Road Traffic Amendment (Drugs) Act 2007 (WA)

Western Australia

Road Traffic Amendment (Drugs) Act 2007

Western Australia

Road Traffic Amendment (Drugs) Act 2007

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — *Road Traffic Act 1974*

amended

3.	The Act amended in this Part	3
4.	Section 51 amended	3
5.	Section 63 amended	3
6.	Sections 64AB and 64AC inserted	4

64AB.	Driving while impaired by drugs	4
64AC.	Driving with prescribed illicit drug in oral
fluid or blood	7

7.	Section 65 amended	8
8.	Section 66 amended	9
9.	Sections 66A to 66F inserted	9

66A.

Requirement to undergo driver

assessment

66B.

Requirement to provide blood or urine

sample if driver assessment indicates drug

impairment

66C.

Requirement to undergo a preliminary oral

fluid test

66D.

Requirement to provide sample of oral

fluid for testing

66E.

Requirement or right to provide sample of

blood for analysis instead of providing

sample of oral fluid

Road Traffic Amendment (Drugs) Act 2007

Contents

66F.

Medical practitioners and registered

nurses authorised to take blood samples

10.

Sections 67AA and 67AB inserted

67AA.

Failure to comply with requirement as to

driver assessment or provision of blood or

urine sample for analysis under

section 66A or 66B

67AB.

Failure to comply with requirement as to provision of oral fluid or blood sample for testing or analysis under section 66D or 66E

11.	Section 67A amended	23
12.	Section 69 amended	23
13.	Section 69A amended	23
14.	Sections 69B inserted	23

69B.

Oral fluid samples

15.	Section 70 amended	24
16.	Sections 71A and 71B inserted	29

71A.	Samples not to be used to obtain DNA	29
71B.	Power to prevent use of vehicle by
suspected offender	29

17.	Section 72 amended	32
18.	Section 72A inserted	34

72A.

Review of amendments relating to drugs

19.	Section 75 amended	35
20.	Section 76 amended	35
21.	Section 106 amended	36
Part 3 — *Young Offenders Act 1994*

amended

22.	The Act amended in this Part	38
23.	Schedule 1 amended	38

Western Australia

Road Traffic Amendment (Drugs) Act 2007

No. 6 of 2007

An Act to amend the —

Road Traffic Act 1974; and

Young Offenders Act 1994.

[Assented to 23 May 2007]

The Parliament of Western Australia enacts as follows:

Road Traffic Amendment (Drugs) Act 2007

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This is the Road Traffic Amendment (Drugs) Act 2007.

2. Commencement

(1)

This Act comes into operation on a day fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

Note:

Under section 22 of the Interpretation Act 1984, this section and

section 1 come into operation on the day on which this Act receives the

Royal Assent.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 3

Part 2 — Road Traffic Act 1974 amended

3. The Act amended in this Part

The amendments in this Part are to the Road Traffic Act 1974*.

[* Reprint 9 as at 10 March 2006.

For subsequent amendments see Act No. 39 of 2000 and

Road Traffic (Fees for Vehicle Licences) Regulations 2006

published in Gazette 26 May 2006 p. 1885-8.]

4. Section 51 amended

Section 51(1)(a)(iii) is amended by inserting before “89” —

“ 64AC, ”.

5. Section 63 amended

(1)	Section 63(3) is amended by deleting “section 67 of this Act” and inserting instead —
“ section 64AB or 67AA or section 67 ”.
(2)	Section 63(4) is amended by deleting “, and if he desires to exercise this right, every facility in this regard shall be afforded him”.
(3)	After section 63(4) the following subsections are inserted —

“

(4a)

The rights and requirements in subsection (4) do not

apply unless the person is under arrest or otherwise in

custody at the time of being charged.

(4b)

The right in subsection (4)(a), and the requirements

relating to it, do not apply if a sample of the person’s

blood has been taken pursuant to section 66, 66B or

66E before the person is charged.

”.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 6

(4)

Section 63(6) is amended by deleting “or 64AA” and inserting

instead —

“ , 64AA, 64AB or 64AC ”.

6. Sections 64AB and 64AC inserted

After section 64A the following sections are inserted —

“

64AB.

Driving while impaired by drugs

(1)

A person who drives or attempts to drive a motor

vehicle while impaired by drugs commits an offence,

and the offender may be arrested without warrant.

(2)

A person convicted of an offence against this section is

liable —

(a)

for a first offence, to a fine of not less than the court convicting the person shall order that the person be disqualified from holding or obtaining a driver’s licence for a period of not less than 6 months; and

(b)

for a second offence, to a fine of not less than 30 PU or more than 70 PU or to imprisonment for 9 months; and, in any event, the court

convicting the person shall order that the person

be disqualified from holding or obtaining a

driver’s licence for a period of not less than

2 years; and

(c)

for a third or subsequent offence, to a fine of not less than 40 PU or more than 100 PU or to imprisonment for 18 months; and, in any event, the court convicting the person shall order that the person be permanently disqualified from holding or obtaining a driver’s licence.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 6

(3)

For the purposes of subsection (2), where a person is

convicted of an offence against this section any offence

previously committed by the person against section 63

or 67AA or section 67 as in force after the coming into

operation of section 16 of the Road Traffic Amendment

Act (No. 2) 1982 shall be taken into account and be

deemed to have been an offence against this section

(but not to the exclusion of any other previous offence

against this section) in determining whether that first

mentioned offence is a first, second, third or

subsequent offence.

