Road Traffic (Breath Analysis and Blood Test) Regulations 1994 (SA)

(Reprint No. 1)

SOUTH AUSTRALIA

ROAD TRAFFIC (BREATH ANALYSIS AND BLOOD TEST)

REGULATIONS 1994

These regulations are reprinted pursuant to the Subordinate Legislation Act 1978 and incorporate all amendments in force as at 6 November 1997.

SUMMARY OF PROVISIONS

1.                   Citation

2.                   Commencement

3.                   Interpretation

3A.	Approved blood test kit
4.	Oral advice and written notice on recording of positive breath analysis reading
5.	Request for approved blood test kit
6.	Procedures for voluntary blood test
7.	Prescribed period—section 47I(10a)(b)

SCHEDULE 1

Prescribed oral advice and written notice (section 47G(2a)(a), reg. 4)

SCHEDULE 2

Form of request (section 47G(2a)(b), reg. 5)

SCHEDULE 3

Form of Certificate (Section 47G(1a), reg. 6)

APPENDIX

LEGISLATIVE HISTORY

REGULATIONS UNDER THE ROAD TRAFFIC ACT 1961

ROAD TRAFFIC (BREATH ANALYSIS AND BLOOD TEST)

REGULATIONS 1994

being

No. 1 of 1994: Gaz. 20 January 1994, p. 781

as varied by

No. 52 of 1996: Gaz. 4 April 1996, p. 19242

No. 218 of 1997: Gaz. 6 November 1997, p. 12613

1 Came into operation 1 February 1994: reg. 2.

2 Came into operation (except regs. 3 and 7) 4 April 1996: reg. 2(1); regs. 3 and 7 came into operation 18 April 1996: reg. 2(2).

3 Came into operation 6 November 1997: reg. 2.

NOTE:

Asterisks indicate repeal or deletion of text.

For the legislative history of the regulations see Appendix.

Citation

1. These regulations may be cited as the Road Traffic (Breath Analysis and Blood Test) Regulations 1994.

Commencement

2. These regulations will come into operation on the day on which the Road Traffic (Breath Analysis) Amendment Act 1993 comes into operation.

Interpretation

3. In these regulations—

"the Act" means the Road Traffic Act 1961.

Approved blood test kit

3A. For the purposes of the definition of "approved blood test kit" in section 47A of the Act, the following is an approved blood test kit:

The "APPROVED ‘BLOOD TEST KIT’ Section 47G(2a)(b) Road Traffic Act, 1961", produced by Disposable Products Pty. Ltd. or by Sarstedt Australia Pty. Ltd.

Oral advice and written notice on recording of positive breath analysis reading

4. (1) The oral advice required to be given for the purposes of section 47G(2a)(a) of the Act must be as set out in Part A of schedule 1.

(2) The written notice required to be delivered for the purposes of section 47G(2a)(a) of the Act must be as set out in Part B of schedule 1.

Request for approved blood test kit

5. (1) For the purposes of section 47G(2a)(b) of the Act, a request for an approved blood test kit must be made in accordance with the following provisions:

(a)	the request may, in the first instance, be made orally to the person operating the breath analysing instrument ("the operator");
(b)	on such a request having been made by the person, the operator or any other member of the police force present at the scene must complete a written request form in the form set out in schedule 2 by inserting the particulars required by the form;
(c)	the person making the request must then sign the request form in the presence of the operator or other member of the police force and the person’s signature must be attested to by the signature of the operator or other member;
(d)	theoriginalofthesignedrequestformmayberetainedbythepersonmakingthe request;
(e)	a copy of the signed request form must be delivered to the operator or other member of the police force.

(2) The copy of the request form delivered to the operator or other member of the police force must be delivered to the Minister or retained on the Minister’s behalf for 12 months from the day on which the request form was signed by the person making the request.

