of the Principal Act is repealed.
o
D	(4) Section 48(1B) of the Principal Act is repealed.
ry	(5) Section 49(1)(bb) and (eb) of the Principal Act is
ta	repealed.

(6) In section 49(1)(g) of the Principal Act—

n

e	(a) for ", 55B, 55E or 56" substitute "or 56";
m	(b) in sub-paragraph (ii), for "motor vehicle; or"
ia
rl	substitute "motor vehicle.".
a	(7) Section 49(1)(h) and (i) of the Principal Act is
P	repealed.
d	(8) Section 49(3AAA) of the Principal Act is
n	repealed.
a

(9) In section 49(5) of the Principal Act, for "(g), (h)

n	or (i)" substitute "(g)".
o
ti	(10) Section 49(6A) of the Principal Act is repealed.
la	(11) Section 49(9) of the Principal Act is repealed.
is
g	(12) Section 50(1E) of the Principal Act is repealed.
e	(13) In column 1 of the Table in section 50AA of the
L	Principal Act, for ", (1B) and (1E)" substitute
n	"and (1B)".
a
ri	(14) In section 50AAA(4) of the Principal Act, omit
to	", (bb), (h) or (i)".
ic
V
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Act No. 111/2003

(15) In section 50A(1A) of the Principal Act—

(a) omit "(bb),";

ts	(b) for ", (ea), (h) or (i)" substitute "or (ea)".
n
e	(16) In section 50A(2) of the Principal Act—
m	(a) omit "(bb),";
u	(b) for ", (g), (h) or (i)" substitute "or (g)".
c
o	(17) In section 53(1)(b) of the Principal Act, after
D	"preliminary" insert "breath".
ry	(18) Substitute the following heading to section 54 of
ta	the Principal Act—
n	"Preliminary breath testing stations".
e

(19) In section 54(1), (2), (3) and (4) of the Principal

m	Act, before "testing" insert "breath".
ia
rl	(20) In section 54(2)(a) of the Principal Act, for "or
a	preliminary oral fluid tests" substitute "in quick
P	succession".
d	(21) In section 55A(1)(b) of the Principal Act, after
n	"preliminary" insert "breath".
a

(22) Sections 55D and 55E of the Principal Act are

n	repealed.
o
ti	(23) In section 57(9) of the Principal Act, omit
la	", 55E(13)".
is	(24) Section 57B of the Principal Act is repealed.
g
e	(25) In section 62(1A) of the Principal Act—
L	(a) in paragraph (a), for "breath; or" substitute
n	"breath—";
a
ri	(b) paragraph (b) is repealed.
to	(26) In section 88(1A) of the Principal Act, omit "a
ic	drug-driving infringement".
V
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(27) Substitute the following heading to section 89A

of the Principal Act—

ts	"Effect of drink-driving infringements and
n	excessive speed infringements".
e	(28) In section 89A(1) of the Principal Act, omit
m	", drug-driving infringements".
u
c	(29) In section 89A(2) of the Principal Act, omit ",
o	drug-driving infringement".
D	(30) In section 89A(7) of the Principal Act, omit
ry	"or a drug-driving infringement".
ta	(31) In section 89B(1) of the Principal Act, omit ", a
n	drug-driving infringement".
e	(32) In section 89E(1), (2), (3) and (4) of the Principal
m	Act, omit ", a drug-driving infringement".
ia
rl	(33) In Schedule 2 to the Principal Act—
a	(a) for "Alcohol or Other Drugs" (where
P	appearing before item 50) substitute
d	"Alcohol";
n	(b) items 51A, 51B and 51C are repealed;
a
(c) in items 55A, 56 and 57, for ", urine or oral
n
o	fluid" substitute "or urine".
ti	═══════════════
la
is
g
e
L
n
a
ri
to
ic
V

Road Safety (Drug Driving) Act 2003

Endnotes

Act No. 111/2003

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 30 October 2003
e
Legislative Council: 26 November 2003
m
u	The long title for the Bill for this Act was "to amend the Road Safety Act
c	1986 to provide for random drug testing for drivers and create new
o	offences for failing a drug test and for other purposes."
D	Constitution Act 1975:
ry	Section 85(5) statement:
ta	Legislative Assembly: 30 October 2003
n
e	Legislative Council: 26 November 2003
m	Absolute majorities:
ia	Legislative Assembly: 25 November 2003
rl	Legislative Council: 2 December 2003
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V