(4)

Section 63(4) to (4b) extend to the charging of a person

with an offence against this section.

(5)

The accused may be convicted of an offence against

this section if the prosecutor proves that —

(a)	the accused drove or attempted to drive a motor vehicle; and
(b)	one or more drugs were present in the accused’s body at the time of that driving or attempted driving; and
(c)	the conduct, condition or appearance of the accused at or after the time of that driving or attempted driving, or during a driver assessment, was consistent with conduct, a condition or an appearance associated with a person who has consumed or used that drug or those drugs; and
(d)	the conduct or condition associated with a person who has consumed or used that drug or those drugs would be inconsistent with the person being capable of having proper control of a motor vehicle.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 6

(6)

A person charged with an offence against this section

may, instead of being convicted of that offence, be

convicted of an offence against section 63 or 64AC.

(7)

If in any proceeding for an offence against this section

it is proved that a certain drug was present in the

accused’s body at any time within 4 hours after the

time of the driving or attempted driving of a motor

vehicle that gave rise to the alleged offence, the

presence of that drug in the accused’s body at the time

of that driving or attempted driving is taken to be

proved in the absence of proof to the contrary.

(8)

In any proceeding for an offence against this section it

is a defence for the accused to prove in respect of the

drug, or each drug, referred to in subsection (5) —

(a)	that the drug was —

(i) taken pursuant to a prescription of a medical practitioner, nurse practitioner registered under the Nurses Act 1992, or registered dentist; or

(ii) administered by a medical practitioner, nurse practitioner registered under the Nurses Act 1992, or registered dentist,

for therapeutic purposes; and

(b)	that where the drug was received or obtained by the accused in a packaged form, the packaging of the drug did not include a label advising that the drug was likely to result in conduct or a condition that would be inconsistent with the person being capable of having proper control of a motor vehicle; and
(c)	reasonably have been expected to be aware,

that the accused was not aware, and could not condition that would be inconsistent with the

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 6

person being capable of having proper control

of a motor vehicle.

(9)	Subsection (8) has effect despite subsection (5).

64AC.

Driving with prescribed illicit drug in oral fluid or

blood

(1)

A person who drives or attempts to drive a motor

vehicle while a prescribed illicit drug is present in the

person’s oral fluid or blood commits an offence.

(2)

A person convicted of an offence against this section is

liable —

(a)

for a first offence, to a fine of not more than 4 PU; and

(b)

for a second or subsequent offence, to a fine of not less than 5 PU or more than 10 PU; and, in any event, the court convicting the person shall order that the person be disqualified from

holding or obtaining a driver’s licence for a

period of not less than 3 months.

(3)

For the purposes of subsection (2), where a person is

convicted of an offence against this section any offence

previously committed by the person against

section 67AB shall be taken into account and be

deemed to have been an offence against this section

(but not to the exclusion of any other previous offence

against this section) in determining whether that first

mentioned offence is a first, second or subsequent

offence.

(4)

If in any proceeding for an offence against this section

it is proved that a certain drug was present in the

accused’s body at any time within 4 hours after the

time of the driving or attempted driving of a motor

vehicle that gave rise to the alleged offence, the

Road Traffic Amendment (Drugs) Act 2007

Part 2

Road Traffic Act 1974 amended

s. 7

presence of that drug in the accused’s body at the time

of that driving or attempted driving is taken to be

proved in the absence of proof to the contrary.

(5)

If a person takes a prescribed illicit drug mistakenly believing it to be another drug, that mistake is not a defence in any proceeding for an offence against this

section if that other drug is also a drug within the

meaning of paragraph (a) or (b) of the definition of

“drug” in section 65.

”.

7. Section 65 amended

Section 65 is amended by inserting in the appropriate

alphabetical positions —

“

“approved device” means a device of a type approved

by the Minister under section 72(2)(c) for the

purpose of ascertaining the presence of prescribed

illicit drugs in a person’s oral fluid;

“authorised drug tester” means a person authorised

by the Commissioner of Police to collect, and

conduct drug testing of, samples of oral fluid for

the purposes of section 66D;

“conduct” includes behaviour and demeanour;

“driver assessment” means an assessment of drug impairment required by a member of the Police Force under section 66A(1) or (2);

“drug” means —

(a)	a drug to which the Misuse of Drugs Act 1981 applies; or
(b)	a substance that is included in the Poisons Act 1964 Schedule 4; or

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 8

(c)	a substance (other than alcohol) that, when consumed or used by a person, deprives the person (temporarily or permanently) of any of the person’s normal mental or physical

faculties;

“drug testing”, in relation to oral fluid, means testing

for the presence of prescribed illicit drugs;

“preliminary oral fluid test” means a test of a sample

of a person’s oral fluid by means of a device of a

type approved by the Minister under

section 72(2)(d) for the purpose of providing a

preliminary indication of the presence of

prescribed illicit drugs in the oral fluid, and a

person “undergoes” a preliminary oral fluid test if

the person provides a sample of the person’s oral

fluid for a preliminary oral fluid test;

“prescribed illicit drug” means a drug that is declared

by the regulations to be a prescribed illicit drug;

”.

