Road Transport (Safety and Traffic Management) Act 1999 (NSW)
An Act to facilitate the adoption of nationally consistent road rules in New South Wales; to make provision with respect to other matters concerning safety and traffic management on roads and road related areas; and for other purposes.
This Act and the statutory rules made under it form part of the
This Act is the Road Transport (Safety and Traffic Management) Act 1999.
This Act commences on a day or days to be appointed by proclamation.
The objects of this Act are as follows:
(a) to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth,
Note— The Agreements concerned were the Heavy Vehicle Agreement and the Light Vehicle Agreement. The Commonwealth Act referred to has been repealed and replaced by the National Transport Commission Act 2003. That Act does not have any Agreements scheduled to it but does make provision for an Agreement “entered into in relation to [that] Act”. That Agreement is the Inter-Governmental Agreement for Regulatory and Operational Reform in Road, Rail and Intermodal Transport.
(b) to re-enact with some modifications certain other provisions of the Traffic Act 1909 (as in force immediately before its repeal by the Road Transport Legislation Amendment Act 1999) relating to safety and traffic management,
(c) to improve safety and efficiency of transport on roads and road related areas,
(d) to reduce the costs of the administration of road transport.
Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of the Act have the meanings set out in the Dictionary.
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
The regulations may apply (whether with or without modifications) any or all of the provisions of the Acts Interpretation Act 1901 of the Commonwealth to the interpretation of:
(a) this Act or the regulations (or to specified provisions of this Act or the regulations), or
(b) to any instrument made under this Act or the regulations (or to specified provisions of any such instrument).
This section does not prevent the Interpretation Act 1987 from applying to any provision of this Act or the regulations (or of an instrument made under this Act or the regulations) to the extent that it can do so consistently with the application of the Acts Interpretation Act 1901 of the Commonwealth to any such provision by a regulation referred to in subsection (1).
Notes included in this Act are explanatory notes and do not form part of this Act.
For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention (“cf”) to equivalent or comparable (though not necessarily identical) provisions of other Acts. Abbreviations in the notes include:
• Cth Act: Road Transport Reform (Vehicles and Traffic) Act 1993 of the Commonwealth
• Traffic Act: Traffic Act 1909 (as in force immediately before its repeal by the Road Transport Legislation Amendment Act 1999)
In this Part:
(a) a licence issued under a law in force in a State or internal Territory authorising the holder to drive one or more classes of motor vehicle on a road or road related area,
(b) a driver licence receipt for a licence referred to in paragraph (a),
(c) a foreign driver licence.
(a) a person who holds a learner licence of a class of motor vehicles that includes the motor vehicle, or
(b) a person who is learning to drive the motor vehicle in circumstances where:
(i) the person holds a driver licence of a class of motor vehicles that does not include the motor vehicle, and
(ii) the person is permitted under the regulations to learn to drive the motor vehicle despite not having a driver licence for motor vehicles of that class.
(a) a learner licence within the meaning of the Road Transport (Driver Licensing) Act 1998 or a driver licence receipt for such a licence,
(b) a foreign driver licence that has the same or similar effect as a licence referred to in paragraph (a).
(a) a person who is the holder of a learner licence or a provisional licence of a class that includes the motor vehicle, or
(b) a person who is not authorised to drive the motor vehicle in New South Wales because the person (in New South Wales or elsewhere) has had his or her application for a learner licence or provisional licence of a class that includes the motor vehicle refused, or
(c) a person who is not authorised to drive the motor vehicle in New South Wales because the person (in New South Wales or elsewhere) has ceased to hold a learner licence or provisional licence of a class that includes the motor vehicle as a result of:
(i) the cancellation or suspension of the licence, or
(ii) the disqualification of the person from holding a driver licence, or
(iii) the expiry of the licence, or
(d) a person who is not authorised to drive the motor vehicle in New South Wales because the person (in New South Wales or elsewhere) has never obtained a driver licence for any class of motor vehicle.
(a) a provisional P1 licence or a provisional P2 licence,
(b) a licence issued under a law in force in a State or internal Territory, or a foreign driver licence, that has the same or similar effect as a licence referred to in paragraph (a) or is prescribed by the regulations as an equivalent licence for the purposes of this definition,
(c) a driver licence receipt for a licence referred to in paragraph (a) or for a State or internal Territory licence referred to in paragraph (b).
(Repealed)
For the purposes of this Part, a person is a
(a) if the person is the holder of a learner licence or a provisional licence for motor vehicles of a class that includes that motor vehicle, or
(b) if the person is not authorised to drive that motor vehicle in New South Wales because:
(i) the person (in New South Wales or elsewhere) has had his or her application for a relevant driver licence or authority refused, or
(ii) the person (in New South Wales or elsewhere) has ceased to hold a relevant driver licence or authority as a result of the cancellation or suspension of the licence or authority, or
(iii) the person (in New South Wales or elsewhere) has ceased to hold a relevant driver licence or authority as a result of the expiry of the licence or authority (being a licence or authority that has been expired for a period of more than 6 months), or
(iv) the person (in New South Wales or elsewhere) has been disqualified from driving, or
(v) the person has never obtained a relevant driver licence or authority, or
(c), (d) (Repealed)
(e) if that motor vehicle is being driven for hire or reward, or in the course of any trade or business, as a public passenger vehicle within the meaning of the Passenger Transport Act 1990, or
(f) if that motor vehicle is a coach or heavy motor vehicle, or
(g) if that motor vehicle (or any trailer being towed by the motor vehicle):
(i) is required, because it carries dangerous goods within the meaning of the Dangerous Goods (Road and Rail Transport) Act 2008, to have a sign exhibited on it by regulations under either Act, or under any code prescribed for the purposes of this paragraph by regulations under this Act, or
(ii) carries any radioactive substance within the meaning of the Radiation Control Act 1990.
For the purposes of this Part, a person is a
In this Part:
(a) novice range prescribed concentration of alcohol means a concentration of more than zero grammes, but less than 0.02 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and(b) special range prescribed concentration of alcohol means a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and(c) low range prescribed concentration of alcohol means a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and(d) middle range prescribed concentration of alcohol means a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 210 litres of breath or 100 millilitres of blood, and(e) high range prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 100 millilitres of blood.
For the purposes of this Part, the concentration of alcohol present in a person’s breath or blood may be expressed as follows:
(a) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath—the amount of alcohol in grammes in 210 litres of breath,
(b) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood—the amount of alcohol in grammes in 100 millilitres of blood,
(c) in the case of a sample of blood—the amount of alcohol in grammes in 100 millilitres of blood.
An amount of alcohol in grammes present in breath when measured by reference to 210 litres of breath is equivalent to the same amount of alcohol in grammes present in blood when measured by reference to 100 millilitres of blood.
