Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)

Case

Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010

A2010-47

Contents

Page

Part 1Preliminary

  1. Name of Act  2

  2. Commencement  2

  3. Legislation amended  3

Part 2Road Transport (Alcohol and Drugs) Act 1977

  1. Offences against Act—application of Criminal Code etc


    Section 4, note 1  4

  2. New part 1A heading  4

  3. Meaning of special driver


    Section 4B (1) (f)  5

  4. Section 4B (3) to (5)  6

  5. Sections 4C to 6  6

  6. New division 2.1  11

  7. Section 8 heading  13

  8. Section 8  13

  9. Section 9 heading  13

  10. Section 9  13

  11. Section 10 heading  14

  12. Section 10  14

  13. Sections 11, 12 and 12AA  14

  14. Section 13 heading  16

  15. Section 13 (1)  16

  16. Section 13  16

  17. New division 2.4  17

  18. Section 14 heading  22

  19. Section 14 (1)  22

  20. Section 14 (3)  22

  21. New section 14 (5)  23

  22. New division 2.7 heading  23

  23. Taking blood samples from people in custody


    Section 15 (1) (b)  23

  24. Section 15 (3)  24

  25. Section 15 (7), (8) and (9)  24

  26. Taking blood samples from people in hospital


    Section 15AA (2) to (4)  25

  27. Sections 15A and 15B  25

  28. Section 16 heading  28

  29. Section 16 (1)  28

  30. Section 16 (2)  28

  31. Section 16 (7) to (9)  29

  32. Section 16A  29

  33. Exemptions from requirements to take blood samples or carry out examinations


    Section 17 (2) (b)  33

  34. Protection of police officers and medical staff


    Section 18 (3) (a)  33

  35. Section 18 (3) (a)  33

  36. Section 18B  34

  37. Section 19  34

  38. New section 19B  35

  39. Driving with prescribed drug in oral fluid or blood


    New section 20 (1A) and (1B)  36

  40. Defence if person did not intend to drive motor vehicle


    Section 21 (b)  37

  41. Section 21 (as amended)  37

  42. Refusing to provide oral fluid sample


    New section 22A (3) and (4)  37

  43. New section 22B  38

  44. Fines and imprisonment—s 19 offences


    Section 26  38

  45. Table 26, column 2 heading  38

  46. Sections 29 and 30  39

  47. Automatic driver licence disqualification—first offenders, s 19


    Section 32  39

  48. Table 32, column 2 heading  39

  49. Automatic driver licence disqualification—repeat offenders, s 19


    Section 33  39

  50. Table 33, column 2 heading  40

  51. New section 35  40

  52. Additional powers of court


    Section 38  41

  53. Section 41 heading  41

  54. Section 41 (1) (a) (i)  41

  55. Section 41 (1) (a) (ii)  41

  56. Section 41 (1) (a) (iv) and (ix)  42

  57. Section 41 (1) (aa)  42

  58. Section 41 (1) (b) (i)  42

  59. Section 41 (1) (b) (ii)  42

  60. Section 41 (1) (b) (iv)  42

  61. Section 41 (1) (b) (vi)  43

  62. Section 41 (ba)  43

  63. Section 41 (1) (c) and (d)  43

  64. Section 41 (1) (e) (iii)  44

  65. Section 41 (1) (f)  44

  66. Section 41 (1) (h)  45

  67. New division 7.2  46

  68. Section 41A  51

  69. Effect of noncompliance—analysis of breath or blood


    Section 42 (1)  54

  70. Section 42 (2)  54

  71. Effect of noncompliance—analysis of oral fluid


    Section 42AA (1)  54

  72. Section 42AA (2)  54

  73. Effect of noncompliance—analysis of body sample


    Section 42A (1)  55

  74. Section 42A (2)  55

  75. Effect of noncompliance—refusal to give sample of breath


    Section 42B (1)  55

  76. Section 42B (2)  55

  77. Effect of noncompliance—refusal to give sample of oral fluid


    Section 42C (1)  56

  78. Section 42C (2)  56

  79. Section 43 heading  56

  80. Section 43 (2)  56

  81. Section 43 (3)  57

  82. Rehabilitation programs


    Part 8  57

  83. Power of arrest


    Section 45  57

  84. New section 45 (2)  58

  85. Penalty for escaping from custody


    Section 46  58

  86. Stopping, search and detaining—Crimes Act, s 207 and s 209


    Section 47A  58

  87. New sections 47B and 47C  59

  88. New part 21  61

  89. Dictionary, new definitions  63

  90. Dictionary, new definition of analyst  63

  91. Dictionary  64

  92. Dictionary, definition of approved laboratory  64

  93. Dictionary, definitions of approved operator and approved oral fluid analysis instrument         64

  94. Dictionary, new definition of authorised operator  64

  95. Dictionary, definition of breath analysis  65

  96. Dictionary, new definition of breath analysis instrument  65

  97. Dictionary, definition of disqualifying offence, paragraph (a)                65

  98. Dictionary, new definitions  65

  99. Dictionary, definition of first offender  65

  100. Dictionary, definition of level  66

  101. Dictionary, definition of oral fluid analysis  66

  102. Dictionary, new definition of oral fluid analysis instrument                   66

  103. Dictionary, definition of prescribed concentration  66

  104. Dictionary, definition of prescribed drug  66

  105. Dictionary, definition of repeat offender  67

  106. Dictionary, definition of screening test  67

  107. Legislative instruments repealed  67

Part 3Road Transport (Driver Licensing) Act 1999

  1. Driver licensing system


    New section 28 (2) (s) and (t)  68

Part 4Road Transport (Driver Licensing) Regulation 2000

  1. Driver licence condition codes


    Table 10, item 8  69

  2. Restrictions on learner motorcycle licence riders


    Section 20 (6), note  69

  3. Restrictions on learner car licence drivers


    Section 21 (1), new definition of driving supervisor  69

  4. Section 21 (4)  69

  5. Section 21 (5)  70

  6. Section 21 (6), note  70

  7. Provisional motorcycle licences—towing restrictions


    Section 36A (3), note 3  70

  8. Provisional car licences—towing restrictions


    Section 37A (3), note 3  70

  9. Eligibility to apply to Magistrates Court for order authorising issue of restricted licence


    Section 45 (2), notes 1 and 2  70

  10. Issue of restricted licence by road transport authority


    Section 49 (3), note  71

  11. Section 49 (3), new note  71

  12. When probationary licence must be issued


    Section 52 (3), new note  71

  13. Conditions of probationary licences


    Section 54, note 2  71

  14. Issue of driver licence that includes public vehicle licence


    Section 63 (3), note 2  72

  15. New divisions 3.13 and 3.14  72

  16. When authority may vary, suspend or cancel driver licences


    New section 87 (1) (p)  84

  17. Dictionary, new definitions  84

Part 5Road Transport (General) Act 1999

  1. New section 5A  85

  2. Sections 58 and 58A  86

  3. Division 4.2 heading  89

  4. Section 64  97

  5. Effect of disqualification


    Section 66 (6) and (7)  97

  6. Section 67  98

  7. Dictionary, new definitions  101

Part 6Road Transport (General) Regulation 2000

  1. Schedule 1, part 1.1  103

  2. Schedule 1, part 1.4, new items 24A and 24B  103

Part 7Road Transport (Offences) Regulation 2005

  1. Schedule 1, part 1.3, new item 6A  104

  2. Schedule 1, part 1.3, new items 8A to 8C  105

  3. Schedule 1, part 1.3, items 10 to 12  106

  4. Schedule 1, part 1.3, item 15  107

  5. Schedule 1, part 1.6, items 11 and 12  108

  6. Schedule 1, part 1.7, items 6 to 8  108

  7. Schedule 1, part 1.7, new items 12A and 12B  110

  8. Schedule 1, part 1.7, item 13  111

Schedule 1Consequential amendments  112

Part 1.1Crimes Act 1900  112

Part 1.2Road Transport (Alcohol and Drugs) Regulation 2000     113

Part 1.3Spent Convictions Act 2000  115

Part 1.4Workers Compensation Act 1951  115

Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010

A2010-47

An Act to amend legislation about driving under the influence of alcohol and drugs, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010.

