New South Wales Consolidated Acts

POLICE ACT 1990 - SECT 211A

211A Testing of police officers for alcohol and prohibited drugs

(1) An authorised person may require any police officer who is on duty in accordance with a roster:

(a) to undergo a breath test, or submit to a breath analysis, for the purpose of testing for the presence of alcohol, or

(b) to provide a sample of the police officer’s urine or hair (or both) for the purpose of testing for the presence of prohibited drugs,

in accordance with the directions of the authorised person and the regulations.

(2) The selection of a police officer for testing pursuant to subsection (1) may be conducted on a random or targeted basis.

(2A) An authorised person must require any police officer directly involved in a mandatory testing incident to:

(a) undergo a breath test, or submit to a breath analysis, for the purpose of testing for the presence of alcohol, and

(b) provide a sample of their urine or hair (or both) for the purpose of testing for the presence of prohibited drugs,

in accordance with the directions of the authorised person and the regulations.

(3) A police officer may be breath tested or required to undergo breath analysis whether or not there is any suspicion that the officer has recently consumed alcohol.

(4) If a police officer is selected for testing because there is a suspicion that the officer has recently consumed alcohol, any authorised person may administer the breath test or breath analysis. However, if the police officer is selected on a random basis, the authorised person who administers the breath test or breath analysis must not be a police officer. This subsection applies only to testing pursuant to subsection (1).

(4A) A requirement pursuant to subsection (2A) to undergo a test or to provide a sample is to be made by an authorised person as soon as practicable after the mandatory testing incident concerned. Any authorised person may administer the breath test or breath analysis in such a case.

(4B) If a police officer involved attends or is admitted to a hospital for examination or treatment because of the mandatory testing incident, an authorised person may require the officer to provide a sample of the officer’s blood, urine or hair in accordance with the directions of a medical practitioner who attends the officer at the hospital.

(4C) Any such medical practitioner must take the sample if informed by the authorised person that the sample is required to be taken by the practitioner, but not a sample of blood if such a sample is taken under Division 4 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999 instead. That Division applies to any taking of a sample pursuant to this subsection as if the sample were a sample of blood taken under that Division.

(4D) Any sample taken under subsection (4C) is to be dealt with, and a report on the analysis of the sample is to be provided, in accordance with the regulations. However, nothing in this section or the regulations derogates from the operation of Division 4 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999 .

(4E) A police officer of or above the rank of superintendent may direct any off duty police officer to accompany another police officer to any police premises to report for duty to provide a sample of the off duty police officer’s urine or hair (or both) for the purpose of testing for the presence of prohibited drugs. The selection of police officers for testing pursuant to this subsection is to be conducted on a targeted basis, as determined by the Commissioner.

(4F) A police officer directed to accompany another police officer pursuant to subsection (4E) must not refuse to do so without reasonable excuse.

(4G) For the purposes of subsection (4E), a police officer is taken to be "off duty" other than when a police officer is required to report for duty in accordance with a roster.

(5) The regulations may make provision for or with respect to the following:

(a) the authorisation of persons:

(i) to administer breath tests, breath analyses or other tests for the purpose of detecting the presence of alcohol or prohibited drugs, and

(ii) to operate equipment for that purpose,

(b) the conduct of testing, which may include the taking of blood (but only with the consent of the person being tested) if a breath test or breath analysis indicates the presence of alcohol,

(c) the taking of samples of urine, hair or blood,

(d) the devices used in carrying out the breath tests, breath analyses and other tests, including the calibration, inspection and testing of those devices,

(e) the accreditation of persons conducting analyses for the presence of prohibited drugs,

(f) the procedure for the handling and analysis of samples of urine, hair or blood,

(g) offences relating to interference with test results or the testing procedure,

(h) the confidentiality of test results,

(i) the circumstances amounting to reasonable excuse for failing to accompany a police officer pursuant to subsection (4E).

(5A) Subject to the regulations, section 8B (Measurement of alcohol concentrations) of the Road Transport (Safety and Traffic Management) Act 1999 applies in relation to the measurement of the concentration of alcohol in a person’s breath or blood for the purposes of this section and the regulations in the same way as it applies for the purposes of Part 2 of that Act.

(6) The annual report of the NSW Police Force prepared under the Annual Reports (Departments) Act 1985 must include details of:

(a) the number of breath tests, or drug tests involving the collection of samples, conducted during the relevant year, and

(b) the number of those tests in which a police officer tested positive for alcohol in the officer’s breath or blood, and

(c) the number of those tests that indicated that a police officer had a prohibited drug in the officer’s body.

(7) In this section:
"authorised person" means a person authorised in accordance with the regulations to conduct breath tests, breath analyses or other tests for the purposes of this section and the regulations.
"breath test" means a test:

(a) that is designed to indicate the concentration of alcohol present in a person’s breath or blood, and

(b) that is carried out on the person’s breath by means of a device (not being a breath analysing instrument) of a type approved by the Governor for the conduct of breath tests under the Road Transport (Safety and Traffic Management) Act 1999 .

"mandatory testing incident" means an incident where a person is killed or seriously injured:

(a) as a result of the discharge of a firearm by a police officer, or

(b) as a result of the application of physical force by a police officer, or

(c) while detained by a police officer, or while in police custody, or

(d) in circumstances involving a police aircraft, motor vehicle or vessel.

"police premises" means any police station, command, building, structure or any other area occupied from time to time by the NSW Police Force.
"prohibited drug" has the same meaning as in the Drug Misuse and Trafficking Act 1985 .