Accordingly, any offence under this Part relating to the presence of a specified concentration of alcohol in a person’s breath or blood at the time of the occurrence of a particular event is a single offence regardless of whether the concentration of alcohol concerned is measured by reference to the amount of alcohol present in breath or in blood (or both).
A novice driver must not, while there is present in his or her breath or blood the novice range prescribed concentration of alcohol:
(a) drive the motor vehicle, or
(b) occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.
Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).
A person must not, while there is present in his or her breath or blood the special range prescribed concentration of alcohol:
(a) if the person is a special category driver in respect of a motor vehicle—drive the motor vehicle, or
(b) if the person is a special category driver in respect of a motor vehicle—occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is a special category supervisor in respect of a motor vehicle and the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).
A person must not, while there is present in his or her breath or blood the low range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).
A person must not, while there is present in his or her breath or blood the middle range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Maximum penalty: 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
A person must not, while there is present in his or her breath or blood the high range prescribed concentration of alcohol:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
Division 1 of Part 5.4 of the Road Transport (General) Act 2005 provides for the disqualification of persons from holding driver licences for certain offences (including offences under this section).
If, on a prosecution of a person for an offence under section 9 (3), the court is satisfied that, at the time the person did the act referred to in section 9 (3) (a), (b) or (c), there was not present in the person’s breath or blood the middle range prescribed concentration of alcohol but there was present in the person’s breath or blood the low range prescribed concentration of alcohol, the court may convict the person of an offence under section 9 (2).
If, on a prosecution of a person for an offence under section 9 (4), the court is satisfied that, at the time the person did the act referred to in section 9 (4) (a), (b) or (c), there was not present in the person’s breath or blood the high range prescribed concentration of alcohol:
(a) if the court is satisfied that the middle range prescribed concentration of alcohol was present in the person’s breath or blood—the court may convict the person of an offence under section 9 (3), or
(b) if the court is satisfied that the low range prescribed concentration of alcohol was present in the person’s breath or blood—the court may convict the person of an offence under section 9 (2).
If, on a prosecution of a person for an offence under section 9 (2), (3) or (4), relating to driving a motor vehicle or to occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion, the court is satisfied that, at the time the person drove the motor vehicle or occupied the driving seat and attempted to put the motor vehicle in motion:
(a) the person was a special category driver in respect of the motor vehicle, and
(b) there was not present in the person’s breath or blood the high range prescribed concentration of alcohol, the middle range prescribed concentration of alcohol or the low range prescribed concentration of alcohol,
but that there was present in the person’s breath or blood the special range prescribed concentration of alcohol, the court may convict the person of an offence under section 9 (1).
If, on a prosecution of a person for an offence under section 9 (1), (2), (3) or (4), relating to driving a motor vehicle or to occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion, the court is satisfied that, at the time the person drove the motor vehicle or occupied the driving seat and attempted to put the motor vehicle in motion:
(a) the person was the holder of a learner licence or a provisional licence in respect of the motor vehicle, and
(b) there was not present in the person’s breath or blood the high range prescribed concentration of alcohol, the middle range prescribed concentration of alcohol, the low range prescribed concentration of alcohol or the special range prescribed concentration of alcohol,
but that there was present in the person’s breath or blood the novice range prescribed concentration of alcohol, the court may convict the person of an offence under section 9 (1A).
It is not a defence to a prosecution for an offence under section 9 (1A) if the defendant proves that, at the time he or she did the act referred to in section 9 (1A) (a) or (b), there was present in the defendant’s breath or blood a concentration of alcohol of 0.02 grammes or more in 210 litres of breath or 100 millilitres of blood.
It is not a defence to a prosecution for an offence under section 9 (1) if the defendant proves that, at the time he or she did the act referred to in section 9 (1) (a), (b) or (c), there was present in the defendant’s breath or blood a concentration of alcohol of 0.05 grammes or more in 210 litres of breath or 100 millilitres of blood.
It is not a defence to a prosecution for an offence under section 9 (2) if the defendant proves that, at the time he or she did the act referred to in section 9 (2) (a), (b) or (c), there was present in the defendant’s breath or blood a concentration of alcohol of 0.08 grammes or more in 210 litres of breath or 100 millilitres of blood.
It is not a defence to a prosecution for an offence under section 9 (3) if the defendant proves that, at the time he or she did the act referred to in section 9 (3) (a), (b) or (c), there was present in the defendant’s breath or blood a concentration of alcohol of 0.15 grammes or more in 210 litres of breath or 100 millilitres of blood.
It is a defence to a prosecution for an offence under section 9 (1A) if the defendant proves that, at the time the defendant did the act referred to in section 9 (1A) (a) or (b), the presence in the defendant’s breath or blood of the novice range prescribed concentration of alcohol was not caused (in whole or in part) by any of the following:
(a) the consumption of an alcoholic beverage (otherwise than for the purposes of religious observance),
(b) the consumption or use of any other substance (for example, food or medicine) for the purpose of consuming alcohol.
A person must not, while there is present in his or her oral fluid, blood or urine any prescribed illicit drug:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle.
Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).
If a person is charged with an offence under subsection (1):
(a) the court attendance notice may allege that more than one prescribed illicit drug was present in the oral fluid, blood or urine of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the court attendance notice, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the oral fluid, blood or urine of the defendant:
(i) a drug described in the court attendance notice, or
(ii) a combination of drugs any one or more of which was or were described in the court attendance notice.
A person must not, while there is present in his or her blood or urine any morphine or cocaine:
(a) drive a motor vehicle, or
(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or
(c) if the person is the holder of a driver licence (other than a provisional licence or a learner licence)—occupy the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle.
Maximum penalty: 10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence).
If a person is charged with an offence under subsection (3):
(a) the court attendance notice may allege that both morphine and cocaine were present in the blood or urine of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the court attendance notice, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the blood or urine of the defendant:
(i) a drug described in the court attendance notice, or
(ii) a combination of drugs any one or more of which was or were described in the court attendance notice.
It is a defence to a prosecution for an offence under subsection (3) if the defendant proves that, at the time the defendant did the act referred to in subsection (3) (a), (b) or (c), the presence in the defendant’s blood or urine of morphine was caused by the consumption of a substance for medicinal purposes.
In this section, a substance is consumed for medicinal purposes only if it is:
(a) a drug prescribed by a medical practitioner taken in accordance with a medical practitioner’s prescription, or
(b) a codeine-based medicinal drug purchased from a pharmacy that has been taken in accordance with the manufacturer’s instructions.
Division 1 of Part 5.4 of the Road Transport (General) Act 2005 provides for the disqualification of persons from holding driver licences for certain offences (including offences under this section).
The offences of driving with a prescribed concentration of alcohol in the blood, and of driving under the influence of alcohol or any other drug, are dealt with in sections 9 and 12, respectively.
A person must not, while under the influence of alcohol or any other drug:
(a) drive a vehicle, or
(b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or
(c) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.