  2. Commencement

    (1)The following provisions commence on a day fixed by the Minister by written notice:

    (a)part 3;

    (b)section 122;

    (c)section 123;

    (d)section 126;

    (e)section 127;

    (f)section 128;

    (g)section 137.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)The remaining provisions commence on the commencement of the Road Transport (Alcohol and Drugs) (Random Drug Testing) Amendment Act 2010, section 3.

    (3)However, if a provision mentioned in subsection (1) has not commenced within 12 months beginning on this Act’s notification day, the provision automatically commences on the first day after that period.

    (4)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to the provisions mentioned in subsection (1).

    Note A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

  3. Legislation amended

    This Act amends the following legislation:

    ·     Road Transport (Alcohol and Drugs) Act 1977

    ·     Road Transport (Driver Licensing) Act 1999

    ·     Road Transport (Driver Licensing) Regulation 2000

    ·     Road Transport (General) Act 1999

    ·     Road Transport (General) Regulation 2000

    ·     Road Transport (Offences) Regulation 2005.

    NoteThis Act also amends the following legislation (see sch 1):

    ·     Crimes Act 1900

    ·     Road Transport (Alcohol and Drugs) Regulation 2000

    ·     Spent Convictions Act 2000

    ·     Workers Compensation Act 1951.

Part 2Road Transport (Alcohol and Drugs) Act 1977

NoteSchedule 1 contains amendments of other Acts that are consequential on the amendments of the Road Transport (Alcohol and Drugs) Act 1977 in this part.

  1. Offences against Act—application of Criminal Code etc
    Section 4, note 1

    substitute

    Note 1Criminal Code

    The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

    ·     s 19 (Prescribed concentration of alcohol in blood or breath)

    ·     s 20 (Driving with prescribed drug in oral fluid or blood)

    ·     s 22A (Refusing to provide oral fluid sample)

    ·     s 22B (Failing to stay for drug screening test)

    ·     s 47B (Police may direct person not to drive).

    The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

  2. New part 1A heading

    before section 4A, insert

Part 1AImportant concepts

  1. Meaning of special driver
    Section 4B (1) (f)

    substitute

    (f)the person is the driver of—

    (i)a vehicle on which a sign, marking or placard is required to be displayed under the Dangerous Substances Act 2004 or the Dangerous Goods (Road Transport) Act 2009; or

    NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

    (ii)a motor vehicle with a GVM of more than 15t; or

    (iii)a combination with a GCM of more than 15t; or

    (iv)a public passenger vehicle; or

    (g)the person is learning to drive a heavy vehicle; or

    (h)the person is a driving instructor who is with a driver for the purposes of—

    (i)driver instruction; or

    (ii)driver assessment; or

    (i)the person is a heavy vehicle driver assessor who is with a driver for the purposes of driver assessment; or

    (j)the person is a driving supervisor who is with a person who holds a learner licence (a learner driver) while the learner driver drives a motor vehicle that displays, or ought to display, L‑plates on a road or road related area.

  2. Section 4B (3) to (5)

    substitute

    (3)In this section:

    driver assessment—see the Road Transport (Driver Licensing) Regulation 2000, dictionary.

    driver instruction—see the Road Transport (Driver Licensing) Regulation 2000, dictionary.

    driving instructor—see the Road Transport (Driver Licensing) Regulation 2000, dictionary.

    driving supervisor—see the Road Transport (Driver Licensing) Regulation 2000, section 21 (1).

    heavy vehicle—see the Road Transport (Vehicle Registration) Act 1999, dictionary.

    heavy vehicle driver assessor—see the Road Transport (Driver Licensing) Regulation 2000, dictionary.

    public passenger vehicle—see the Road Transport (Public Passenger Services) Act 2001, dictionary.

  3. Sections 4C to 6

    substitute

4CMeaning of prescribed concentration of alcohol

For this Act, the prescribed concentration of alcohol in a person’s blood or breath is—

(a)for a special driver—more than 0g of alcohol in 100mL of blood or 210L of breath; or

(b)for any other person—0.05g or more of alcohol in 100mL of blood or 210L of breath.

4DHow alcohol concentration may be expressed

(1)For this Act, an analysis of a concentration of alcohol in a person’s blood or breath may be expressed as follows:

(a)the amount of alcohol, in grams, in 100mL of blood if the analysis is based on—

(i)a sample of blood; or

(ii)a sample of breath measured by a breath analysis instrument;

(b)the amount of alcohol, in grams, in 210L of breath if the analysis is based on a sample of breath measured by a breath analysis instrument.

(2)For this Act, an amount of alcohol measured in grams as part of 210L of breath is equivalent to the same amount of alcohol in grams as part of 100mL of blood.

4EReference to level of alcohol concentration

For this Act, a reference to a concentration of alcohol at a level mentioned in an item in table 4E, column 2, is a reference to the concentration of alcohol mentioned in the item, column 3, in 100mL of blood or 210L of breath.

Table 4E

column 1
item 		column 2
level 		column 3
alcohol concentration range
1 level 1 less than 0.05g
2 level 2 0.05g or more but less than 0.08g
3 level 3 0.08g or more but less than 0.15g
4 level 4 0.15g or more

4FMeaning of first offender and repeat offender

(1)A person who is convicted or found guilty of a disqualifying offence is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.

(2)A person who is convicted or found guilty of a disqualifying offence is a repeat offender in relation to the offence if—

(a)the person has been convicted or found guilty of a relevant offence committed at any time before the disqualifying offence was committed (whether or not the person had been convicted or found guilty of the relevant offence when the person committed the disqualifying offence); or

(b)the person is convicted or found guilty of 1 or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence.

(3)However, a person who is convicted or found guilty of a disqualifying offence that was committed before the commencement of the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010, section 8 is a repeat offender in relation to the offence only if—

(a)the person has been convicted or found guilty of a relevant offence within 5 years before being convicted or found guilty of the disqualifying offence; or

(b)the person is convicted or found guilty of 1 or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence.

(4)Subsection (3) and this subsection expire 5 years after the day this section commences.