Procedures for voluntary blood test

6. The following are the prescribed procedures in accordance with which a sample of a person’s blood must be taken and dealt with for the purposes of section 47G(1a) of the Act:

(a)	the person must cause the sample to be taken by a medical practitioner of the person’s choice and must deliver the blood test kit supplied to the person under section 47G(2a)(b) to the medical practitioner for use for that purpose;
(b)	the medical practitioner by whom the sample of the person’s blood is taken must place the sample, in approximately equal proportions, in two containers (being the containers provided as part of the blood test kit);
(c)	eachcontainermustcontainasufficientquantityofbloodtoenableanaccurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner must be such as to furnish two such quantities of blood;
(d)	the medical practitioner must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit;
(e)	itisthedutyofthemedicalpractitionertotakesuchmeasuresasarereasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken;
(f)	the medical practitioner must then complete a certificate in the form set out in schedule 3 (being a form provided as part of the blood test kit) by inserting the particulars required by the form;
(g)	the certificate must be signed by the medical practitioner certifying as to the matters set out in the form;
(h)	the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner;

(i) the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with one of the sealed containers containing part of the blood sample;

(j)

a copy of the signed certificate must be delivered by the medical practitioner together with the other sealed container containing part of the blood sample to a member of the police force who must, in turn, deliver that copy of the certificate and the blood sample container to State Forensic Science;

(k)

the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken;

(l)

on receipt of the blood sample container and certificate at State Forensic Science, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;

(m)

theanalystmustthencompleteandsignacertificatecertifyingastothefollowing matters:

(i)	the date of receipt at State Forensic Science of the blood sample container and the certificate accompanying the blood sample container;
(ii)	the identifying number appearing on the adhesive seal used to seal the blood sample container;
(iii)	the name and professional qualifications of the analyst;
(iv)	the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood;
(v)	any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)	any other information relating to the blood sample or analysis or both that the analyst thinks fit to include;

(n)

the analyst’s certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person’s address on the certificate accompanying the blood sample container;

(o)

a copy of the analyst’s certificate must be sent to or retained on behalf of the Minister;

(p)

a copy of the analyst’s certificate must also be sent to the Commissioner of Police;

(q)

the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood.

Prescribed period—section 47I(10a)(b)

7. For the purposes of section 47I(10a)(b) of the Act, the prescribed period for which a container containing a sample of a person’s blood must be kept available for collection by or on behalf of that person is 12 months from the day on which the sample of blood was taken from the person.

SCHEDULE 1

Prescribed oral advice and written notice (section 47G(2a)(a), reg. 4)

PART A

ORAL ADVICE FOR THE PURPOSES OF SECTION 47G(2a)(a) OF ROAD TRAFFIC ACT 1961

The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.

Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.

In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.

If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.

If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.

[*Alternatively, you may have the sample taken by a registered nurse.]

You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].

Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner [*or registered nurse].

One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.

In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.

Further information as to these matters is contained in the written notice which will be delivered to you shortly.

*

Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside

Metropolitan Adelaide.

PART B

WRITTEN NOTICE FOR THE PURPOSES OF SECTION 47G(2a)(a) OF ROAD TRAFFIC ACT 1961

OPERATION OF ROAD TRAFFIC ACT IN RELATION TO RESULTS OF BREATH ANALYSIS

1.       Offence

A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person—

(a)	drives a motor vehicle: or
(b)	attempts to put a motor vehicle in motion,

while there is present in his or her blood the prescribed concentration of alcohol (as defined in section 47A of the

Act).

2.       Breath analysis

Your breath has just been analysed by means of a breath analysing instrument which indicated that the prescribed concentration of alcohol was present in your blood.

Accordingly, it appears that you have committed the offence described above.

3.       Legal effect of breath analysis result

In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1),(1ab)).

In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading—

if you have a sample of your blood taken and analysed as described below

AND

if the result of analysis of the blood sample shows that the breath analysing instrument gave an

exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).

PROCEDURES FOR OPTIONAL BLOOD TEST

1. You may have a sample of your blood taken and analysed if you wish.

2. For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request form for the kit and should retain a copy of the signed request form).

