"nurse" means a person registered under the Health Practitioner Regulation
National Law—
(a)
(b) in the registered nurses division of that profession.
"qualified assistant" means a person whose duties include the taking of blood.
"saliva analysing instrument" means an instrument, that is approved under a
regulation, for finding out whether a relevant drug is present in a person’s
saliva by analysing a specimen of the person’s saliva.
"saliva test" means a test to obtain an indication of the presence of a
relevant drug in a person’s saliva by using a device approved under a
regulation.
"specimen" , in relation to saliva, includes parts of the saliva specimen.
"suspend" , in relation to a driver licence issued outside Queensland,
includes suspend the authority to drive on a Queensland road under the
licence.
(1A) When person taken not to have provided specimen If a person is
required under this section to provide a specimen of breath for a breath test
or analysis, a specimen of saliva for a saliva test or for saliva analysis or
a specimen of blood for a laboratory test, the person is taken not to have
provided the specimen unless it—
(a) is sufficient to enable the test or the
analysis to be carried out; and
(b) is provided in a way that enables the
objective of the test or analysis to be satisfactorily achieved.
(2) Request
for specimen of breath or saliva A police officer may require any person found
by the officer or who the officer reasonably suspects was during the last
preceding 3 hours—
(a) driving a motor vehicle, tram or train on a road or
elsewhere; or
(b) attempting to put in motion a motor vehicle, tram or train
on a road or elsewhere; or
(c) in charge of a motor vehicle, tram or train on
a road or elsewhere; or
(ca) otherwise operating, or interfering with the
operation of, a motor vehicle dangerously on a road or elsewhere; or
(d)
driving or in charge of or attempting to put in motion a vessel being used or
apparently about to be used in navigation;
(2A) Request for specimen of breath or saliva after incident
If a motor vehicle, tram, train or vessel is involved in an incident resulting
in injury to or death of any person or damage to property a police officer may
require any person who the officer reasonably suspects—
(a) was driving or
attempting to drive the motor vehicle, tram or train on a road or elsewhere;
or
(b) was in charge of the motor vehicle, tram or train on a road or
elsewhere; or
(ba) for an incident involving a motor vehicle—was otherwise
operating, or interfering with the operation of, the motor vehicle
dangerously; or
(c) was driving or in charge of or attempting to drive the
vessel;
at the time of the incident to provide a specimen of breath for a
breath test by the person, a specimen of saliva for a saliva test by the
person or both.
(2B) Application of subsection (2C) Subsection (2C) applies
if—
(a) a police officer requires a person to provide a specimen of breath
for a breath test by the person, a specimen of saliva for a saliva test by the
person, or both, under subsection (2) or (2A) ; and
(b) the person—
(i) is
taken not to have provided the specimen of breath or saliva under subsection
(1A) ; or
(ii) provides the specimen of breath or saliva; but—
(A) the
device used for the test is or becomes defective precluding its satisfactory
operation; or
(B) for any reason it is not possible to use or continue using
the device to conduct the breath test or saliva test; or
(2C)
More than 1 specimen may be required Under subsection (2) or (2A) , the police
officer may require the person to provide as many specimens of breath or
saliva, or both, as the police officer considers reasonably necessary to carry
out the breath test, the saliva test or both.
(3) Time and place for
provision of specimen A police officer who is exercising a power conferred on
the officer by subsection (2) or (2A) may require the person in question to
provide the specimen of breath or saliva—
(a) at the time when and the place
where the police officer makes the requirement including at any police station
where the person may then be; or
(b) at the police station nearest to that
place or at some other police station conveniently located as soon as
practicable after the police officer makes the requirement if the police
officer believes on reasonable grounds that it is reasonable for such person
to be taken to a police station for the purpose, having regard to the
circumstances of the case; or
(c) without limiting paragraph (b) , as soon as
practicable after the police officer makes the requirement, at a place at
which the police officer believes on reasonable grounds there is located a
device that the police officer may use for carrying out a breath test or
saliva test if the police officer does not have a device for the relevant test
with him or her.
(4) Time limits for requirement for specimen A requirement
must not be made under subsection (2) or (2A) unless it is made as soon as
practicable and within 3 hours after the event happens that authorises the
police officer to make the requirement under the subsection.
(5) Forcible
taking of person to police station or other place If a person required by a
police officer under subsection (2) or (2A) to provide at a police station or
other place a specimen of breath for a breath test, or of saliva for a
saliva test, by the person fails to go voluntarily to the police station or
other place for that purpose, any police officer, using such force as is
necessary, may take the person to the police station or, as the case may be,
other place for that purpose.
(5A) Offence of failing to provide specimen as
required Subject to subsection (5B) , if a person required by a police officer
under subsection (2) or (2A) to provide a specimen of breath for a
breath test, or a specimen of saliva for a saliva test, by the person
either—
(b) fails to provide the
specimen in the manner directed by the police officer who makes the
requirement;
the person commits an offence against this Act.