(5)In this section:

relevant offence means—

(a)a disqualifying offence; or

(b)a corresponding offence; or

(c)an offence against the Crimes Act 1900, section 29 (Culpable driving of motor vehicle), in which the person who committed the offence was incapable of having proper control of a vehicle involved in the offence because of the influence of alcohol or a drug on the person.

NoteFound guilty, of an offence, includes having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing), (see Legislation Act, dict, pt 1).

  1. Authorisation of operators

    (1)The chief police officer may authorise a police officer to carry out either or both of the following for this Act:

    (a)breath analysis;

    (b)oral fluid analysis.

    (2)However, the chief police officer may authorise a police officer to carry out analysis mentioned in subsection (1) only if the chief police officer considers that the police officer is suitably qualified to carry out the analysis for which he or she is to be authorised.

5ARegister of authorised operators

(1)The chief police officer must keep a register of police officers authorised under section 5.

(2)The register—

(a)must state whether a police officer is authorised to carry out breath analysis, oral fluid analysis or both; and

(b)must include the service number of each police officer authorised under section 5; and

(c)may include any other information the chief police officer considers appropriate.

(3)The register may be kept in any form, including electronically, that the chief police officer decides.

(4)The chief police officer may correct any mistake, error or omission in the register subject to any requirements prescribed by regulation.

(5)The chief police officer may change a detail included in the register to keep the register up-to-date.

(6)The register must be available for public inspection, free of charge, during normal business hours on any business day.

5BAppointment of analysts

The road transport authority may appoint a person as an analyst for this Act.

Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

  1. Approval of laboratories

    The road transport authority may, in writing, approve a laboratory or other entity as an approved laboratory for this Act.

  2. New division 2.1

    before section 8, insert

Division 2.1               Important concepts—alcohol and drug tests

  1. Meaning of alcohol screening device

    In this Act:

    alcohol screening device means a device prescribed by regulation that is designed to analyse a sample of a person’s breath to indicate if the person’s blood or breath contains the presence of alcohol.

    NoteAn alcohol screening device is used to carry out an alcohol screening test.

7AMeaning of breath analysis instrument

In this Act:

breath analysis instrument means an instrument prescribed by regulation that is designed to analyse a sample of a person’s breath to record the concentration of alcohol in the person’s breath in either or both of the following:

(a)in grams per 100mL of blood;

(b)in grams per 210L of breath.

NoteA breath analysis instrument is used to carry out breath analysis.

7BMeaning of drug screening device

In this Act:

drug screening device means a device prescribed by regulation that is designed and made to indicate whether a prescribed drug is present in a person’s oral fluid when a sample of the person’s oral fluid is applied to the device.

7CMeaning of oral fluid analysis instrument

In this Act:

oral fluid analysis instrument means an instrument prescribed by regulation that is designed and made to indicate the presence of a prescribed drug in a sample of a person’s oral fluid.

7DTesting and maintenance of instruments etc

(1)A regulation may make provision in relation to the testing and maintenance of the following:

(a)alcohol screening devices;

(b)breath analysis instruments;

(c)oral fluid analysis instruments.

(2)Without limiting subsection (1), a regulation may make provision for approval by the chief police officer of people to test and maintain devices and instruments mentioned in that subsection.

Division 2.2               Alcohol—screening tests

  1. Section 8 heading

    substitute

  2. Power to require alcohol screening test if vehicle not involved in accident

  3. Section 8

    omit

    a screening test

    substitute

    an alcohol screening test

  4. Section 9 heading

    substitute

  5. Power to require alcohol screening test if vehicle involved in accident

  6. Section 9

    omit

    a screening test

    substitute

    an alcohol screening test

  7. Section 10 heading

    substitute

  8. Power to require alcohol screening test for culpable driving

  9. Section 10

    omit

    a screening test

    substitute

    an alcohol screening test

  10. Sections 11, 12 and 12AA

    substitute

Division 2.3               Alcohol—confirmatory tests

  1. Detention for breath analysis

    (1)This section applies if—

    (a)a person undergoes an alcohol screening test under a requirement made by a police officer under section 8, section 9 or section 10 and the alcohol screening device used for the test indicates that the concentration of alcohol in the person’s blood or breath is the prescribed concentration; or

    (b)a person required by a police officer to undergo an alcohol screening test under section 8, section 9 or section 10 fails to undergo the test in accordance with the directions of the police officer.

    NoteFail includes refuse, see the Legislation Act, dict, pt 1.

    (2)The police officer may take the person into custody.

    (3)For subsection (1) (a), if the police officer has reasonable cause to suspect that the person is a special driver, the prescribed concentration for the person is the prescribed concentration for a special driver.

    (4)If a person is taken into custody under this section, a police officer must take the person, as soon as practicable, to a police station or other convenient place (for example, a police vehicle) for the person to undergo breath analysis.

    Example—s (4)

    A person who is injured and is taken by a police officer to hospital for first aid and then to a police station for breath analysis has been taken to a police station as soon as practicable.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  1. Breath analysis

    (1)A person who has been taken into custody under section 11 must give, in accordance with the reasonable directions of a police officer (the requesting police officer), a sample of the person’s breath for breath analysis.

    (2)A breath analysis must be carried out by an authorised operator.

    (3)A regulation may make provision in relation the following:

    (a)the conditions for carrying out breath analysis;

    (b)the procedures to be followed in relation to carrying out breath analysis;

    (c)the circumstances in which the result of a breath analysis must be disregarded for this Act.

    (4)If, because of a regulation made for subsection (3) (c), the result of a breath analysis must be disregarded for this Act, the requesting police officer may, if another breath analysis instrument is available at the police station or other place where the requirement under subsection (1) is made, require the person to give, in accordance with the officer’s reasonable directions, a sample of the person’s breath for breath analysis using another breath analysis instrument.

    (5)As soon as practicable after the breath analysis has been carried out, the authorised operator who carried out the analysis must give the person a written statement, signed by the operator, containing the particulars required by regulation to be included in the statement.

  2. Section 13 heading

    substitute

  3. Precautions for privacy—breath analysis

  4. Section 13 (1)

    omit

    approved operator

    insert

    authorised operator

  5. Section 13

    omit

    or oral fluid

  6. New division 2.4

    after section 13, insert

Division 2.4               Prescribed drugs—screening tests

13APower to require drug screening test if vehicle not involved in accident

(1)A police officer may require a person to undergo 1 or more drug screening tests in accordance with the directions of the officer if—

(a)the person is the driver of a motor vehicle on a public street or in a public place; or

(b)the police officer has reasonable cause to suspect that, shortly before the requirement is made, the person was the driver of a motor vehicle on a public street or in a public place.

(2)The person must remain at the place where the drug screening test is being carried out until the test is completed in accordance with the police officer’s directions.

13BPower to require drug screening test if vehicle involved in accident

(1)If a motor vehicle is involved in an accident on a public street or in a public place, a police officer may require a person to undergo 1 or more drug screening tests in accordance with the directions of the officer—

(a)if the police officer has reasonable cause to suspect that the person was the driver of the motor vehicle at the time of the accident; or

(b)if—

(i)the police officer does not know or has doubt as to who was the driver of the motor vehicle at the time of the accident; and

(ii)the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident.

(2)The person must remain at the place where the drug screening test is being carried out until the test is completed in accordance with the police officer’s directions.