Maximum penalty:
(a) in the case of a first offence to which paragraph (a) or (b) relates—20 penalty units or imprisonment for 9 months, or both, or
(b) in the case of a second or subsequent offence to which paragraph (a) or (b) relates—30 penalty units or imprisonment for 12 months, or both, or
(c) in the case of an offence to which paragraph (c) relates—20 penalty units.
If a person is charged with an offence under subsection (1):
(a) the information may allege the person was under the influence of more than one drug and is not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the information, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was under the influence of:
(i) a drug described in the information, or
(ii) a combination of drugs any one or more of which was or were described in the information.
Division 3 of Part 3 of the Road Transport (General) Act 1999 provides for the disqualification of persons from holding driver licences for certain offences (including offences under this section).
A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:
(a) is or was driving a motor vehicle on a road or road related area, or
(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
(c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.
A person must not, when required by a police officer to undergo a breath test under subsection (1), refuse or fail to undergo the breath test in accordance with the directions of the officer.
Maximum penalty: 10 penalty units.
It is a defence to a prosecution for an offence under subsection (2) if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to undergo a breath test.
Before requiring a person to undergo a breath test under subsection (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person’s breath by requiring the person to talk into a device that indicates the presence of alcohol.
Without limiting any other power or authority, a police officer may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.
A person must comply with any request or signal made or given to the person by a police officer under subsection (4).
Maximum penalty: 10 penalty units.
A police officer may exercise the powers referred to in subsection (2) in respect of a person if:
(a1) it appears to the officer from a breath test carried out under section 13 (1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person’s breath or blood a concentration of alcohol of more than zero grammes in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a novice driver in respect of the motor vehicle concerned, or
(a) it appears to the officer from a breath test carried out under section 13 (1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person’s breath or blood a concentration of alcohol of not less than 0.02 grammes in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a special category driver in respect of the motor vehicle concerned, or
(b) it appears to the officer from a breath test carried out under section 13 (1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person’s breath or blood a concentration of alcohol of not less than 0.05 grammes in 210 litres of breath or 100 millilitres of blood, or
(c) the person refused to undergo a breath test required by a police officer under section 13 (1) or fails to undergo that test in accordance with the directions of the officer.
A police officer may:
(a) arrest a person referred to in subsection (1) without warrant, and
(b) take the person, or cause the person to be taken, with such force as may be necessary, to a police station or some other place as the officer considers desirable, and
(c) detain the person, or cause the person to be detained, at that police station or other place for the purposes of this Division.
A police officer may require a person who has been arrested under section 14 to submit to a breath analysis in accordance with the directions of the officer.
A breath analysis must be carried out by a police officer authorised to do so by the Commissioner of Police at or near a police station or such other place as that officer considers desirable.
As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying the following:
(a) the concentration of alcohol determined by the analysis to be present in that person’s breath or blood and expressed in grammes of alcohol in 210 litres of breath or 100 millilitres of blood,
(b) the day on and time of the day at which the breath analysis was completed.
A person who is required by a police officer under subsection (1) to submit to a breath analysis must not refuse or fail to submit to that analysis in accordance with the directions of the officer.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to a breath analysis.
A person must not wilfully do anything to alter the concentration of alcohol in the person’s breath or blood:
(a) between the time of the event referred to in section 13 (1) (a), (b) or (c) in respect of which the person has been required by a police officer to undergo a breath test and the time when the person undergoes that test, or
(b) if the person is required by a police officer to submit to a breath analysis—between the time of the event referred to in section 13 (1) (a), (b) or (c) in respect of which the person has been required by a police officer to undergo a breath test and the time when the person submits to the breath analysis.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
A police officer cannot require a person to undergo a breath test or to submit to a breath analysis:
(a) if that person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of his or her treatment has been notified of the intention to make the requisition and the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person, or
(b) if it appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to that person’s medical condition to undergo a breath test or submit to a breath analysis, or
(c) at any time after the expiration of 2 hours from the occurrence of the event by reason of which the officer was entitled under section 13 (1) to require that person to undergo a breath test, or
(d) at that person’s home.
A person who is required under section 15 (1) to submit to a breath analysis may request the police officer making the requisition to arrange for a medical practitioner to take, in the presence of a police officer, a sample of that person’s blood, for analysis in accordance with this section at that person’s own expense.
A request by a person under subsection (1), or the taking of a sample of that person’s blood, does not absolve that person from the obligation imposed on the person to submit to a breath analysis in accordance with section 15 (1).
A medical practitioner by whom a sample of a person’s blood is taken under an arrangement referred to in subsection (1) must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.
(e) (Repealed)
The medical practitioner must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.
The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
A police officer may make the arrangements referred to in subsection (4). The making of such arrangements under this subsection operates to discharge the duty provided for in subsection (4) to make those arrangements.
An analyst at the laboratory to which a sample of blood is submitted for analysis under this section may carry out an analysis of the sample, or of a portion of the sample, to determine the concentration of alcohol (and, where required, of other drugs) in the blood.
An analysis referred to in subsection (6) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of blood to be analysed and the breaking of any seal securing the sample) may be done, by a person acting under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.
In this Division:
(a) meets the standards prescribed by the regulations for such instruments, and
(b) is approved by the Governor by order published in the Gazette.
(a) meets the standards prescribed by the regulations for such devices, and
(b) is approved by the Governor by order published in the Gazette.
A police officer may require a person to undergo one or more oral fluid tests for prescribed illicit drugs in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:
(a) is or was driving a motor vehicle on a road or road related area, or
(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
(c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.
A person must not, when required by a police officer to undergo an oral fluid test under subsection (1), refuse or fail to undergo the oral fluid test in accordance with the directions of the officer.
Maximum penalty: 10 penalty units.
It is a defence to a prosecution for an offence under subsection (2) if the defendant satisfies the court that the defendant was unable, on medical grounds, to undergo an oral fluid test at the time the defendant was required to do so.
Without limiting any other power or authority, a police officer may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.
A person must comply with any request or signal made or given to the person by a police officer under subsection (4).
Maximum penalty: 10 penalty units.
A police officer may exercise the powers referred to in subsection (2) in respect of a person if:
(a) it appears to the officer from one or more oral fluid tests carried out under section 18B (1) by the officer that the device by means of which the test was carried out indicates that there may be one or more prescribed illicit drugs present in the person’s oral fluid, or
(b) the person refused to undergo an oral fluid test required by an officer under section 18B (1) or fails to undergo that test in accordance with the directions of the officer.
A police officer may:
(a) arrest a person referred to in subsection (1) without warrant, and
(b) take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the person (or cause the person to be detained) for the purpose of the person providing oral fluid samples in accordance with this Division, and
(c) if section 18E permits the taking of a blood sample from the person—take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a place prescribed by the regulations and there detain the person (or cause the person to be detained) for the purpose of the person providing such a blood sample in accordance with that section.
A police officer may require a person who has been arrested under section 18C to provide an oral fluid sample in accordance with the directions of the officer.