Penalty—
Maximum penalty—40 penalty units or 6 months imprisonment.
(5B) When
person is not guilty under subsection (5A) A person referred to in subsection
(5A) is not guilty of an offence under that subsection if—
(a) immediately
after the requirement is made, the person produces to the police officer a
certificate in the approved form from a doctor stating that—
(i) because of
a stated illness or disability, the person is incapable of providing a
specimen of breath, a specimen of saliva or both a specimen of breath and of
saliva; or
(ii) the provision of a specimen of breath, a specimen of saliva
or both a specimen of breath and of saliva could adversely affect the
person’s health; or
(b) the person satisfies the justices that the
requisition to provide a specimen of breath, a specimen of saliva or both a
specimen of breath and of saliva was not lawfully made or that the person was,
by reason of the events that occurred, incapable of providing the specimen as
required or that there was some other reason of a substantial character for
the person’s failure to provide the specimen as required other than a desire
to avoid providing information that might be used in evidence.
(6) Powers of
police for subsections (8)–(8L) If—
(a) it appears to a police officer in
consequence of a breath test carried out by the officer on a specimen of
breath of any person that the person is over the general alcohol limit; or
(aa) it appears to a police officer in consequence of a breath test carried
out by the officer on a specimen of breath of any person that the person is
over the no alcohol limit and the police officer reasonably suspects that the
person is a person to whom section 79(2A) , (2B) , (2D) , (2J) , (2K) or (2L)
refers; or
(ab) it appears to a police officer in consequence of a
saliva test carried out by the officer on a specimen of saliva of any person
that a relevant drug is present in the person’s saliva; or
(b) a person
required by a police officer under subsection (2) or (2A) to provide a
specimen of breath for a breath test, or a specimen of saliva for a
saliva test, by the person—
(ii)
fails to provide the specimen in the manner directed by the police officer who
makes the requirement; or
(iii) declines to wait for such time as is
reasonable in the circumstances to enable the test to be carried out
satisfactorily; or
(ba) a police officer reasonably suspects that a person
who produces a certificate under subsection (5B) (a) is, because of the
external signs exhibited by the person, affected by liquor or a drug;
any
police officer, using such force as is necessary, may—
(c) take the person
to a police station, hospital or other place authorised under this section; or
(i) to another such vehicle or vessel as is convenient
and reasonable in the circumstances; or
(ii) to a police station such as is
convenient and reasonable in the circumstances;
for the purposes of
subsections (8) to (8L) .
(8) Particular persons under arrest or detained may
be required to provide specimen Any person who—
(a) is arrested for an
offence against section 79or 83; or
(b) is arrested for any indictable
offence in connection with or arising out of the driving of a motor vehicle by
the person (including any offence against any provision of the Criminal Code ,
section 328A ); or
(ba) is arrested for an offence against the Criminal Code
, section 328A in connection with or arising out of the operation, or
interference with the operation, of a motor vehicle, other than an offence
mentioned in paragraph (b) ; or
(c) is, for the purposes of subsections (8)
to (8L) , detained at or taken to a police station, or detained at or taken to
a vehicle or vessel where facilities are available for the analysis by a
breath analysing instrument of a specimen of breath or by a
saliva analysing instrument of a specimen of saliva, or taken to a hospital or
other place authorised under this section;
may, while at a police station,
vehicle, vessel, hospital or other place authorised under this section as
aforesaid, be required by any police officer to provide 1 or more of the
following as any police officer requires—
(f) a specimen of the person’s blood
for a laboratory test.
(8A) Detaining person mentioned in subsection (8) A
person to whom subsection (8) applies may be detained at a police station,
vehicle, vessel, hospital or other place as aforesaid for the purposes of
subsections (8) to (8L) by a police officer.
(8B) Person may be taken to
particular places for subsections (8)–(8L) Any person referred to in
subsection (8) may, for the purposes of subsections (8) to (8L) , be taken—
(a) to a police station; or
(b) to a police station, vehicle or vessel where
facilities are available for either or both of the following—
(d) if there are reasonable grounds for believing that a doctor or nurse is
available at any other place—to that place;
and such person may be taken to
more than 1 of such places if the purposes of those subsections can not be
carried out or effected at a place to which the person has been first taken.
(8C) Police officer may require specimen if person at hospital If a person
whom a police officer may require under subsection (2) or (2A) to provide a
specimen of breath for a breath test, or a specimen of saliva for a
saliva test, by the person (an
"authorising requirement" ) is at the hospital for treatment, that person may
be required by any police officer to provide at the hospital—
(8D) Limitation applying to requisition under subsection
(8C) A requirement for a person to provide a specimen under subsection (8C)
must not be made under the subsection unless—
(a) a doctor who is familiar
with the person’s injuries and apparent state of health at the time of the
requirement approves of the person providing the specimen; and
(b) the
requirement is made as soon as practicable and within 3 hours of the event
that authorises the police officer to make the authorising requirement.
