Road Traffic (Miscellaneous) (Drink and Drug Driving) Variation Regulations 2018 (SA)

South Australia

Road Traffic (Miscellaneous) (Drink and Drug Driving) Variation Regulations 2018

under the Road Traffic Act 1961

Contents

Part 1—Preliminary

1            Short title

2            Commencement

3            Variation provisions

Part 2—Variation of Road Traffic (Miscellaneous) Regulations 2014

4            Substitution of regulation 14

14          Approval of apparatus and kits for breath analysis etc (section 47H of Act)

5            Variation of Schedule 1—Forms

Part 1—Preliminary

1—Short title

These regulations may be cited as the Road Traffic (Miscellaneous) (Drink and Drug Driving) Variation Regulations 2018.

2—Commencement

These regulations will come into operation on the day on which section 28 of the Statutes Amendment (Drink and Drug Driving) Act 2017 comes into operation.

3—Variation provisions

In these regulations, a provision under a heading referring to the variation of specified regulations varies the regulations so specified.

Part 2—Variation of Road Traffic (Miscellaneous) Regulations 2014

4—Substitution of regulation 14

Regulation 14—delete the regulation and substitute:

14—Approval of apparatus and kits for breath analysis etc (section 47H of Act)

(1)The following apparatus are approved as breath analysing instruments:

(a)Dräger Alcotest 7110 Mk V;

(b)Lion Intoxilyzer 8000.

(2)The Alcolizer 5 Series is approved for the purpose of conducting alcotests.

(3)The Securetec Drugwipe II Twin is approved for the purposes of conducting drug screening tests.

(4)The "APPROVED 'BLOOD TEST KIT'" produced by Sarstedt Australia Pty. Ltd. is an approved blood test kit.

5—Variation of Schedule 1—Forms

1. Schedule 1, Form 1—delete the form and substitute:

   Form 1—Notice of licence disqualification or suspension

   (Sections 45B, 45D and 47IAA of Act)

1. Schedule 1, Form 4—delete the form and substitute:

   Form 4—Prescribed oral advice and written notice

   (Section 47K(2a)(a) of Act)

   Part A—Oral advice for the purposes of section 47K(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(1) or (1a) of the Road Traffic Act 1961.

   In any court proceedings for an offence against section 47B(1) or (1a), 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 Forensic Science SA 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 47K(2a)(a) of Road Traffic Act 1961

   Operation of Road Traffic Act in relation to results of breath analysis

   1 Offence

   Section 47B(1) of the Road Traffic Act 1961 provides that a person commits an offence if the person drives a motor vehicle, or attempts to put a motor vehicle in motion, while there is present in the person’s blood the prescribed concentration of alcohol (as defined in section 47A of the Act). Section 47B(1a) provides that if a person engages in conduct involving a motor vehicle that constitutes an offence against section 47B(1) (other than a category 1 offence) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against section 47B(1a) and is liable to the same penalty as is prescribed for an offence against section 47B(1).

   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 an offence described above.

   3 Legal effect of breath analysis result

   In proceedings for an 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 47K(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

   •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 47K(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 Forensic Science SA 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.

Note—

As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.

Made by the Governor

with the advice and consent of the Executive Council

on 13 February 2018

No 46 of 2018

MRS18/01CS