A person who is required by a police officer under subsection (1) to provide an oral fluid sample must not refuse or fail to provide that sample in accordance with the directions of the officer.
Maximum penalty: 30 penalty units (in the case of a first offence) or 50 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence).
It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant was unable, on medical grounds, to provide an oral fluid sample at the time the defendant was required to do so.
A police officer who is provided with an oral fluid sample under subsection (1) must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid, and
(e) as soon as reasonably practicable after the sample is provided, arrange for the sample to be submitted to a laboratory prescribed by the regulations for oral fluid analysis.
A police officer may carry out an oral fluid test on a portion of an oral fluid sample provided under subsection (1) before dealing with the remaining portion of the sample in accordance with subsection (4).
If an oral fluid test is carried out under subsection (4A) on a portion of an oral fluid sample, a reference in this Division and sections 33A and 33B to the sample that is required under subsection (4) to be submitted to a laboratory is taken to be a reference to the remaining portion of the sample.
The person who provided the sample may, within 6 months after the taking of the sample or such longer period as is prescribed by the regulations, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for oral fluid analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
An analyst at the laboratory to which a sample of oral fluid is submitted for oral fluid analysis under this section may carry out an analysis of the sample, or of a portion of the sample, to determine the presence of prescribed illicit drugs in the oral fluid.
An oral fluid analysis referred to in subsection (6) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of oral fluid to be analysed and the breaking of any seal securing the sample) may be done, by a person acting under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.
Except as provided by section 18F, a police officer may require a person who has attempted to provide an oral fluid sample as directed under section 18D (1), but has been unable to comply (for example, because no oral fluid was physically able to be produced), to provide a sample of the person’s blood (whether or not the person consents to the provision of the sample) in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.
The police officer must inform any such medical practitioner, registered nurse or prescribed sample taker that the sample is required to be taken for the purposes of this section.
The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of blood is taken in accordance with this section must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.
The medical practitioner, registered nurse or prescribed sample taker must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the blood contains any prescribed illicit drugs.
The person from whom the sample of blood was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
A police officer may make the arrangements referred to in subsection (4). The making of such arrangements under this subsection operates to discharge the duty provided for in subsection (4) to make those arrangements.
An analyst at a laboratory prescribed by the regulations to whom any blood sample is submitted for analysis under this section may carry out an analysis of the blood to determine whether it contains any prescribed illicit drugs.
Any duty of a medical practitioner, registered nurse or prescribed sample taker under this section and any relevant provisions of the regulations may be performed by a person acting under the supervision of the medical practitioner, registered nurse or prescribed sample taker. A duty performed by any such person is taken to have been performed by the medical practitioner, registered nurse or prescribed sample taker.
An analysis under this section may be carried out, and anything in connection with the analysis (including the receipt of the blood sample to be analysed and the breaking of any seal) may be done, by a person acting under the supervision of an analyst and, in that event, is taken to have been carried out or done by the analyst.
A person must not, on being required under this section by a police officer to provide a sample of blood, refuse or fail to submit to the taking of the sample of blood in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.
Maximum penalty (subsection (9)): 30 penalty units (in the case of a first offence) or 50 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence).
A police officer cannot require a person to undergo an oral fluid test or provide any sample under this Division:
(a) if that person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requisition and the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of the person, or
(b) if it appears to the officer that it would, because of any injuries sustained by the person, be dangerous to that person’s medical condition to undergo an oral fluid test or provide a sample, or
(c) in relation to an oral fluid test or oral fluid sample—at any time after the expiration of 2 hours from the occurrence of the event that entitled the officer under section 18B (1) to require the person to undergo an oral fluid test or provide a sample, or
(d) in relation to a blood sample—at any time after the expiration of 4 hours from the occurrence of the event that entitled the officer under section 18B (1) to require the person to undergo an oral fluid test, or
(e) at the person’s home.
A person must not:
(a) wilfully do anything to introduce, or alter the amount of, any prescribed illicit drug in the person’s oral fluid between the time of the event referred to in section 18B (1) (a), (b) or (c) in respect of which the person has been required by a police officer to undergo an oral fluid test and the time when the person undergoes that test, or
(b) wilfully do anything to introduce, or alter the amount of, any prescribed illicit drug in the person’s oral fluid or blood between the time of the event referred to in section 18B (1) (a), (b) or (c) in respect of which the person has been required by a police officer to undergo an oral fluid test and the time when the person provides a sample of the person’s oral fluid or blood.
Maximum penalty: 30 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence).
It is a defence to a prosecution of a person for an offence under subsection (1) of wilfully doing anything to introduce, or alter the amount of, a prescribed illicit drug in the person’s oral fluid if the person satisfies the court that the thing was done more than 2 hours after the time of the event referred to in section 18B (1) (a), (b) or (c).
It is a defence to a prosecution of a person for an offence under subsection (1) of wilfully doing anything to introduce, or alter the amount of, a prescribed illicit drug in the person’s blood if the person satisfies the court that the thing was done more than 4 hours after the time of the event referred to in section 18B (1) (a), (b) or (c).
If a medical practitioner, registered nurse or prescribed sample taker is informed by a police officer in accordance with this Division that a blood sample is required to be taken for the purposes of this Division, the medical practitioner, registered nurse or prescribed sample taker must not:
(a) fail to take the sample, or
(b) fail to comply with any requirement made by section 18E (3) or (4) in relation to the sample.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence under subsection (4) if the medical practitioner, registered nurse or prescribed sample taker satisfies the court that:
(a) the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the taking of the sample from the person would be prejudicial to the proper care and treatment of the person, or
(b) the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the person was less than 15 years of age, or
(c) the practitioner, nurse or prescribed sample taker was, because of the behaviour of the person, unable to take the sample, or
(d) there was other reasonable cause for the practitioner, nurse or prescribed sample taker not to take the sample.
A person must not hinder or obstruct a police officer in attempting to administer an oral fluid test on, or take a sample of oral fluid from, any other person in accordance with this Division.
Maximum penalty: 20 penalty units.
A person must not hinder or obstruct a medical practitioner, registered nurse or prescribed sample taker in attempting to take a sample of the blood of any other person in accordance with this Division.
Maximum penalty: 20 penalty units.
In this section:
For example, deriving a DNA profile from the sample is a purpose for which analysis is prohibited.
A person must not intentionally or recklessly:
(a) supply a Division 3A sample, or cause or permit a Division 3A sample to be supplied, to a person for prohibited analysis, or
(b) carry out, or cause or permit to be carried out, a prohibited analysis of a Division 3A sample, or
(c) include, or cause the inclusion of, information derived from a prohibited analysis on a DNA database kept under a law of this State or the Commonwealth or of another State or a Territory.
Maximum penalty: 30 penalty units.
In this Division, a reference to a
In this section,
Any medical practitioner by whom an accident patient is attended at a hospital is under a duty to take a sample of the patient’s blood for analysis as soon as practicable.
