New South Wales Consolidated Acts

ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999 - SECT 38

38 Double jeopardy in relation to alcohol and other drug offences

(cf Traffic Act, ss 4E (14) and (15), 4F (9) and (10) and 5AC (5))

(1) If a person has been convicted of an offence under section 15 (4), 16, 18D (2), 18E (9), 18G (1), 22 (2), 24D (1) and (6) or 29 (2), the person is not liable to be convicted of an offence under section 12 (1) if the offence for which the person has been convicted and the other offence arose directly or indirectly out of the same circumstances.

(2) If a person has been convicted of an offence under section 12 (1), the person is not liable to be convicted of an offence under section 15 (4), 16, 18D (2), 18E (9), 18G (1), 22 (2), 24D (1) and (6) or 29 (2) if the offence for which the person has been convicted and the other offence arose directly or indirectly out of the same circumstances.

(3) If, by reason of the occurrence of an event referred to in section 13 (1) (a), (b) or (c), a person is required by a police officer to undergo a breath test and as a consequence of that test to submit to a breath analysis and the person submits to the breath analysis in accordance with the directions of a police officer, the person cannot be charged with an offence under section 12 (1) of:

(a) driving a motor vehicle, at the time of that event, while the person was under the influence of intoxicating liquor, or

(b) occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of intoxicating liquor.

(3A) If a person has been convicted of an offence under section 11B, the person is not liable to be convicted of an offence under section 12 (1) if the offence for which the person has been convicted and the other offence arose directly or indirectly out of the same circumstances.

(3B) If a person has been convicted of an offence under section 12 (1), the person is not liable to be convicted of an offence under section 11B if the offence for which the person has been convicted and the other offence arose directly or indirectly out of the same circumstances.

(4) A person who has had a sample of blood taken in accordance with Division 4 because of an accident is not to be charged with an offence under section 12 (1) if it is alleged as a component of the offence that the person was under the influence of alcohol and the offence relates to the same accident.