13CPower to require drug screening test for culpable driving

(1)A police officer who has reasonable cause to suspect that a person has committed an offence of culpable driving may require the person to undergo 1 or more drug screening tests in accordance with the directions of the officer.

(2)The person must remain at the place where the drug screening test is being carried out until the test is completed in accordance with the police officer’s directions.

Division 2.5               Prescribed drugs—confirmatory tests

13DDetention for oral fluid analysis

(1)This section applies if—

(a)a person undergoes a drug screening test under a requirement made by a police officer under section 13A, section 13B or section 13C and a drug screening device indicates to the police officer that a prescribed drug is present in the person’s oral fluid; or

(b)a person who has been required by a police officer under section 13A, section 13B or section 13C to undergo a drug screening test fails to undergo the screening test in accordance with the direction of the police officer.

NoteFail includes refuse, see the Legislation Act, dict, pt 1.

(2)The police officer may take the person into custody.

(3)If the person is taken into custody, a police officer must take the person, as soon as practicable, to a police station or another convenient place (for example, a police vehicle) to carry out an oral fluid analysis for the person.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

13EOral fluid—preliminary analysis

(1)A person who has been taken into custody under section 13D must give, in accordance with the reasonable directions of a police officer, a sufficient sample of the person’s oral fluid (the sample) for oral fluid analysis.

(2)An authorised operator must carry out an oral fluid analysis on a part of the sample.

(3)A regulation may make provision in relation the following:

(a)the conditions for carrying out an oral fluid analysis;

(b)the procedures to be followed in relation to carrying out an oral fluid analysis;

(c)the circumstances in which the result of an oral fluid analysis must be disregarded for this Act.

(4)If, because of a regulation made for subsection (3) (c), the result of an oral fluid analysis must be disregarded, the requesting police officer may, if another oral fluid analysis instrument is available at the police station or other place where the requirement under subsection (1) is made, require the person to give, in accordance with the officer’s reasonable directions, another sufficient sample of the person’s oral fluid for oral fluid analysis using another oral fluid analysis instrument.

(5)If an oral fluid analysis is not to be disregarded for this Act, the authorised operator who carried out the analysis must—

(a)place the part of the sample not analysed under this section into a container; and

(b)attach a label to the container that includes the following information:

(i)the authorised operator’s name;

(ii)the name of the person who gave the sample;

(iii)the date and time the sample was given; and

(c)ensure that the container is sealed with a tamper-evident seal that has a unique identifying number marked on it.

(6)As soon as practicable after the oral fluid analysis has been carried out, the authorised operator who carried out the analysis must give the person a written statement, signed by the operator, containing the particulars required by regulation to be included in the statement.

13FPrecautions for privacy—oral fluid analysis

(1)The authorised operator carrying out an oral fluid analysis must take all steps that are reasonably practicable to ensure that it is not readily apparent to members of the public that the oral fluid analysis is being carried out.

(2)Subsection (1) does not apply if the oral fluid analysis is carried out at a police station.

13GOral fluid—confirmatory analysis

(1)This section applies to the part of a sample of a person’s oral fluid stored and sealed in a container under section 13E (5) (the sample).

(2)The chief police officer must ensure that the sample is taken to an approved laboratory as soon as practicable after it is stored and sealed under section 13E (5).

(3)An analyst must, as soon as practicable, arrange for the analysis of the sample at an approved laboratory to work out whether a prescribed drug is present in the sample.

(4)The analyst must take reasonable care to ensure that a part of the sample (the preserved part) sufficient for analysis to be carried out for the person who gave the sample (the tested person) is protected and preserved until—

(a)if a request is made under subsection (6)—the preserved part is sent to the laboratory nominated by the tested person; or

(b)in any other case—

(i)1 year has passed since the sample was taken from the tested person; or

(ii)if a request is made by the DPP under section 16C (Keeping of samples—request by DPP)—the end of the proceeding to which the sample relates.

(5)However, subsection (4) does not apply if the amount of sample remaining after analysis under subsection (3) is insufficient for further analysis.

(6)Before the end of the period mentioned in subsection (4) (b), the tested person may ask that the preserved part of the sample be sent, at the tested person’s expense, to a laboratory nominated by the person.

(7)If a request is made under subsection (6), the analyst must ensure that the preserved part of the sample is sent to the nominated laboratory as soon as practicable.

Division 2.6               Restrictions on alcohol and drug tests

  1. Section 14 heading

    substitute

  2. Restrictions on tests etc under this part

  3. Section 14 (1)

    omit everything before paragraph (a), substitute

    (1)A police officer must not require a person to undergo a screening test, or provide a sample of the person’s breath or oral fluid for analysis under section 12 (Breath analysis) or section 13E (Oral fluid—preliminary analysis), and a police officer must not begin or continue an analysis under section 12 or section 13E—

  4. Section 14 (3)

    omit everything before paragraph (a), substitute

    (3)A police officer must not require a person to undergo a screening test, or provide a sample of the person’s breath or oral fluid for analysis under section 12 or section 13E—

  5. New section 14 (5)

    insert

    (5)In this section:

    screening test means an alcohol screening test or drug screening test.

  6. New division 2.7 heading

    before section 15, insert

Division 2.7               Analysis of blood—alcohol and drugs

  1. Taking blood samples from people in custody
    Section 15 (1) (b)

    substitute

    (b)it is not practicable to carry out a breath or oral fluid analysis because—

    (i)for a breath analysis, a breath analysis instrument is not available or an available breath analysis instrument is not in working order; or

    (ii)for oral fluid analysis, an oral fluid analysis instrument is not available or an available oral fluid analysis instrument is not in working order; or

    (c)a person is unable to provide a sufficient sample of oral fluid for analysis;

  2. Section 15 (3)

    substitute

    (3)In this section—

    (a)a reference to the taking of a blood sample is a reference to the taking of a blood sample under a requirement under subsection (1); and

    (b)a reference to an analysis of a blood sample is a reference to an analysis of the sample to detect alcohol, or a prescribed drug, or both.

  3. Section 15 (7), (8) and (9)

    substitute

    (7)The doctor or nurse (the sample taker) taking a sample of blood from a person (the tested person) must—

    (a)take the sample in the presence of a police officer; and

    (b)place the sample into a container; and

    (c)attach a label to the container that includes the following information:

    (i)the sample taker’s name;

    (ii)the tested person’s name;

    (iii)the date and time the sample was taken; and

    (d)ensure that the container is sealed with a tamper-evident seal that has a unique identifying number marked on it; and

    (e)put the sealed container into a one-way box.

    (8)The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.

  4. Taking blood samples from people in hospital
    Section 15AA (2) to (4)

    substitute

    (2)The person (the sample taker) taking a sample of blood from a patient must—

    (a)place the sample into a container; and

    (b)attach a label to the container that includes the following information:

    (i)the sample taker’s name;

    (ii)the patient’s name;

    (iii)the date and time the sample was taken; and

    (c)ensure that the container is sealed with a tamper-evident seal that has a unique identifying number marked on it; and

    (d)put the sealed container into a one-way box.

    (3)The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.