8. Section 66 amended

(1)	After section 66(1a) the following subsection is inserted —

“

(1b)

Where a person required under subsection (1) or (1a) to provide a sample of breath for a preliminary test is in a motor vehicle, a member of the Police Force may

require the person to leave the vehicle for the purpose

of providing the sample.

”.

(2)	Section 66(16) and (17) are repealed.

9. Sections 66A to 66F inserted

After section 66 the following sections are inserted —

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 9
“

66A.

Requirement to undergo driver assessment

(1)	A member of the Police Force may require —

(a)	the driver or person in charge of a motor vehicle; or
(b)	any person the member of the Police Force has reasonable grounds to believe was the driver or person in charge of a motor vehicle,

to undergo an assessment of drug impairment if a

member of the Police Force has reasonable grounds to

believe that the person is, or was while driving or

attempting to drive the motor vehicle, impaired by

something, other than alcohol alone, affecting the

person’s capacity to drive a motor vehicle.

(2)	Where a member of the Police Force —

(a)	has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
(b)	does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use,

but has reasonable grounds to believe —

(c)	that the person may have been the driver or person in charge of the motor vehicle at that time; and
(d)	that the person was at that time impaired by something, other than alcohol alone, affecting the person’s capacity to drive a motor vehicle,

a member of the Police Force may require the person to

undergo an assessment of drug impairment.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 9

(3)	For the purposes of subsection (1) or (2) a member of the Police Force may require a person who is required to undergo a driver assessment to wait at the place at
which the requirement was made.
(4)	Where a person required under subsection (1) or (2) to undergo a driver assessment is in a motor vehicle, a member of the Police Force may require the person to leave the vehicle for the purpose of undergoing the assessment.
(5)	A person who is required to undergo a driver assessment shall comply with that requirement by undergoing the assessment in accordance with the directions of a member of the Police Force.
(6)	A person shall not be required to undergo a driver assessment if it appears to a member of the Police Force that —

(a)

the driver assessment could not be conducted within 4 hours after the time at which driving, attempted driving, use or management of a

motor vehicle in circumstances giving rise to

the requirement is believed to have taken place;

(b)

because of the person’s physical condition the person is incapable of undergoing the driver assessment.

(7)	A driver assessment shall be conducted by a member of the Police Force in accordance with regulations prescribing the procedure for assessing drug impairment.

66B.

Requirement to provide blood or urine sample if

driver assessment indicates drug impairment

(1) Where —

Road Traffic Amendment (Drugs) Act 2007

Part 2

Road Traffic Act 1974 amended

s. 9

(a)	a person having undergone a driver assessment, it appears to a member of the Police Force that the assessment indicates that the person is drug impaired; or
(b)	a person refuses or fails to undergo a driver assessment having been required to do so; or
(c)	a member of the Police Force might require a person to undergo a driver assessment but is precluded from doing so by section 66A(6)(b),

a member of the Police Force may require the

person —

(d)	to allow a medical practitioner or registered nurse nominated by the person to take a sample of the person’s blood for analysis; or
(e)	to provide a medical practitioner or registered nurse nominated by the person with a sample of the person’s urine for analysis,

or to do both of those things, and for the purposes of

this subsection may require the person to accompany a

member of the Police Force to a place, and may require

the person to wait at that place.

(2)

Where a person is incapable of complying with a

requirement under subsection (1)(d), a member of the

Police Force may cause a medical practitioner or

registered nurse to take a sample of the person’s blood

for analysis.

(3)

Where a person is apparently unconscious or seriously

injured a member of the Police Force shall facilitate the

provision of medical assistance for the person.

(4)

A person shall not be required —

(a)	to allow a medical practitioner or registered nurse to take a sample of the person’s blood; or

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 9

(b)	to provide a medical practitioner or registered nurse with a sample of the person’s urine,

under subsection (1), and a medical practitioner or

registered nurse shall not be caused to take a sample of

a person’s blood under subsection (2), if it appears to

the member of the Police Force that the sample cannot

be taken or provided, as the case may be, within

4 hours after the time at which driving, attempted

driving, use or management of a vehicle in

circumstances giving rise to the requirement is believed

to have taken place.

(5)	Subsection (6) applies to a person if, under subsection (1) —

(a)	a member of the Police Force requires the person —

(i) to allow a medical practitioner or registered nurse nominated by the person to take a sample of the person’s

blood for analysis; or

(ii) to provide a medical practitioner or registered nurse nominated by the person with a sample of the person’s urine for analysis,

or to do both of those things, and the person

fails to nominate a medical practitioner or

registered nurse; or

(b)	registered nurse to take a sample of the

the person nominates a medical practitioner or person’s urine, or for both of those purposes, but a member of the Police Force has reasonable grounds to believe that the medical practitioner or registered nurse so nominated —

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 9

(i) is not available within a distance of 40 kilometres; or

(ii) is not available within the time prescribed by subsection (4); or

(iii) refuses to take the blood sample or collect the urine sample or to do either of those things; or

(iv) cannot readily be located.

(6)	If this subsection applies to a person, a member of the Police Force may require the person —

(a)	to allow a medical practitioner or registered nurse nominated by the member of the Police Force to take a sample of the person’s blood for analysis; or
(b)	to provide a medical practitioner or registered nurse nominated by the member of the Police Force with a sample of the person’s urine for analysis,

or to do both of those things, and for the purposes of

this subsection may require the person to accompany a

member of the Police Force to a place, and may require

the person to wait at that place.