The medical practitioner is under a duty to take the sample whether or not the accident patient consents to the taking of the sample.
If there is no medical practitioner present to attend the accident patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.
This section does not require the taking of a sample of blood from an accident patient unless, at the time of the accident concerned, the accident patient was:
(a) driving a motor vehicle involved in the accident, or
(b) occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or
(c) a pedestrian involved in the accident, or
(d) driving or riding a vehicle (not being a motor vehicle) involved in the accident, or
(e) driving or riding a horse involved in the accident, or
(f) the holder of a driver licence and occupying the seat in the motor vehicle next to a holder of a learner licence who was driving a motor vehicle involved in the accident.
A medical practitioner or nurse is not required by this section to take a sample of an accident patient’s blood:
(a) if a sample of the accident patient’s blood has already been taken in accordance with this section by another medical practitioner or nurse, or
(b) if the medical practitioner or nurse has been informed by a police officer (or has reasonable grounds to believe) that the sample is required to be taken for the purposes of Division 5.
A medical practitioner or nurse must not fail to take a person’s blood sample as required under this Division.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence under subsection (1) if the medical practitioner or nurse satisfies the court that:
(a) he or she believed on reasonable grounds that the taking of blood from the person from whom he or she was required by section 20 to take a sample of blood would be prejudicial to the proper care and treatment of the person, or
(b) he or she did not believe that the person was at least 15 years of age and it was reasonable for him or her not to have so believed, or
(c) he or she did not believe that the person had attended at or been admitted into the hospital in consequence of an accident on a road or road related area involving a vehicle or horse, or
(d) without limiting paragraph (c)—he or she did not believe that the person was a person from whom he or she was required by section 20 to take a sample of blood and it was reasonable for him or her not to have so believed, or
(e) the requirement that he or she take a sample of blood from the person arose after the expiration of 12 hours after the accident concerned occurred or he or she believed on reasonable grounds that the requirement so arose, or
(f) he or she did not know, and could not with reasonable diligence have ascertained, which of 2 or more persons involved in an accident on a road or road related area involving a vehicle or horse was or were a person or persons from whom he or she was required by section 20 to take a sample or samples of blood, or
(g) he or she was, by reason of the behaviour of the person, unable to take a sample of blood from the person at the time the person attended at or was admitted into the hospital or a reasonable time after so attending or being admitted, or
(h) there was reasonable cause for him or her not to take a sample of blood from the person in accordance with this Division.
A person must not hinder or obstruct a medical practitioner or nurse in attempting to take a sample of the blood of any other person in accordance with this Division.
Maximum penalty: 20 penalty units.
A person (other than a secondary participant) must not:
(a) by reason of the person’s behaviour, prevent a medical practitioner or nurse from taking a sample of the person’s blood in accordance with this Division, or
(b) between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this Division, wilfully do anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of an appropriate health professional).
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
A secondary participant must not:
(a) by reason of the person’s behaviour, prevent a medical practitioner or nurse from taking a sample of the person’s blood in accordance with this Division, or
(b) between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this Division, wilfully do anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of an appropriate health professional).
Maximum penalty: 30 penalty units.
It is a defence to a prosecution of a person for an offence under subsection (2) or (3) of wilfully doing anything to alter the concentration of alcohol in the person’s blood if he or she satisfies the court that he or she did the thing after the expiration of 2 hours after the accident concerned occurred.
In this section:
(a) a pedestrian, or
(b) driving or riding a vehicle (other than a motor vehicle or a horse).
The medical practitioner or nurse by whom a sample of a person’s blood is taken in accordance with this Division must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.
Maximum penalty: 20 penalty units.
The medical practitioner or nurse must, as soon as reasonably practicable after the sample is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.
Maximum penalty: 20 penalty units.
The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
A medical practitioner who, in another State or Territory, takes a sample of blood:
(a) from a person attended by the medical practitioner in consequence of an accident in New South Wales, and
(b) in accordance with provisions of a law of that State or Territory that substantially correspond to the provisions of section 20,
may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of alcohol in the blood.
A police officer may arrange for a sample of a person’s blood taken in accordance with this Division to be submitted to a laboratory prescribed by the regulations for analysis to determine the concentration of alcohol, or of alcohol and other drugs, in the blood.
The making of arrangements under subsection (5) for analysis of a blood sample to determine the concentration of alcohol in the blood operates to discharge the duty referred to in subsection (2) to make those arrangements.
A police officer may not make arrangements under subsection (5) for analysis of a blood sample to determine the concentration in the blood of a drug other than alcohol unless:
(a) the following circumstances apply:
(i) the accident that caused the person to attend at or be admitted to hospital was a fatal accident, and
(ii) the person from whom the sample was taken was a person referred to in section 20 (5) (a), (b) or (f), or
(b) the following circumstances apply:
(i) the police officer has reasonable grounds to believe that, at the time of the accident concerned, the person from whom the sample was taken was under the influence of a drug other than alcohol, and
(ii) no police officer attended the scene of the accident that led to the taking of the sample or, although a police officer or police officers attended the scene of the accident, there was no reasonable opportunity to require the person from whom the sample was taken to submit, in accordance with Division 5, to an assessment of his or her sobriety.
An analyst to whom a sample of blood, or a portion of a sample of blood (under subsection (4)), is submitted for analysis under this section may carry out an analysis of the sample, or of a portion of the sample, to determine the concentration of alcohol (and, where required, of other drugs) in the blood.
An analysis referred to in subsection (7) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of blood, or the portion of the sample of blood, to be analysed and the breaking of any seal securing the sample or portion) may be done, by a person acting under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.
Any duty of a medical practitioner under this Division and any relevant provisions of the regulations may be performed by a person acting under the supervision of the medical practitioner.
A duty performed by any such person is taken to have been performed by the medical practitioner.
This section applies to a person who:
(a) is at least 15 years old, and
(b) at the time of an accident, was:
(i) driving a motor vehicle involved in the accident, or
(ii) occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or
(iii) the holder of a driver licence and occupying the seat in the motor vehicle next to a holder of a learner licence who was driving a motor vehicle involved in the accident, and
(c) is not an accident patient within the meaning of section 20.
A police officer may exercise the powers referred to in subsection (3) in relation to a person to whom this section applies if the police officer believes that:
(a) the accident is a fatal accident, or
(b) it is more likely than not that a person will die within 30 days as a consequence of the accident.
A police officer may:
(a) arrest the person without warrant, and
(b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or other prescribed place, and
(c) detain the person, or cause the person to be detained, at the hospital or other prescribed place to enable the person to provide blood and urine samples in accordance with this Division.
In this Division,
Except as provided by section 24C, a police officer may require a person who has been arrested under section 24A to provide samples of the person’s blood and urine (whether or not the person consents to the samples being taken) in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.