  5. Sections 15A and 15B

    substitute

15AAnalysis of blood samples

(1)This section applies if, under section 15 or section 15AA—

(a)a sample of blood is taken from a person (the tested person) for analysis; and

(b)an analyst has collected the sealed container containing the sample from a one-way box.

(2)The analyst must, as soon as practicable, arrange for the analysis of the sample of blood at an approved laboratory to work out, in accordance with a request made by a police officer—

(a)the concentration of alcohol in the blood; or

(b)whether a prescribed drug is present in the blood.

(3)If a police officer has reasonable cause to suspect that the tested person has a drug other than a prescribed drug or alcohol in the person’s body, or that the tested person’s behaviour may be affected by the presence of a drug other than a prescribed drug or alcohol in the person’s body, the police officer may ask the analyst to work out the following:

(a)whether 1 or more drugs other than a prescribed drug or alcohol are present in the sample;

(b)if a drug other than a prescribed drug or alcohol is present in the sample—the concentration, quantity or other measurement of the drug.

(4)The analyst must, as far as practicable, comply with the police officer’s request.

(5)The analyst must take reasonable care to ensure that a part of the sample sufficient for analysis to be carried out for the tested person (the preserved part) is protected and preserved until—

(a)if a request is made under subsection (7)—the preserved part is sent to the laboratory nominated by the tested person; or

(b)in any other case—

(i)1 year has passed since the sample was taken from the tested person; or

(ii)if a request is made by the DPP under section 16C (Keeping of samples—request by DPP)—the end of the proceeding to which the sample relates.

(6)However, subsection (5) does not apply if the amount of sample remaining after analysis under subsection (2) is insufficient for further analysis.

(7)Before the end of the period mentioned in subsection (5) (b), the tested person may ask that the preserved part of the sample be sent, at the tested person’s expense, to a laboratory nominated by the person.

(8)If a request is made under subsection (7), the analyst must ensure that the preserved part of the sample is sent to the nominated laboratory as soon as practicable.

15BBlood analysis statement

(1)As soon as practicable after an analysis of a sample of a person’s blood is carried out under section 15A, the chief police officer must ensure the person is given a written statement that includes the following information:

(a)the date and the time the blood sample was taken;

(b)the unique identifying number on the tamper-evident seal;

(c)the place where the blood sample was taken;

(d)the result of the analysis;

(e)the address where the preserved part of the blood sample is being held;

(f)that the person will be notified, in writing, of a request (if any) by the DPP under section 16C (Keeping of samples—request by DPP);

(g)that the person may, before the end of the period mentioned in section 15A (5) (b), ask the analyst to send the preserved part of the blood sample to a laboratory nominated by the person, at the person’s expense.

(2)In this section:

preserved part—see section 15A (5).

  1. Section 16 heading

    substitute

  2. Medical examination—offence against s 24 or culpable driving

  3. Section 16 (1)

    substitute

    (1)This section applies to a person who has been—

    (a)required to undergo an alcohol or drug screening test, or to provide a sample of the person’s breath or oral fluid for analysis under section 12 (Breath analysis) or section 13E (Oral fluid—preliminary analysis); and

    (b)arrested on reasonable suspicion of having committed an offence against section 24 (Driving under the influence of intoxicating liquor or a drug) or an offence of culpable driving.

  4. Section 16 (2)

    omit

    drug other than alcohol

    substitute

    drug (other than a prescribed drug) or alcohol

  5. Section 16 (7) to (9)

    substitute

    (7)The person (the sample taker) taking a sample from a person (the tested person) under this section must—

    (a)place the sample into a container; and

    (b)attach a label to the container that includes the following information:

    (i)the sample taker’s name;

    (ii)the tested person’s name;

    (iii)the date and time the sample was taken; and

    (c)ensure that the container is sealed with a tamper-evident seal that has a unique identifying number marked on it; and

    (d)put the sealed container into a one-way box.

    (8)The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.

  6. Section 16A

    substitute

16AAnalysis of body samples

(1)This section applies if, under section 16—

(a)a body sample is taken from a person (the tested person) for analysis; and

(b)an analyst has collected the sealed container containing the sample from a one-way box.

(2)The analyst must, as soon as practicable, arrange for the analysis of the sample at an approved laboratory to work out, as far as practicable—

(a)whether any drug (other than a prescribed drug) or alcohol was present in the tested person’s body when the sample was taken; and

(b)if the sample is of the tested person’s blood—the concentration, quantity or other measurement of a drug (other than a prescribed drug) or alcohol, in the sample.

(3)The analyst must take reasonable care to ensure that a part of the sample sufficient for analysis to be carried out for the tested person (the preserved part) is protected and preserved until—

(a)if a request is made under subsection (5)—the preserved part is sent to the laboratory nominated by the tested person; or

(b)in any other case—

(i)1 year has passed since the sample was taken from the tested person; or

(ii)if a request is made by the DPP under section 16C (Keeping of samples—request by DPP)—the end of the proceeding to which the sample relates.

(4)However, subsection (3) does not apply if the amount of sample remaining after analysis under subsection (2) is insufficient for further analysis.

(5)Before the end of the period mentioned in subsection (3) (b), the tested person may ask that the preserved part of the sample be sent, at the tested person’s expense, to a laboratory nominated by the person.

(6)If a request is made under subsection (5), the analyst must ensure that the preserved part of the sample is sent to the nominated laboratory as soon as practicable.

16BBody sample statement

(1)As soon as practicable after an analysis of a person’s body sample is carried out under section 16A, the chief police officer must ensure the person is given a written statement that includes the following information:

(a)the date and the time the body sample was taken;

(b)the unique identifying number on the tamper-evident seal;

(c)the place where the body sample was taken;

(d)the result of the analysis;

(e)the address where the preserved part of the body sample is being held;

(f)that the person will be notified, in writing, of a request (if any) by the DPP under section 16C (Keeping of samples—request by DPP);

(g)that the person may, before the end of the period mentioned in section 16A (3) (b), ask the analyst to send the preserved part of the body sample to a laboratory nominated by the person, at the person’s expense.

(2)In this section:

preserved part—see section 16A (3).

16CKeeping of samples—request by DPP

(1)This section applies if—

(a)a blood or a body sample was taken from a person (the tested person) under this part for analysis; and

(b)the preserved part of the sample—

(i)is being kept at the approved laboratory where the analysis was carried out; and

(ii)has not been sent to a nominated laboratory under section 15A (7) (Analysis of blood samples) or section 16A (5) (Analysis of body samples); and

(c)a proceeding against the tested person—

(i)has not yet begun; or

(ii)has begun and not yet been finally decided (including any appeals).

(2)The DPP may ask the approved laboratory to keep the preserved part of the sample until the end of the proceeding (including any appeals).

(3)If the DPP makes a request under subsection (2), the DPP must tell the tested person about the request as soon as practicable.

(4)In this section:

preserved part—

(a)in relation to a blood sample—see section 15A (5); or

(b)in relation to a body sample—see section 16A (3).

16DDestruction of samples

(1)This section applies to the part of a sample preserved under section 15A (5) (Analysis of blood samples) or section 16A (3) (Analysis of body samples).

(2)An analyst must arrange for the preserved part to be destroyed after the end of the period for which the preserved part must be kept under section 15A (5) (b) or section 16A (3) (b).