66C.

Requirement to undergo a preliminary oral

fluid test

(1)

A member of the Police Force may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or

person in charge of a motor vehicle, to undergo a

preliminary oral fluid test.

(2)

A member of the Police Force may —

(a)	call upon the driver of a motor vehicle to stop the vehicle;

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 9

(b)	direct the driver of a motor vehicle to wait at a place indicated by the member of the Police Force,

in order that a requirement may be made under

subsection (1).

(3)	Where a member of the Police Force —

(a)	has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
(b)	does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use,

the member of the Police Force may require any person

who he has reasonable grounds to believe may have

been the driver or person in charge of the motor vehicle

at that time to undergo a preliminary oral fluid test.

(4)	For the purposes of subsection (1) or (3) a member of the Police Force may require a person who is required to undergo a preliminary oral fluid test to wait at the
place at which the requirement was made.
(5)	Where a person required to undergo a preliminary oral fluid test is in a motor vehicle, a member of the Police Force may require the person to leave the vehicle for
the purpose of undergoing the test.
(6)	A person who is required to undergo a preliminary oral fluid test shall comply with that requirement by undergoing the test in accordance with the directions of a member of the Police Force.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 9

(7)	A preliminary oral fluid test shall be conducted by a member of the Police Force in accordance with regulations prescribing the procedure for those tests.

66D.

Requirement to provide sample of oral fluid for

testing

(1) Where —

(a)	a person having undergone a preliminary oral fluid test, it appears to a member of the Police Force that the test indicates that the person’s

oral fluid contains a prescribed illicit drug; or

(b)	a person refuses or fails to undergo a preliminary oral fluid test having been required to do so,

a member of the Police Force may require the person to

provide a sample of the person’s oral fluid for drug

testing, and for the purposes of this subsection may

require the person to accompany a member of the

Police Force to a place, and may require the person to

wait at that place.

(2)

A person who is required under subsection (1) to

provide a sample of oral fluid for drug testing shall

comply with that requirement by providing the sample

in accordance with the directions of an authorised drug

tester.

(3)

A person shall not be required under subsection (1) to

provide a sample of oral fluid for drug testing if it

appears to a member of the Police Force that —

(a)

the sample of oral fluid could not be provided within 4 hours after the time at which driving, attempted driving, use or management of a

motor vehicle in circumstances giving rise to

the requirement is believed to have taken place;

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

s. 9

(b)	because of the person’s physical condition the person is incapable of providing the sample of oral fluid.

(4)	Where, under subsection (1), a person provides a sample of oral fluid for drug testing, an authorised drug tester shall —

(a)	collect the sample in the manner prescribed by the regulations; and
(b)	conduct drug testing of the sample by an approved device in accordance with the procedure prescribed by the regulations.

66E.

Requirement or right to provide sample of blood for

analysis instead of providing sample of oral fluid

(1)

Where a member of the Police Force might, under

section 66D(1), require a person to provide a sample of

oral fluid for drug testing but is precluded from doing

so by section 66D(3)(b), a member of the Police Force

may require the person to allow a medical practitioner

or registered nurse nominated by the person to take a

sample of the person’s blood for analysis, and for the

purposes of this subsection may require the person to

accompany a member of the Police Force to a place,

and may require the person to wait at that place.

(2)

Where a person is incapable of complying with a

requirement under subsection (1), a member of the

Police Force may cause a medical practitioner or

registered nurse to take a sample of the person’s blood

for analysis.

(3)

Where a person is apparently unconscious or seriously

injured a member of the Police Force shall facilitate the

provision of medical assistance for the person.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 9

(4)

A person shall not be required to allow a medical

practitioner or registered nurse to take a sample of the

person’s blood under subsection (1), and a medical

practitioner or registered nurse shall not be caused to

take a sample of a person’s blood under subsection (2),

if it appears to the member of the Police Force that the

sample cannot be taken or provided, as the case may

be, within 4 hours after the time at which driving,

attempted driving, use or management of a vehicle in

circumstances giving rise to the requirement is believed

to have taken place.

(5)

A person who has been required, under section 66D(1),

to provide a sample of oral fluid for drug testing may

require that, instead of so doing, the person be

permitted to allow a medical practitioner or registered

nurse nominated by the person to take a sample of the

person’s blood for analysis.

(6) Where —

(a)

under subsection (1), a member of the Police Force requires a person to allow a medical practitioner or registered nurse nominated by the person to take a sample of the person’s blood for analysis, and the person fails to nominate a medical practitioner or registered nurse; or

(b)

a medical practitioner or registered nurse to

take a sample of the person’s blood for

under subsection (1) or (5), a person nominates reasonable grounds to believe that the medical practitioner or registered nurse so nominated —

(i) is not available within a distance of 40 kilometres; or

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 10

(ii) is not available within the time prescribed by subsection (4); or

(iii) refuses to take the blood sample; or

(iv) cannot readily be located,

the member of the Police Force may require the person

to allow a medical practitioner or registered nurse

nominated by the member of the Police Force to take a

sample of the person’s blood for analysis, and for the

purposes of this subsection may require the person to

accompany a member of the Police Force to a place,

and may require the person to wait at that place.

66F.