3. You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).

4. Do not consume any further alcohol before the sample is taken.

5. Do not open the blood test kit.

6. The medical practitioner [*or registered nurse] taking the sample of your blood will divide it and place it into two containers and seal the containers. One container will be delivered to you — do not break the seal on this container.

7. Sign the form presented to you by the medical practitioner [*or registered nurse] — the original of the form will be given to you which you should retain.

8. You may, if you wish, have the blood sample (in the container delivered to you) analysed at a laboratory to determine the concentration of alcohol present in the blood.

9. The other blood sample container will, in any event, be sent to State Forensic Science where the blood will be analysed. The results of this analysis will be sent to you at your address (as indicated on the form presented to you by the medical practitioner [*or registered nurse] who took the blood sample).

* The alternative of a registered nurse applies only if the breath analysis was conducted outside Metropolitan Adelaide.

SCHEDULE 2

Form of request (section 47G(2a)(b), reg. 5)

ROAD TRAFFIC ACT 1961

REQUEST FORM FOR THE PURPOSES OF SECTION 47G(2a)(b)

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . of.. .. .. .. .. .. .. .. .. .. .. .

(Name)

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .

(Address)

submitted to a breath analysis at .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .

(Address or description)

at.. .. .. .. .. .. . .am/pm on the.. .. .. .. .. .. .day of. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..	19.. .. .. .
I (the person named above) now request that I be supplied with an approved blood test kit.

Signature:.. .. .. .. .. .. .. .. .. .. .. .. .. In the presence of:. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .

(Person making request) (Name of Police Officer)

Signature of witnessing Police Officer:.. .. .. .. .. .. .. .. .. .. . .

SCHEDULE 3

Form of Certificate (Section 47G(1a), reg. 6)

ROAD TRAFFIC ACT 1961

BLOOD TEST FOR ALCOHOL (MEDICAL PRACTITIONER’S OR NURSE’S CERTIFICATE)

A.

CERTIFICATE BY *MEDICAL PRACTITIONER/REGISTERED NURSE

Pursuant to Section 47G of the Road Traffic Act, 1961

I,. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. a *medical practitioner/registered nurse, certify that at

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. at.. .. .. .. .. .. .. .. am/pm on the. .. .. .. .day

(Name of Hospital/Surgery)

of.. .. .. .. .. .. .. .19.. .. . ., I took a sample of blood from:

PATIENT’S NAME & ADDRESS Please print clearly for mailing

Postcode

Patient’s Signature. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .

I witnessed the patient’s signature. I divided the sample into two approximately equal portions, placed them in

containers and secured the caps. I then sealed each container by application of an adhesive seal bearing the

identifying number:

Serial number:.. .. .. .. .

I personally gave one container to the patient.

Signed by the abovementioned *medical practitioner/registered nurse:. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .

B. POLICE SAMPLE

Place in blood box ...... Box number Handed to Police Officer

(declared hospital)

By: Name.. .. .. .. .. .. .. .. .. .. .. . Signature:. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .

C. PATIENT’S SAMPLE

Personally given to patient

PATIENT TO SIGN FOR SAMPLE:

I acknowledge receipt of the sample: .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .

Tick Applicable Box.

* Strike out whichever is inapplicable (note: a blood sample may be taken by a registered nurse only if the breath analysis

was conducted outside Metropolitan Adelaide)

APPENDIX

LEGISLATIVE HISTORY

Regulation 1:	varied by 52, 1996, reg. 3
Regulation 3A:	inserted by 52, 1996, reg. 4; varied by 218, 1997, reg. 3
Regulation 5(1):	varied by 52, 1996, reg. 5(a)
Regulation 5(2):	substituted by 52, 1996, reg. 5(b)
Regulation 6:	varied by 52, 1996, reg. 6
Regulation 7:	inserted by 52, 1996, reg. 7
Schedule 1:	substituted by 52, 1996, reg. 8 (Sched. 1)
Schedule 2:	substituted by 52, 1996, reg. 9 (Sched. 2)