The police officer must inform any such medical practitioner, registered nurse or prescribed sample taker that the samples are required to be taken for the purposes of this Division.
The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of blood is taken in accordance with this Division must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.
The medical practitioner, registered nurse or prescribed sample taker must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the blood contains a drug.
The person from whom the sample of blood was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
A police officer may make the arrangements referred to in subsection (4). The making of such arrangements under this subsection operates to discharge the duty provided for in subsection (4) to make those arrangements.
The medical practitioner, registered nurse or prescribed sample taker under whose directions a sample of urine is provided in accordance with this Division must:
(a) divide the sample into 2 approximately equal portions, and
(b) place each portion into a container, and
(c) fasten and seal each container, and
(d) mark or label each container for future identification.
Of the 2 sealed containers:
(a) one must be handed by the medical practitioner, registered nurse or prescribed sample taker to the person from whom it was taken or to some other person on behalf of that person, and
(b) the other must be handed by the practitioner, nurse or prescribed sample taker to the police officer present when the sample was taken and forwarded to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the urine contains a drug.
An analyst at a laboratory prescribed by the regulations to whom any blood or urine is submitted for analysis under this section may carry out an analysis of the blood or urine to determine whether it contains a drug, but only if a police officer has notified the analyst in writing that a person involved in the accident that led to the sample of blood or urine being submitted for analysis:
(a) has died within 30 days of the accident, or
(b) has died during the period beginning 30 days after the accident and ending 12 months after the accident and a medical practitioner has given advice that the person died as a result of the accident.
Any duty of a medical practitioner, registered nurse or prescribed sample taker under this Division and any relevant provisions of the regulations may be performed by a person acting under the supervision of the practitioner, nurse or prescribed sample taker. A duty performed by any such person is taken to have been performed by the medical practitioner, registered nurse or prescribed sample taker.
An analysis under this section may be carried out, and anything in connection with the analysis (including the receipt of the blood or urine to be analysed and the breaking of any seal) may be done, by a person acting under the supervision of an analyst and, in that event, is taken to have been carried out or done by the analyst.
A blood or urine sample that has been provided under this section must be destroyed by or at the direction of the analyst who has custody of the sample without being analysed if, at the expiry of 13 months after the accident concerned, no police officer has made a notification relating to a death under subsection (8).
A police officer cannot require a person to provide a sample under this Division:
(a) if a medical practitioner, registered nurse or prescribed sample taker has objected on the grounds that compliance would be dangerous to the person’s health, or
(b) if it appears to that officer that it would, because of any injuries to the person, be dangerous to the person’s medical condition to provide the sample, or
(c) at any time after the expiration of 4 hours from the occurrence of the accident concerned.
A person must not:
(a) on being required under this Division by a police officer to provide samples of blood and urine:
(i) refuse or fail to submit to the taking of the sample of blood, or
(ii) refuse or fail to provide the sample of urine,
in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker, or
(b) between the time of the fatal accident concerned and the time when the person provides a sample that the person is required to provide under this Division, wilfully do anything to introduce, or alter the amount of, a drug in the person’s blood or urine (except at the direction or under the supervision of an appropriate health professional).
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
It is a defence to a prosecution for an offence under subsection (1) (a) if the defendant satisfies the court that the defendant was unable, on medical grounds, to provide a sample when the defendant was required to do so.
It is a defence to a prosecution of a person for an offence under subsection (1) (b) of wilfully doing anything to introduce, or alter the amount of, a drug in the person’s blood or urine if the person satisfies the court that the thing was done more than 4 hours after the time of the fatal accident concerned.
If a medical practitioner, registered nurse or prescribed sample taker is informed by a police officer in accordance with this Division that a sample is required to be taken for the purposes of this Division, the medical practitioner, registered nurse or prescribed sample taker must not:
(a) fail to take the sample, or
(b) fail to comply with any requirement made by section 24B (3), (4), (6) or (7) in relation to the sample.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence under subsection (4) if the medical practitioner, registered nurse or prescribed sample taker satisfies the court that:
(a) the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the taking of the sample from the person would be prejudicial to the proper care and treatment of the person, or
(b) the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the person was less than 15 years of age, or
(c) the practitioner, nurse or prescribed sample taker was, because of the behaviour of the person, unable to take the sample, or
(d) there was other reasonable cause for the practitioner, nurse or prescribed sample taker not to take the sample.
A person must not hinder or obstruct a medical practitioner, registered nurse or prescribed sample taker in attempting to take a sample of the blood or urine of any other person in accordance with this Division.
Maximum penalty: 20 penalty units.
A police officer may require a person to submit to an assessment of his or her sobriety in accordance with the directions of the officer if:
(a) the person has undergone a breath test in accordance with Division 3, and
(b) the result of the test does not permit the person to be required to submit to a breath analysis.
A person cannot be required to submit to a sobriety assessment unless:
(a) a police officer has a reasonable belief that, by the way in which the person:
(i) is or was driving a motor vehicle on a road or road related area, or
(ii) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the vehicle in motion,
the person may be under the influence of a drug, and
(b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test.
If the person refuses to submit to a sobriety assessment under this Division or, after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug, the police officer may:
(a) arrest that person without warrant, and
(b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a place prescribed by the regulations and there detain the person (or cause the person to be detained) for the purposes of this Division.
Except as provided by section 28, a police officer may require a person who has been arrested under section 26 to provide samples of the person’s blood and urine (whether or not the person consents to them being taken) in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.
The police officer must inform any such medical practitioner, registered nurse or prescribed sample taker that the samples are required to be taken for the purposes of this Division.
The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of blood is taken in accordance with this Division must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.
Maximum penalty: 20 penalty units.
The medical practitioner, registered nurse or prescribed sample taker must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the blood contains a drug.
Maximum penalty: 20 penalty units.
The person from whom the sample of blood was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.
A police officer may make the arrangements referred to in subsection (2B). The making of such arrangements under this subsection operates to discharge the duty referred to in subsection (2B) to make those arrangements.
The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of urine is taken in accordance with this Division must:
(a) divide the sample into 2 approximately equal portions, and
(b) place each portion into a container, and
(c) fasten and seal each container, and
(d) mark or label each container for future identification.
Of the 2 sealed containers:
(a) one must be handed by the medical practitioner, registered nurse or prescribed sample taker to the person from whom it was taken or to some other person on behalf of that person, and
(b) the other must be handed by the practitioner, nurse or prescribed sample taker to the police officer present when the sample was taken and forwarded to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the urine contains a drug.
An analyst at a laboratory prescribed by the regulations to whom any blood or urine is submitted for analysis under this section may carry out an analysis of the blood or urine to determine whether it contains a drug.
Any duty of a medical practitioner, registered nurse or prescribed sample taker under this Division and any relevant provisions of the regulations may be performed by a person acting under the supervision of the medical practitioner, registered nurse or prescribed sample taker. A duty performed by any such person is taken to have been performed by the medical practitioner, registered nurse or prescribed sample taker.