Medical practitioners and registered nurses

authorised to take blood samples

(1)	Where under section 66, 66B or 66E a member of the Police Force —

(a)	requires a person to allow a medical practitioner or registered nurse nominated by the member of the Police Force to take a sample of the person’s blood for analysis; or
(b)	causes a medical practitioner or registered nurse to take a sample of a person’s blood for analysis,

this section authorises the medical practitioner or

registered nurse to take that sample.

(2)	No action lies against a person who is a medical practitioner or registered nurse by reason only of the person taking a sample of another person’s blood for analysis under section 66, 66B or 66E.

”.

10. Sections 67AA and 67AB inserted

Before section 67A the following sections are inserted —

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 10
“

67AA.

Failure to comply with requirement as to driver assessment or provision of blood or urine sample for analysis under section 66A or 66B

(1)

In this section —

“requirement” means a requirement of a member of

the Police Force made under section 66A or 66B.

(2)

A person who fails to comply with a requirement —

(a)	to undergo a driver assessment; or
(b)	to allow a medical practitioner or registered nurse to take a sample of the person’s blood for analysis; or
(c)	to provide a medical practitioner or registered nurse with a sample of the person’s urine for analysis,

commits an offence.

(3)	A person convicted of an offence against this section is liable —

(a)

(b)

for a second offence, to a fine of not less than 30 PU or more than 70 PU or to imprisonment for 9 months; and, in any event, the court

convicting the person shall order that the person

be disqualified from holding or obtaining a

driver’s licence for a period of not less than

2 years; and

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 10

(c)	for any subsequent offence, to a fine of not less than 40 PU or more than 100 PU or to imprisonment for 18 months; and, in any event, the court convicting the person shall order that the person be permanently disqualified from holding or obtaining a driver’s licence.

(4)	For the purposes of subsection (3), where a person is convicted of an offence against this section any offence previously committed by the person against section 63 or 64AB or section 67 as in force after the coming into operation of section 16 of the Road Traffic Amendment Act (No. 2) 1982 shall be taken into account and be deemed to have been an offence against this section (but not to the exclusion of any other previous offence against this section) in determining whether that first mentioned offence is a first, second, third or subsequent offence.
(5)	It is a defence to a prosecution for an offence against this section if the accused satisfies the court that there was some substantial reason for the accused’s failure to
comply other than a desire to avoid providing information that might be used as evidence.
(6)	Without limiting the generality of subsection (5) it is a defence to a prosecution for failing to comply with a requirement mentioned in subsection (2)(c) if the accused satisfies the court that the accused attempted to comply with the requirement.

67AB.

Failure to comply with requirement as to provision of oral fluid or blood sample for testing or analysis under section 66D or 66E

(1)

In this section —

“requirement” means a requirement of a member of

the Police Force made under section 66D or 66E.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 10

(2)	A person who fails to comply with a requirement —

(a)	to provide a sample of oral fluid for drug testing; or
(b)	to allow a medical practitioner or registered nurse to take a sample of the person’s blood for analysis,

commits an offence.

(3)	A person convicted of an offence against this section is liable —

(a)

for a first offence, to a fine of not more than 4 PU; and

(b)

for a second or subsequent offence, to a fine of not less than 5 PU or more than 10 PU; and, in any event, the court convicting the person shall order that the person be disqualified from

holding or obtaining a driver’s licence for a

period of not less than 3 months.

(4)

For the purposes of subsection (3), where a person is

convicted of an offence against this section any offence

previously committed by the person against

section 64AC or 67AA or section 67 as in force after

the coming into operation of section 16 of the Road

Traffic Amendment Act (No. 2) 1982 shall be taken into

account and be deemed to have been an offence against

this section (but not to the exclusion of any other

previous offence against this section) in determining

whether that first mentioned offence is a first, second

or subsequent offence.

(5)

It is a defence to a prosecution for an offence against this section if the accused satisfies the court that there was some substantial reason for the accused’s failure to

comply other than a desire to avoid providing

information that might be used as evidence.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

”.

11. Section 67A amended

(1)	Section 67A(1) is amended by deleting “section 66, other than a requirement mentioned in section 66(1aa) or 67(2),” and inserting instead — “

any of sections 66 to 66E, other than a requirement

mentioned in section 66(1aa), 66C(2), 67(2), 67AA(2)

or 67AB(2),

”.

(2)	Section 67A(4) is amended as follows:

(a)	by inserting after “64” —

“ , 64AB ”;

(b)	by deleting “or 67” and inserting instead —

“ , 67, 67AA or 67AB ”.

12. Section 69 amended

Section 69(1) is amended by inserting after “66” —

“ , 66B or 66E ”.

13. Section 69A amended

Section 69A is amended by inserting after “66” —

“ or 66B ”.

14. Sections 69B inserted

After section 69A the following section is inserted —

“

69B.

Oral fluid samples

If the drug testing of a sample of a person’s oral fluid

under section 66D(4)(b) indicates, in the opinion of the

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 15
authorised drug tester who conducted the drug testing, that the person’s oral fluid contains a prescribed illicit drug, the sample shall be divided into 2 parts, each of which shall be deemed to be a sample of the person’s oral fluid for the purposes of this Act, and one of which
shall be given to or retained for the person by whom it was provided, or shall be given to some other person on behalf of the first-mentioned person, and the other of which shall be given to a member of the Police Force.

”.