  1. Exemptions from requirements to take blood samples or carry out examinations
    Section 17 (2) (b)

    omit

    section 16 (Medical examinations)

    substitute

    section 16 (Medical examination—offence against s 24 or culpable driving)

  2. Protection of police officers and medical staff
    Section 18 (3) (a)

    omit

    approved operator

    substitute

    authorised operator

  3. Section 18 (3) (a)

    omit

    section 12 (7)

    substitute

    section 12 (5) or section 13E (6)

  4. Section 18B

    substitute

18BPermitted use of samples

A sample of oral fluid, blood or any other body sample given or taken under this Act may only be used for the following purposes:

(a)analysis of the sample in accordance with this Act;

(b)research relating to drivers of motor vehicles affected by drugs, but only if identifying information about the person who provided the sample cannot be ascertained from it;

(c)a proceeding for an offence of culpable driving.

  1. Section 19

    substitute

  2. Prescribed concentration of alcohol in blood or breath

    (1)A person commits an offence if the person—

    (a)has been the driver of a motor vehicle on a public street or in a public place; and

    (b)has, within the relevant period, the prescribed concentration of alcohol in the person’s blood or breath.

    (2)Strict liability applies to subsection (1).

    (3)A person convicted of an offence against subsection (1) is punishable in accordance with section 26.

    (4)In a proceeding for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person’s blood or breath based on—

    (a)for proof of the concentration of alcohol in the person’s blood or breath—an analysis of a sample of the person’s breath carried out in accordance with this Act; or

    (b)for proof of the concentration of alcohol in the person’s blood—an analysis of a sample of the person’s blood carried out at an approved laboratory and certified accurate by an analyst.

    (5)In this section:

    relevant period means the period beginning when the person ceased to be the driver of the vehicle and ending at the latest time when—

    (a)a breath analysis of the person could be carried out under this Act; or

    (b)if a sample of the person’s blood was taken under section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital)—a sample of the person’s blood could be taken under the section.

  3. New section 19B

    insert

19BDefence if special driver with lower concentration of alcohol from allowable source

(1)This section applies if—

(a)a person is a special driver charged with an offence against section 19; and

(b)the concentration of alcohol in the person’s blood or breath within the relevant period was not more than 0.02g in 100mL of the person’s blood or 210L of the person’s breath.

(2)It is a defence to a prosecution for the offence if the defendant proves that the concentration of alcohol in the defendant’s blood or breath was caused by—

(a)the consumption of an alcoholic beverage that formed part of a religious observance; or

(b)the consumption or use of a substance that was not, entirely or partly, consumed or used for its alcohol content.

Example—substance

food or medicine that contains alcohol

Note 1A defendant has a legal burden in relation to the matters mentioned in s (2) (see Criminal Code, s 59).

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  1. Driving with prescribed drug in oral fluid or blood
    New section 20 (1A) and (1B)

    insert

    (1A)Strict liability applies to subsection (1).

    (1B)In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person’s oral fluid or blood based on—

    (a)for proof of the presence of a prescribed drug in the person’s oral fluid—an analysis of a part of a sample of the person’s oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or

    (b)for proof of the presence of a prescribed drug in the person’s blood—an analysis of a part of a sample of the person’s blood under section 15A (Analysis of blood samples) that indicates that a prescribed drug is present in the sample.

  2. Defence if person did not intend to drive motor vehicle
    Section 21 (b)

    substitute

    (b)the person did not intend to drive the motor vehicle until a time when the concentration of alcohol in the person’s blood or breath was no longer the prescribed concentration for the person.

  3. Section 21 (as amended)

    relocate as section 19A

  4. Refusing to provide oral fluid sample
    New section 22A (3) and (4)

    insert

    (3)An offence against this section is a strict liability offence.

    (4)It is a defence to a prosecution for an offence against subsection (2) (b) if the defendant proves that the failure was based on medical grounds.

    NoteThe defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

  5. New section 22B

    insert

22BFailing to stay for drug screening test

(1)A person commits an offence if the person—

(a)is required by a police officer under division 2.4 to undergo a drug screening test; and

(b)fails to remain at the place where the test is being carried out until the test is completed in accordance with the police officer’s directions.

Maximum penalty:  20 penalty units.

Note 1A police officer may require a person to undergo a drug screening test under s 13A, s 13B or s 13C.

Note 2Fail includes refuse, see the Legislation Act, dict, pt 1.

(2)An offence against this section is a strict liability offence.

  1. Fines and imprisonment—s 19 offences
    Section 26

    after

    person’s blood

    insert

    or breath

  2. Table 26, column 2 heading

    substitute

    column 2

    alcohol
    concentration level

  3. Sections 29 and 30

    omit

  4. Automatic driver licence disqualification—first offenders, s 19
    Section 32

    after

    person’s blood

    insert

    or breath

  5. Table 32, column 2 heading

    substitute

    column 2

    alcohol
    concentration level

  6. Automatic driver licence disqualification—repeat offenders, s 19
    Section 33

    after

    person’s blood

    insert

    or breath

  7. Table 33, column 2 heading

    substitute

    column 2

    alcohol
    concentration level

  8. New section 35

    insert

  9. Automatic driver licence disqualification—immediate suspension period

    (1)This section applies to a person if the person—

    (a)is given an immediate suspension notice; and

    (b)is convicted or found guilty of the immediate suspension offence to which the notice relates; and

    (c)is disqualified under this part from holding or obtaining a driver licence.

    (2)The period for which the person is disqualified under this part from holding or obtaining a driver licence (including any period of minimum disqualification under section 32 or section 33) is reduced by the period that the person’s driver licence was suspended under the Road Transport (General) Act 1999, section 61B.

    (3)However, subsection (2) does not apply if, on hearing the charge for the immediate suspension offence, a court is satisfied that the person did not comply with the immediate suspension notice.

    (4)In this section:

    immediate suspension notice—see the Road Transport (General) Act 1999, dictionary.

    immediate suspension offence—see the Road Transport (General) Act 1999, dictionary.

  10. Additional powers of court
    Section 38

    omit

  11. Section 41 heading

    substitute

Division 7.1               Evidence—alcohol-related tests

  1. Evidentiary certificate—alcohol-related tests

  2. Section 41 (1) (a) (i)

    omit

    approved operator

    substitute

    authorised operator

  3. Section 41 (1) (a) (ii)

    omit

    an approved breath analysis instrument

    substitute

    a breath analysis instrument

  4. Section 41 (1) (a) (iv) and (ix)

    omit

    approved breath analysis instrument

    substitute

    breath analysis instrument

  5. Section 41 (1) (aa)

    omit

  6. Section 41 (1) (b) (i)

    omit

    approved operator

    substitute

    authorised operator

  7. Section 41 (1) (b) (ii)

    omit

    an approved breath analysis instrument

    substitute

    a breath analysis instrument

  8. Section 41 (1) (b) (iv)

    omit

    approved breath analysis instrument

    substitute

    breath analysis instrument

  9. Section 41 (1) (b) (vi)

    omit

    analysis; and

    substitute

    analysis;

  10. Section 41 (ba)

    omit

  11. Section 41 (1) (c) and (d)

    substitute

    (c)a written statement mentioned in section 12 (5) that is a print‑out from a breath analysis instrument is evidence of the matters stated in the statement; and