An analysis under this section may be carried out, and anything in connection with the analysis (including the receipt of the blood or urine to be analysed and the breaking of any seal) may be done, by a person acting under the supervision of an analyst and, in that event, is taken to have been carried out or done by the analyst.
A police officer cannot require a person to submit to a sobriety assessment or to provide a sample under this Division:
(a) if the person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requirement and the medical practitioner does not object on the grounds that compliance would be prejudicial to the proper care and treatment of the person, or
(b) if it appears to that officer that it would, because of the person’s injuries, be dangerous to the person’s medical condition to submit to the assessment or provide the sample, or
(c) at any time after the expiration of 4 hours from the occurrence of the event referred to in section 25 (2) (a) (i) or (ii) because of which the officer was entitled to require the person to submit to the assessment or provide the sample, or
(d) at the person’s home.
A person must not, when required by a police officer to submit to an assessment under section 25, refuse or fail to submit to the assessment in accordance with the directions of the police officer.
Maximum penalty: 10 penalty units.
A person must not:
(a) on being required under this Division by a police officer to provide samples of blood or urine:
(i) refuse or fail to submit to the taking of the sample of blood, or
(ii) refuse or fail to provide the sample of urine,
in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker, or
(b) wilfully do anything to introduce, or alter the amount of, a drug in the person’s blood or urine between the time of the event referred to in section 25 (2) (a) (i) or (ii) in respect of which the person has been required by a police officer to submit to an assessment and the time when the person undergoes that assessment, or
(c) wilfully do anything to introduce, or alter the amount of, a drug in the person’s blood or urine between the time of the event referred to in section 25 (2) (a) (i) or (ii) in respect of which the person has been required by a police officer to submit to an assessment and the time when the person provides a sample that the person is required to provide under this Division.
Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
It is a defence to a prosecution for an offence under subsection (1) or (2) (a) if the defendant satisfies the court that the defendant was unable on medical grounds, when the defendant was required to do so, to submit to an assessment or to provide a sample.
The recovery of any such fee by the Authority or any other person as a debt due to the Crown in any court of competent jurisdiction.
The issue of certificates as to the fact and cost of towing and their use as evidence of those matters in proceedings before a court.
The duties of parents and other persons responsible for children (not being older than 16 years and 9 months of age) in respect of the use of roads or road related areas (or vehicles on roads or road related areas).
The establishment and conduct of schemes to assist children to cross roads and road related areas safely, including the following:
(a) enabling the Authority to conduct, or authorise other persons to conduct, such schemes,
(b) enabling the Authority:
(i) to amend or replace such schemes, and
(ii) impose conditions on the authority to conduct schemes, and
(iii) revoke an authority to conduct schemes,
(c) signs to be displayed at crossings and the exhibition of such signs,
(d) the placement of barriers across or partly across a road or road related area near a crossing,
(e) conditions relating to the wearing or display of insignias, badges, belts or other articles of uniform by any persons taking part in crossing schemes,
(f) providing that evidence that a sign was exhibited, as prescribed, by a person at or near a crossing, is admissible and is prima facie evidence in proceedings in any court that the exhibition of the sign by such person was authorised,
(g) the prescription of any other matters necessary or convenient to be prescribed for the purpose of carrying out any such scheme.
The duties of any driver of a vehicle or other person involved in or affected by an accident on a road or road related area, including in relation to the following matters:
(a) the production of driver licences or other identification to any person by a participant in the accident,
(b) the giving of particulars concerning:
(i) the vehicle, persons and property involved in or affected by the accident, or
(ii) any damage or injury caused by the accident, or
(iii) the identity and addresses of any witnesses to the accident.
The records to be kept by the owner of a vehicle rented to be driven by the hirer or his or her employee or agent and for the inspection of such records by any police officer.
The marking of tyres of vehicles by means of crayon, chalk or any similar substance by police officers and special constables in the employ of the Commissioner of Police for any purpose connected with the enforcement of any of the provisions of any Act or statutory rule.
Provisions for:
(a) the seizure and for the taking charge of, removal or towing away of any vehicle that is a danger or unreasonable obstruction to traffic or has been abandoned on a road or road related area, or has been caused or permitted to stand, wait, stop or to be parked contrary to law on any part of a road or road related area in which is conspicuously displayed a sign exhibiting or including the words “tow away area” or “vehicles impounded” or other words indicating that such a vehicle is subject to seizure, and
(b) the keeping or impounding, at a place appointed or set apart by the Commissioner of Police for the purpose, of any vehicle so removed or towed away, and
(c) the conditions to be observed before the release of any such vehicle, including a condition for payment of such amount as may, from time to time, be fixed by the Commissioner of Police in respect of the seizure, taking charge of, removal, towing away, keeping, impounding or releasing of any such vehicle, and for the disposal or destruction of any such vehicle if the owner fails within the time prescribed to claim the vehicle and to pay that amount, and
(d) the fixing of different amounts by the Commissioner of Police as referred to in paragraph (c) in respect of different classes of vehicles or according to different circumstances, and
(e) the conditions to be observed before a vehicle can be seized.
Fees, including the following:
(a) the fixing of fees for services provided by the Authority under this Act or the regulations,
(b) the collection and recovery of fees fixed under this Act or the regulations,
(c) the refund, or partial refund, of fees fixed under this Act or the regulations,
(d) the waiver or postponement of fees fixed under this Act or the regulations.
The repeal or amendment of any reference to the Australian Road Rules or the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (or a provision of those Rules or the Regulation) in any Act or statutory rule that is a reference that is (or will become) out of date or otherwise incorrect by reason of the repeal, amendment, renumbering, renaming or remaking of those Rules or the Regulation (or a provision of those Rules or the Regulation).
This clause expires on 1 September 2008.
The Australian Road Rules were incorporated into the law of New South Wales by clause 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 on and from 1 December 1999. Clause 6 provided that, subject to that Regulation, the Australian Road Rules were to be read with, and as if they formed part of, that Regulation.
(Section 78)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• Road Transport Legislation Amendment Act 1999
• Tow Truck Industry Amendment Act 1999
• Road Transport (Safety and Traffic Management) Amendment (Camera Devices) Act 1999
• Road Transport (Safety and Traffic Management) Amendment (Blood Sampling) Act 2000
• Road Transport (Safety and Traffic Management) Amendment (Alcohol) Act 2004, but only to the extent that it amends this Act
• Road Transport Legislation Amendment (Public Transport Lanes) Act 2004, but only in relation to the amendments made to this Act
• Road Transport Legislation Amendment (Drug Testing) Act 2006
• Road Transport Legislation Amendment (Evidence) Act 2006
• Road Transport (Safety and Traffic Management) Amendment (Novice Drivers) Act 2007
• Road Transport Legislation (Breath Testing and Analysis) Act 2007
• Road Transport Legislation Amendment (Traffic Offence Detection) Act 2009
• Road Transport Legislation Amendment (Miscellaneous Provisions) Act 2009, but only to the extent that it amends this Act
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The provisions of this Act are subject to the provisions of Part 2 of Schedule 2 to the Road Transport (General) Act 1999.