15. Section 70 amended

(1)	Section 70(3a) is amended as follows:

(a)	by inserting after “proceeding” —

“ for an offence against section 64AC, or ”;

(b)	by inserting after “influence of ” —

“ or impaired by ”;

(c)

after paragraph (c) by deleting the full stop and “

; and

(d)	the conduct, condition or appearance of the person at or after the time of the driving or attempted driving of a motor vehicle that gave
rise to the alleged offence or during a driver assessment; and
(e)	conduct, a condition or an appearance associated with a person who has consumed or used a particular drug or particular drugs; and
(f)	the usual effect that conduct or a condition associated with a person who has consumed or used a particular drug or particular drugs has on

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 15

a person’s capacity to have proper control of a

motor vehicle; and

(g)

the provision of a sample of oral fluid by the person under section 66D, if provided within 4 hours after the driving, attempted driving, use

or management of a motor vehicle that gave

rise to the alleged offence; and

(h)

sample of oral fluid provided under

the analysis for drugs by a drugs analyst of a analysis.

”.

(2)	Section 70(3b) is amended as follows:

(a)

after paragraph (e) by deleting the comma and “

; or

(f)	purporting to be signed by a drugs analyst certifying either or both of the following —

(i) that an identified sample of blood, urine or oral fluid taken from or provided by a named person was analysed for drugs;

(ii) the analysis result obtained from the analysis;

(g)	purporting to be signed by an approved expert describing conduct, a condition or an appearance associated with a person who has consumed or used a drug or drugs specified in the certificate; or
(h)	purporting to be signed by an approved expert setting out the usual effect that conduct or a condition associated with a person who has

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 15

consumed or used a particular drug or particular drugs has on a person’s capacity to have proper control of a motor vehicle; or

(i) purporting to be signed by a member of the Police Force describing the conduct, condition or appearance of a person at or after the time the person drove or attempted to drive a motor vehicle; or

(j)	purporting to be signed by a member of the Police Force certifying the following —

(i) that the member conducted a driver assessment on a person named in the certificate on a date and at a time stated in the certificate;

(ii) that the assessment was conducted in accordance with the regulations,

and describing the conduct, condition or

appearance of the person during the

assessment; or

(k)

purporting to be signed by an authorised drug tester certifying that, under section 66D, an identified sample of oral fluid was collected by the authorised drug tester in accordance with the regulations from a named person on a date and at a time specified in the certificate using identified sampling equipment which was received in a described condition from an identified person,

”;

(b)	by deleting “or registered nurse.” and inserting instead —

“

, registered nurse, drug analyst, approved expert,

member of the Police Force or authorised drug tester.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended

Part 2

”.

(3)	After section 70(3c) the following subsection is inserted —

“

(3d)

In any proceeding for an offence against

section 67A(1) of failing to comply with a requirement

made pursuant to section 66D(1) a certificate in the

prescribed form purporting to be signed by the

Commissioner of Police certifying that a person therein

named is, or was at the material time, an authorised

drug tester is prima facie evidence of the matters

therein certified, without proof of the signature of the

person purporting to have signed it or proof that the

purported signatory was the Commissioner of Police.

”.

(4)	After section 70(4) the following subsections are inserted —

“

(5)

Except at the instance, or with the consent, of the

accused in any proceeding such as is mentioned in

subsection (3a), a certificate mentioned in

subsection (3b)(f), (g) or (h) shall not be adduced, and

if adduced shall not be admitted, in that proceeding

unless a copy of the certificate is proved to have been

served on the accused at least 28 days before the day

on which the certificate is adduced.

(5a)

If subsection (5) has been complied with in relation to

a certificate, the accused shall not challenge or call into

question any matter certified or set out in the certificate

unless —

(a)	notice of the accused’s intention to do so is proved to have been served on the prosecutor at least 14 days before the day on which the certificate is adduced; or

Road Traffic Amendment (Drugs) Act 2007

Part 2

Road Traffic Act 1974 amended

s. 15

(b)	the court, in the interests of justice, gives the accused leave to do so.

(5b)	A notice under subsection (5a)(a) must specify the matter that is to be challenged or called into question.
(5c)	Except at the instance, or with the consent, of that person, evidence that a person underwent a preliminary oral fluid test and of any indication provided by such a test shall not be adduced, and if adduced shall not be admitted, in any proceedings other than proceedings for an offence against section 67AB or 67A.
(5d)	Except as provided by subsection (3a) or (3b) or at the instance, or with the consent, of that person, evidence that a person provided a sample of the person’s oral
fluid for drug testing shall not be adduced, and if adduced shall not be admitted, in any proceedings other than proceedings for an offence against section 67AB or 67A.
(5e)	Except at the instance, or with the consent, of that person, evidence of the result of the drug testing of a sample of a person’s oral fluid by an approved device, shall not be adduced, and if adduced shall not be admitted, in any proceedings other than proceedings for an offence against section 67AB or 67A.

”.

(5)

Section 70(6) is amended by deleting “67.” and inserting

instead —

“ 64AB, 67, 67AA or 67A. ”.

(6)

Section 70(7) is amended by inserting in the appropriate

alphabetical position —

“

“approved expert” means a qualified clinical

pharmacologist approved by the Minister for the

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 16

purpose of this section by notice published in the

Gazette;

”.

(7)	Section 70 is amended by inserting after subsections (1)(a) to (d), (2)(ba)(i) to (v) and (2)(bb)(i) to (v) —
“ and ”.
(8)	Section 70 is amended by inserting after subsection (2)(a) and (b), before subsection (2)(bb), before and after subsection (2)(c) and after subsections (2a)(a), (3)(a) and (3b)(a) to (c) —
“ or ”.