    (d)a certificate that appears to be signed by a person who is a doctor or nurse and states the following is evidence of the matter:

    (i)that the person is a doctor or nurse;

    (ii)that the person took a sample of blood or other body sample from a person mentioned in the certificate (the relevant person) on a stated day, at a stated time, in a stated place;

    (iii)that the person placed the sample of blood or other body sample into a container;

    (iv)that the person attached a label to the container that contained the following information:

    (A)the person’s name;

    (B)the relevant person’s name;

    (C)the date and time the sample was taken;

    (v)that the person sealed the container with a tamper-evident seal that had a stated unique identifying number marked on it;

    (vi)that the person placed the sealed container into a one-way box;

    (vii)if the sample was taken under section 15—that, when the sample was taken, the person was of the opinion that the relevant person was, at that time, because of the relevant person’s medical condition, incapable of giving or refusing permission to take a sample of blood; and

  12. Section 41 (1) (e) (iii)

    substitute

    (iii)that the doctor or authorised nurse practitioner was told by a police officer that the police officer intended to require a person to—

    (A)undergo an alcohol screening test under division 2.2 (Alcohol—screening tests); or

    (B)provide a sample of the person’s breath for analysis under section 12 (Breath analysis);

  13. Section 41 (1) (f)

    omit

  14. Section 41 (1) (h)

    substitute

    (h)a certificate that appears to be signed by a person who is an analyst and states the following is evidence of the matter:

    (i)that the person is an analyst;

    (ii)that a blood sample or other body sample (the analysed sample) was analysed at an approved laboratory;

    (iii)that the analysed sample was in a container—

    (A)labelled in accordance with section 15 (7) (Taking blood samples from people in custody), section 15AA (2) (Taking blood samples from people in hospital) or section 16 (7) (Medical examination—offence against s 24 or culpable driving); and

    (B)sealed with a tamper-evident seal marked with a stated unique identifying number;

    (iv)that the tamper-evident seal did not appear to have been interfered with;

    (v)the analysis to which the analysed sample was subjected;

    (vi)the result of the analysis;

    (vii)that the analysis was accurate; and

  15. New division 7.2

    before section 41A, insert

Division 7.2               Evidence—drug-related tests

41AAEvidentiary certificates—drug-related tests

(1)A certificate that appears to be signed by a police officer and states a matter relevant to any of the following is evidence of the matter:

(a)that the police officer was on a stated date an authorised operator;

(b)that, at a place and at a time and on a date stated in the certificate, a person named in the certificate was required by a stated police officer to provide a sample of the person’s oral fluid for analysis by an oral fluid analysis instrument;

(c)the instrument used in the analysis, by reference to its model number, patent number and serial number;

(d)that the oral fluid analysis instrument was in proper working order;

(e)the procedures followed and precautions taken immediately before the oral fluid analysis, during the oral fluid analysis and immediately after the completion of the oral fluid analysis;

(f)that the person named in the certificate provided a sample of the person’s oral fluid for analysis in accordance with the directions of the police officer who made the requirement;

(g)the steps that were taken to ensure that it was not readily apparent to members of the public that the oral fluid analysis was being carried out;

(h)that, in following the procedures for which a regulation makes provision that stated results are to be obtained, the results stated in the certificate were obtained;

(i)that, as soon as practicable after the oral fluid analysis was carried out, the police officer signed and gave to the person mentioned in paragraph (b) the statement required by section 13E (6).

(2)A certificate that appears to be signed by a police officer and states a matter relevant to any of the following is evidence of the matter:

(a)that the police officer was on a stated date an authorised operator;

(b)that, at a place and at a time and on a date stated in the certificate, a person named in the certificate was required by a stated police officer to provide a sample of the person’s oral fluid for analysis by an oral fluid analysis instrument;

(c)the instrument available to be used in the analysis, by reference to its model number, patent number and serial number;

(d)that the oral fluid analysis instrument was in proper working order;

(e)the procedures followed immediately before the person was required to provide a sample of the person’s oral fluid for analysis and the results obtained in following those procedures;

(f)that the person failed to provide a sample of the person’s oral fluid for analysis.

NoteFail includes refuse, see the Legislation Act, dict, pt 1.

(3)A written statement mentioned in section 13E (6) that is a print-out from an oral fluid analysis instrument is evidence of the matters stated in the print-out.

(4)A certificate that appears to be signed by a person who is a doctor or authorised nurse practitioner and states any of the following is evidence of the matter:

(a)that the person is a doctor or nurse;

(b)that, at a stated hospital, on a stated date and at a stated time, the person was attending the person named in the certificate (the relevant person);

(c)that the person was told by a police officer of the officer’s intention to require the relevant person to—

(i)undergo a drug screening test under division 2.4 (Prescribed drugs—screening tests); or

(ii)provide a sample of the person’s oral fluid for analysis under section 13E (Oral fluid—preliminary analysis);

(d)whether the person was of the opinion, at the time the person was told, that complying with the requirement would, or would not, be detrimental to the relevant person’s medical condition.

41ABEvidentiary certificate—analysis of oral fluid sample

A certificate that appears to be signed by a person who is an analyst and states a matter relevant to any of the following is evidence of the matter:

(a)that the person is an analyst;

(b)that the person arranged for a sample of oral fluid (the analysed sample) to be analysed at an approved laboratory;

(c)that the analysed sample was—

(i)labelled in accordance section 13E (5) (b) (Oral fluid—preliminary analysis); and

(ii)sealed with a tamper-evident seal marked with a stated unique identifying number;

(d)that the tamper-evident seal did not appear to have been interfered with;

(e)the analysis to which the analysed sample was subjected;

(f)the result of the analysis;

(g)that the analysis was accurate.

41ACEvidentiary certificate—blood sample not taken

A certificate that appears to be signed by a person who is a doctor or nurse (a sample taker) and states a matter relevant to any of the following is evidence of the matter:

(a)that the person is a doctor or nurse;

(b)that the sample taker attended a person mentioned in the certificate (the relevant person) on a stated day, at a stated time, in a stated hospital;

(c)if the relevant person is a person mentioned in section 15 (Taking blood samples from people in custody)—that a police officer had asked the sample taker to take a sample of the person’s blood;

(d)if the relevant person is a person mentioned in section 15AA (Taking blood samples from people in hospital)—that the sample taker believed that the relevant person—

(i)was involved in an accident and had attended the hospital for examination or treatment because of the accident; and

(ii)the accident had happened not longer than 6 hours before the relevant person arrived at the hospital;

(e)whether the sample taker was of the opinion that—

(i)taking the sample would, or would not, be detrimental to the relevant person’s health; or

(ii)a sample of blood had, or had not, been taken from the relevant person since the accident mentioned in section 15 or section 15AA.