Part 2 of Schedule 2 to the Road Transport (General) Act 1999 contains savings and transitional provisions consequent on the repeal of the Traffic Act 1909 by the Road Transport Legislation Amendment Act 1999 and the enactment of this Act and the Road Transport (General) Act 1999.
In this Part:
Proceedings for offences committed, or alleged to have been committed, before the commencement of Schedule 1 to the amending Act are to be determined as if the amending Act had not been enacted.
Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had the amending Act not been enacted continues to apply to the proceedings as if the amending Act had not been enacted.
In this Part:
Proceedings for offences committed, or alleged to have been committed, before the commencement of Schedule 1 to the amending Act are to be determined as if the amending Act had not been enacted.
Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had the amending Act not been enacted continues to apply to the proceedings as if the amending Act had not been enacted.
The Minister is to review the amending Act to determine whether the policy objectives of the amending Act remain valid and whether the terms of the amending Act remain appropriate for securing those objectives.
The review is to be undertaken as soon as possible after the period of 4 years from the date of assent to the amending Act.
A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 4 years.
The Minister is to review the Road Transport Legislation Amendment (Drug Testing) Act 2006 (the
The review is to be undertaken as soon as possible after the period of 12 months from the date of commencement of Division 3A or 4A of Part 2 of this Act (whichever is the earlier).
A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 12 months referred to in subclause (2).
In this Part,
An amendment made to this Act by the amending Act does not apply to proceedings for an offence that were instituted before the commencement of the amendment.
An amendment made to this Act by the amending Act applies to proceedings for an offence that are instituted on or after the commencement of the amendment even if the proceedings involve an offence that was committed before that commencement.
In this Part:
Proceedings for offences committed, or alleged to have been committed, before the commencement of Schedule 1 to the amending Act are to be determined as if the amending Act had not been enacted.
Accordingly, the law (including any relevant provision of this Act) that would have been applicable to the proceedings had the amending Act not been enacted continues to apply to the proceedings as if the amending Act had not been enacted.
In this Part:
Any certificate issued under any amended legislation before that legislation was amended by the amending Act that states the concentration of alcohol in a person’s blood continues to be as effectual as it was before the legislation’s amendment (including for the purposes of evidence in any proceedings).
Any instrument or other device that was a duly approved breath analysing instrument or breath testing device for the purposes of any amended legislation immediately before the legislation was amended by the amending Act continues to be a duly approved instrument or device for the purposes of the legislation as amended.
An instrument that measures the concentration of alcohol present in a person’s breath by reference to grammes of alcohol in a volume of breath (instead of grammes of alcohol in a volume of blood) may be approved for the purposes of the definition of
A device that measures the concentration of alcohol present in a person’s breath by reference to grammes of alcohol in a volume of breath (instead of grammes of alcohol in a volume of blood) may be approved for the purposes of the definition of
Any approval given as provided by subclause (2) or (3) during the pre-commencement period is taken to have effect for the purposes of this Act on and from the commencement of Schedule 1 [16] to the amending Act as if it had been approved on that commencement.
In this clause:
In this Part,
A camera detection device that was a duly approved camera detection device immediately before the commencement of the amendments to this Act made by the amending Act continues to be a duly approved camera detection device for the purposes of this Act as amended.
Any certificate issued under section 57 before the commencement of the amendments to this Act made by the amending Act continues to be as effectual as it was before that commencement (including for the purposes of evidence in any proceedings).
In this Part:
Any certificate issued under section 57 before the amendment of that section by the amending Act continues to be as effectual as it was before the commencement of that amendment (including for the purposes of any evidence in any proceedings).
Section 57C (as inserted by the amending Act) extends to a device that was an approved device for the purposes of a device approval provision (within the meaning of that section) immediately before the commencement of that section.
(Section 4)
In this Act:
(a) any person employed by the Government as an analyst, or
(b) any person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966, or
(c) a person (or a person of a class or description) prescribed by the regulations.
(a) constructed principally to carry persons, and
(b) equipped to seat more than 8 adult persons, and
(c) used to convey passengers for hire or reward or in the course of trade or business.
(a) be in control of the steering, movement or propulsion of a vehicle, and
(b) in relation to a trailer, draw or tow the trailer, and
(c) ride a vehicle.
(a) following an application for a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, and
(b) after payment of any applicable fee.
(a) alcohol, and
(b) a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, not being a substance specified in the regulations as being excepted from this definition, and
(c) any other substance prescribed as a drug for the purposes of this definition.
(a) as specified by the motor vehicle’s manufacturer, or
(b) as specified by the Authority if:
(i) the manufacturer has not specified the sum of the maximum loaded mass, or
(ii) the manufacturer cannot be identified, or
(iii) the vehicle has been modified to the extent that the manufacturer’s specification is no longer appropriate.
(a) as specified by the vehicle’s manufacturer, or
(b) as specified by the Authority if:
(i) the manufacturer has not specified a maximum loaded mass, or
(ii) the manufacturer cannot be identified, or
(iii) the vehicle has been modified to the extent that the manufacturer’s specification is no longer appropriate.
(a) a motor vehicle that has a GVM exceeding 13.9 tonnes, or
(b) a motor vehicle and trailer combination that has a GCM exceeding 13.9 tonnes.
(a) any public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown, and
(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997, and
(c) any private health facility within the meaning of the Private Health Facilities Act 2007.
(a) a vehicle used on a light rail system within the meaning of the Transport Administration Act 1988, or
(b) any other light rail system prescribed by the regulations.
(a) delta-9-tetrahydrocannabinol (also known as THC),
(b) methylamphetamine (also known as speed),
(c) 3,4-methylenedioxymethylamphetamine (also known as ecstasy).
(a) samples of blood for the purposes of Division 3A of Part 2,
(b) samples of blood or urine, or both, for the purposes of Divisions 4A and 5 of Part 2.
(a) a provisional licence issued in accordance with clause 20 (1) of the Road Transport (Driver Licensing) Regulation 2008, or
(b) any class of licence prescribed by the regulations under this Act that replaces any such licence.
(a) a provisional licence issued in accordance with clause 27 (1) of the Road Transport (Driver Licensing) Regulation 2008, or
(b) any class of licence prescribed by the regulations under this Act that replaces any such licence.
(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply.
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any other vehicle prescribed by the regulations.
An offence against a provision of this Act is a
An offence against a provision of this Act is a
In this Act, a reference to a licence in respect of a motor vehicle, being a licence of any class, is a reference to a licence which authorises the holder to drive motor vehicles of a class that includes the motor vehicle (whether or not in combination with a trailer).
(Repealed)
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