16. Sections 71A and 71B inserted

After section 71 the following sections are inserted —

“

71A.

Samples not to be used to obtain DNA

(1)	In this section —
“sample” means a sample of blood, urine or oral fluid

taken from or provided by a person (the

“subject”) and given to a member of the Police

Force under section 69, 69A or 69B.

(2)

A person must not use a sample to obtain the subject’s

DNA.

Penalty: imprisonment for 12 months.

71B.

Power to prevent use of vehicle by suspected

offender

(1)	If a member of the Police Force has reason to suspect that a person (the “offender”) is driving, is attempting to drive, has driven or has attempted to drive a motor vehicle in contravention of section 63, 64, 64AA, 64A or 64AB, the member of the Police Force may require

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 16
the offender to immediately hand over all keys to any motor vehicle that are there and then in the offender’s possession —

(a)	to the member of the Police Force; or
(b)	to another person who is in the company of the offender if the member of the Police Force is satisfied that the person —

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

(ii) is responsible and is able to drive the vehicle properly.

(2)	A member of the Police Force may make a requirement under subsection (1) if satisfied that the requirement is necessary in the circumstances and is in the interest of the offender, or of any other person or of the public,
and may do so whether or not the offender has been or is to be charged with an offence.
(3)	If keys to a motor vehicle are handed over under subsection (1)(a), a member of the Police Force may take any steps that, in the opinion of the member of the Police Force, are appropriate and practicable in order to ensure that the vehicle is not causing any obstruction to traffic and is secure.
(4)	Those steps may include moving the vehicle to a more suitable place.
(5)	If a person requests a member of the Police Force to hand over to the person keys to a motor vehicle that have been handed over under subsection (1)(a), the member of the Police Force is to comply with the
request if satisfied that the person —

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 16

(a)	is entitled to lawful possession of the vehicle or is in the company of a person who is entitled to lawful possession of the vehicle; and
(b)	is authorised to drive the vehicle on a road; and
(c)	is responsible and able to drive the vehicle properly.

(6)	Before keys to a motor vehicle are handed over to a person under subsection (1)(b) or (5) a member of the Police Force may, for the purposes of subsection (1)(b)(ii) or (5)(c), require the person to provide a sample of the person’s breath for a preliminary test in accordance with the directions of the member of the Police Force.
(7)	If keys to a motor vehicle are not handed over within 24 hours after a request is made under subsection (5), the offender may apply to the Magistrates Court, in
accordance with its rules of court, for an order for the keys to be handed over to a person named in the application.
(8)	A person who —

(a)	contravenes any requirement made by a member of the Police Force under subsection (1); or
(b)	attempts in any manner to obstruct a member of the Police Force in the exercise of any power conferred on the member of the Police Force under subsection (1), (3) or (4),

commits an offence.

Penalty: 8 PU.

”.

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 17

17. Section 72 amended

(1)	Section 72(1) is amended as follows:

(a)	in paragraph (a) by inserting after “breath and” —

“ oral fluid and ”;

(b)	in paragraph (a) by deleting “and urine;” and inserting instead —

“ , urine and oral fluid; and ”;

(c)	in paragraph (aa) by deleting “urine;” and inserting instead —

“ urine and oral fluid; and ”;

(d)	by inserting after paragraph (ab) —

“

and

(ac)	prescribing the manner and methods by which samples of blood, urine and oral fluid may be analysed for drugs; and

”;

(e)	by inserting after paragraph (ba) —

“

and

(bb)

prescribing the procedure for assessing whether

a person is drug impaired; and

(bc)

prescribing the procedure for conducting

preliminary oral fluid tests; and

(bd)

prescribing the procedure for drug testing

samples of oral fluid by an approved device;

and

”;

(f)	in paragraph (d) by deleting “those samples” and inserting instead —

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 17

“

of a sample of blood by an analyst, or a sample of blood, urine or oral fluid by a drugs analyst,

”.

(2)	After section 72(1) the following subsection is inserted —

“

(1a)	Without limiting subsection (1), procedures may be prescribed under subsection (1)(bc) or (bd) by reference to instructions provided by the manufacturer of a device of a type approved under subsection (2)(c) or (d).

”.

(3)	Section 72(2) is amended by deleting the comma after paragraph (b) and inserting —

“

; and

(c)	types of devices for the purpose of conducting drug testing of a sample of a person’s oral fluid for the purposes of section 66D; and
(d)	types of devices for the purpose of conducting preliminary oral fluid tests for the purposes of section 66C,

”.

(4)	After section 72(3) the following subsections are inserted —

“

(4)

The Commissioner of Police may, from time to time, authorise a person to collect, and conduct drug testing of, samples of oral fluid for the purposes of

section 66D.

(5)

The Commissioner of Police must not authorise a

person under subsection (4) unless, in the opinion of

the Commissioner of Police, the person has the

Road Traffic Amendment (Drugs) Act 2007

Part 2

Road Traffic Act 1974 amended

s. 18

appropriate training to collect, and conduct drug testing

of, samples of oral fluid in accordance with the

regulations.

”.

(5)

Section 72 is amended by inserting after subsections (1)(b) and

(3)(a) —

“ and ”.