41ADEvidentiary certificate—analysis of sample for prescribed drug etc

A certificate that appears to be signed by a person who is an analyst and states a matter relevant to any of the following is evidence of the matter:

(a)that the person is an analyst;

(b)that the analyst arranged for a blood sample or body sample (the analysed sample) to be analysed at an approved laboratory to work out whether a prescribed drug, or a drug other than a prescribed drug, or alcohol was present in the sample, in accordance with a request made by a police officer;

Part 6Road Transport (General) Regulation 2000

  1. Schedule 1, part 1.1

    omit

  2. Schedule 1, part 1.4, new items 24A and 24B

    insert

24A 73H (1) (b) road transport authority—refuse to grant exemption from requirement to attend alcohol awareness course
24B 73Q (1) (b) road transport authority—refuse to grant exemption from requirement to attend drug awareness course

Part 7Road Transport (Offences) Regulation 2005

  1. Schedule 1, part 1.3, new item 6A

    insert

6A 20 (1)
6A.1 ·      first offender drive motor vehicle on street/place with prescribed drug in oral fluid or blood—first offender 10
6A.2 ·      repeat offender drive motor vehicle on street/place with prescribed drug in oral fluid or blood—repeat offender 25 pu/3 months prison/both

  1. Schedule 1, part 1.3, new items 8A to 8C

    insert

8A 22A (2) (a)
8A.1 ·      first offender refuse to provide sample of oral fluid for analysis 30pu/6 months prison/both
8A.2 ·      repeat offender refuse to provide sample of oral fluid for analysis 30pu/12 months prison/both
8B 22A (2) (b)
8B.1 ·      first offender fail to provide sample of oral fluid in accordance with reasonable directions of police officer 30pu/6 months prison/both
8B.2 ·      repeat offender fail to provide sample of oral fluid in accordance with reasonable directions of police officer 30pu/12 months prison/both
8C 22B failing to stay for drug screening test 20

  1. Schedule 1, part 1.3, items 10 to 12

    substitute

10 23 (2)
10.1 ·      first offender behave in manner so impossible/impractical for blood sample to be taken—first offender 30 pu/6 months prison/both
10.2 ·      repeat offender behave in manner so impossible/impractical for blood sample to be taken—repeat offender 30 pu/12 months prison/both
11 23 (3) (a)
11.1 ·      first offender fail/refuse to submit to medical examination—first offender 30 pu/6 months prison/both
11.2 ·      repeat offender fail/refuse to submit to medical examination—repeat offender 30 pu/12 months prison/both
12 23 (3) (b)
12.1 ·      first offender fail/refuse to give/permit taking of body sample—first offender 30 pu/6 months prison/both
12.2 ·      repeat offender fail/refuse to give/permit taking of body sample —repeat offender 30 pu/12 months prison/both

  1. Schedule 1, part 1.3, item 15

    substitute

15 47B fail to comply with police officer’s direction not to drive 10

  1. Schedule 1, part 1.6, items 11 and 12

    substitute

11 21 (5) (a) driving supervisor not supervise learner driver 20 99
12 21 (5) (b) driving supervisor not take precautions to prevent contravention by learner driver 20 99

  1. Schedule 1, part 1.7, items 6 to 8

    substitute

6 58 (2)
6.1 ·      requirement under 58 (1) (a) driver/rider not produce licence 20 99
6.2 ·      requirement under 58 (1) (b) driver/rider not state name 20
6.3 ·      requirement under 58 (1) (c) driver/rider not state date of birth 20
6.4 ·      requirement under 58 (1) (d) driver/rider not state home address 20
7 58A (3)
7.1 ·      requirement under 58A (2) (a) supervisor/instructor/assessor not produce licence 20 99
7.2 ·      requirement under 58A (2) (b) supervisor/instructor/assessor not state name 20
7.3 ·      requirement under 58A (2) (c) supervisor/instructor/assessor not state date of birth 20
7.4 ·      requirement under 58A (2) (d) supervisor/instructor/assessor not state home address 20

  1. Schedule 1, part 1.7, new items 12A and 12B

    insert

12A 61C
12A.1 ·   holder of driver licence contravene s 61B (4) (d) drive while suspension notice in effect (driver licence holder) 20
12A.2 ·   holder of interstate driver licence/external driver licence contravene s 61B (4) (e) drive while suspension notice in effect (interstate/external driver licence holder) 20
12B 61D (1) fail to surrender suspended licence 20

  1. Schedule 1, part 1.7, item 13

    substitute

13 66 (4) not surrender licence when disqualified 20

Schedule 1Consequential amendments

(see s 3)

Part 1.1Crimes Act 1900

[1.1]Section 220 (4), definition of relevant offence, paragraph (b) (iv)

substitute

(iv)the Road Transport (Alcohol and Drugs) Act 1977, section 19 (Prescribed concentration of alcohol in blood or breath) or section 20 (Driving with prescribed drug in oral fluid or blood);

[1.2]Section 252F (3) (b)

omit

breath analysis

substitute

a drug screening test, or breath or oral fluid analysis,

Part 1.2Road Transport (Alcohol and Drugs) Regulation 2000

[1.3]Section 4

substitute

  1. Alcohol screening device—Act, s 7, def alcohol screening device

    The following devices are prescribed:

    (a)Alcolizer LE;

    (b)lion alcolmeter SD-400.

  2. Breath analysis instrument—Act, s 7A, def breath analysis instrument

    The Dräger Alcotest 7110 MKV is prescribed.

  3. Breath analysis—requirements for statement under Act, s 12 (5)

    A statement given to a person under the Act, section 12 (5) in relation to an analysis of a sample of the person’s breath must include the information mentioned in schedule 1.

  4. Oral fluid analysis—requirements for statement under Act, s 13E (6)

    A statement given to a person under the Act, section 13E (6) in relation to an analysis of a sample of the person’s oral fluid must include the following information:

    (a)the date and time the sample was taken;

    (b)the place where the sample was taken;

    (c)the result of the oral fluid analysis;

    (d)that a part of the sample has been sent to an approved laboratory for confirmation of the result;

    (e)the name and address of the approved laboratory;

    (f)that the sample has been stored in a container sealed with a tamper-evident seal marked with a unique identifying number;

    (g)the unique identifying number marked on the tamper-evident seal;

    (h)that the person will be given written notification of the result of the laboratory analysis.

[1.4]Schedule 1 heading

substitute

Schedule 1Particulars for breath analysis carried out using a Dräger Alcotest 7110 MKV

[1.5]Schedule 1, item 5

omit

approved operator

substitute

authorised operator

Part 1.3Spent Convictions Act 2000

[1.6]Section 14 (4) (c)

omit everything after

part 3

insert

(which is about drivers having the prescribed concentration of alcohol in blood or breath, driving with a prescribed drug in oral fluid or blood, refusing to provide a breath sample, oral fluid, blood test for analysis, failing to stay for a drug screening test or driving under the influence of intoxicating liquor);

Part 1.4Workers Compensation Act 1951

[1.7]Section 82 (4) (a)

substitute

(a)at the time of the injury, the worker was under the influence of alcohol or a prescribed drug, unless the alcohol or prescribed drug did not contribute to the injury or was not consumed or taken voluntarily; or

[1.8]Section 82 (5)

substitute

(5)In this section:

prescribed drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 28 October 2010.

  2. Notification

    Notified under the Legislation Act on 25 November 2010.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010, which was passed by the Legislative Assembly on 18 November 2010.

    Acting Clerk of the Legislative Assembly

    © Australian Capital Territory 2010

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