18. Section 72A inserted

After section 72 the following section is inserted in Part V

Division 2 —

“

72A.

Review of amendments relating to drugs

(1)	In this section —
“amended provisions” means this Act as amended by

the Road Traffic Amendment (Drugs) Act 2007

Part 2;

“commencement day” means the day of the coming

into operation of the Road Traffic Amendment

(Drugs) Act 2007 Part 2.

(2)

The Minister is to carry out a review of the operation

and effectiveness of the amended provisions as soon as

practicable after the end of the period of 12 months

beginning on the commencement day.

(3)

In the course of the review the Minister is to consider

and have regard to —

(a)	the attainment of the objects of the amended provisions; and
(b)	the need for the amended provisions to continue in operation; and
(c)	any other matters that appear to the Minister to be relevant.

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 19

(4)	The Minister is to prepare a report following the review and is to cause it to be laid before each House of Parliament before the end of the period of 18 months beginning on the commencement day.
(5)	If a House of Parliament is not sitting, the Minister may transmit a copy of the report to the Clerk of that House.
(6)	A copy of the report transmitted to the Clerk of a House is to be regarded as having been laid before the House.
(7)	The laying of a copy of the report before a House that is regarded as having occurred under subsection (6) is to be reported to the House by the Clerk, and recorded in the Votes and Proceedings or Minutes of
Proceedings, on the first sitting day of the House after the Clerk received the copy.
(8)	This section expires as soon as a copy of the report has been laid, or recorded under subsection (7) as having been laid, in each House.

”.

19. Section 75 amended

Section 75(6) is amended as follows:

(a)	in paragraph (a) by deleting “or 64” and inserting instead —

“ , 64 or 64AB ”;

(b)	in paragraph (b) by inserting after “1982” —

“ or section 67AA of this Act ”.

20. Section 76 amended

(1)	Section 76(1a) is amended as follows:

Road Traffic Amendment (Drugs) Act 2007

Part 2	Road Traffic Act 1974 amended
s. 21

(a)

in paragraph (a) by deleting “or section 67(3)(b) or (c);” “

, 64AB(2)(b) or (c), 67(3)(b) or (c) or

67AA(3)(b) or (c);

”;

(b)	in paragraph (b) by deleting “or section 67(3)(a)” and inserting instead —

“ , 64AB(2)(a), 67(3)(a) or 67AA(3)(a) ”.

(2)

Section 76(12)(a) is amended by deleting “or 67(3)(a);” and

inserting instead —

“ , 64AB(2)(a), 67(3)(a) or 67AA(3)(a); ”.

21. Section 106 amended

(1)

Section 106(3)(c) and (4) are amended by deleting “least the”

and inserting instead —

“ least a ”.

(2)

After section 106(5) the following subsections are inserted —

“

(6)

A court sentencing a person who has been convicted of

an offence against section 64AB must order a

pre-sentence report about the offender under the

Sentencing Act 1995 Part 3 Division 3.

(7)

A court sentencing a person who has been convicted of

a first offence against section 64AB or 67AA must,

instead of or in addition to imposing a fine —

(a)	order the release of the person and impose a community based order under the Sentencing Act 1995 with at least a programme requirement as a primary requirement of the order; or

Road Traffic Amendment (Drugs) Act 2007

Road Traffic Act 1974 amended	Part 2
s. 21

(b)	Young Offenders Act 1994, subject to

if the offender is a young person under the youth community based order under that Act imposing at least attendance conditions on the offender.

(8)	A court sentencing a person who has been convicted of a second or subsequent offence against section 64AB or 67AA must, instead of or in addition to imposing a fine —

(a)	order the release of the person and impose a community based order under the Sentencing Act 1995 with at least a supervision requirement and a programme requirement as primary requirements of the order; or
(b)	order the release of the person and impose an intensive supervision order under the Sentencing Act 1995 with at least a programme requirement as a primary requirement of the order; or
(c)	Young Offenders Act 1994, subject to

if the offender is a young person under the youth community based order, or an intensive youth supervision order, under that Act imposing at least attendance conditions and supervision conditions on the offender.

(9)	Subsections (7) and (8) apply despite the Sentencing Act 1995 section 39(3) and (4) and the Young Offenders Act 1994 section 74.

(10)	Subsection (8) does not apply if the court imposes a custodial sentence on the offender.

”.

Road Traffic Amendment (Drugs) Act 2007

Part 3	Young Offenders Act 1994 amended
s. 22

Part 3 — Young Offenders Act 1994 amended

22. The Act amended in this Part

The amendments in this Part are to the Young Offenders

Act 1994*.

[* Reprint 3 as at 15 July 2005.

For subsequent amendments see Acts Nos. 27 and

34 of 2004.]

23. Schedule 1 amended

Schedule 1 is amended in the division headed “3. Road Traffic

Act 1974 ” as follows:

(a)	by inserting after the item relating to section 63 —

“

s. 64AB

Driving while impaired by drugs

s. 64AC

Driving with prescribed illicit drug

in oral fluid or blood

”;

(b)	by deleting the item relating to section 67 and inserting instead —

“

s. 67	Failing to provide a breath sample, allow taking of a blood sample or provide a urine sample
s. 67AA	Failing to undergo a driver

assessment, allow taking of a

blood sample or provide a

urine sample

s. 67AB

Failing to provide a sample of oral fluid or allow taking of a blood sample

”.