(8E)
Specimen of blood must be required if doctor’s certificate produced If a
person who is required under subsection (8) or (8C) to provide a specimen of
the person’s breath or saliva for analysis forthwith on being so required
produces to the police officer who made the requisition a doctor’s
certificate mentioned in subsection (5B) (a) material to the provision of the
specimen, the police officer must not require a specimen of breath or saliva
of the person but must require a specimen of the person’s blood.
(8F)
Providing a specimen of breath A person who is required under subsection (8)
or (8C) to provide a specimen of the person’s breath for analysis must do
so, when directed by the doctor or authorised police officer operating or who
is to operate the breath analysing instrument, by placing the person’s mouth
over the mouthpiece of the instrument and blowing directly and continuously
(and without escape of breath otherwise) through that mouthpiece into the
instrument until told to stop by the doctor or authorised police officer
operating the instrument.
(8FA) Providing a specimen of saliva A person
required under subsection (8) or (8C) to provide a specimen of the person’s
saliva for saliva analysis must do so by—
(a) placing a collection unit,
that is prescribed under a regulation, into or adjacent to the person’s
mouth when directed by the authorised police officer operating, or who is to
operate, a saliva analysing instrument; and
(b) while providing the specimen,
holding or otherwise dealing with the collection unit, in a way prescribed
under a regulation, until told to stop by the authorised police officer.
(8G)
Authorising a police officer to operate breath or saliva analysing instrument
The commissioner may, by writing under the commissioner’s hand, authorise
any police officer to be an authorised police officer to operate either or
both of the following on being satisfied the officer is competent to operate
the instrument—
(8H) Lost, mislaid or destroyed instrument of
authority If an authorised police officer’s instrument of authority issued
under subsection (8G) is lost, mislaid, or destroyed or otherwise can not be
produced—
(a) the police officer continues to be an
authorised police officer even though the instrument of authority has been
lost, mislaid, or destroyed or otherwise can not be produced; and
(b) the
commissioner may issue to the officer a replacement instrument of authority;
and
(c) the replacement instrument of authority is taken to have effect from
the date the original instrument of authority was issued.
(8I) Certificate of
commissioner about authorisation A certificate purporting to be signed by the
commissioner that the police officer named in the certificate is authorised by
the commissioner to operate a breath analysing instrument or
saliva analysing instrument is, in the absence of proof to the contrary, proof
that the named police officer is so authorised.
(8L) Application of
subsection (8M) Subsection (8M) applies if—
(a) a person has been required
to provide, under subsection (8) or (8C) , a specimen of the person’s breath
for analysis by a breath analysing instrument, a specimen of the person’s
saliva for saliva analysis or a specimen of the person’s blood for a
laboratory test; and
(b) the person—
(i) is taken under subsection (1A) not
to have provided the specimen that was required; or
(C) for an analysis by a breath analysing instrument, the instrument
indicates to the authorised police officer operating the instrument that
alcohol or some other substance is present in the mouth of the person
supplying the breath specimen; or
(D) for any other reason it is not possible
to complete the analysis.
(8M) Requiring as many specimens as considered
reasonably necessary Under subsection (8) or (8C) , the police officer is
authorised to require the person to provide as many specimens of breath,
saliva or blood as the officer considers reasonably necessary to carry out the
analysis or test.
(9) Requiring specimen of blood or urine for laboratory
test If a person—
(a) is arrested for any offence referred to in subsection
(8) ; or
(b) is, for the purposes of subsections (8) to (8L) , detained at or
taken to a police station, vehicle or vessel, or taken to a hospital or other
place authorised under this section;
and while at a police station, vehicle,
vessel, hospital or other place authorised under this section as aforesaid is
required by a police officer to provide a specimen of the person’s breath
for analysis by a breath analysing instrument, or the person’s saliva for
saliva analysis, the police officer making the requisition may—
(c) if the
police officer who arrested, detained or took as aforesaid the person believes
on reasonable grounds that at the time of the arrest, detaining or taking the
person exhibited external signs indicating that the person was affected by
liquor or a drug; and
(d) if—
(i) the analysis by the
breath analysing instrument of the specimen of breath provided under the
requisition indicates either that there is no alcohol in the person’s blood
or breath or that the concentration of alcohol in the person’s blood or
breath does not reasonably explain the external signs exhibited and observed;
or
(ii) the analysis by the saliva analysing instrument of the specimen of
saliva provided under the requisition indicates that there is no relevant drug
in the person’s saliva;
require the person to provide a specimen of the
person’s blood for a laboratory test and, subject to the direction of a
doctor or nurse, a specimen of the person’s urine for a laboratory test.
(9A) Powers of a police officer making requisition under subsection (9) The
police officer making the requisition may detain the person at a police
station, vehicle, vessel, hospital or other place authorised under this
section for a period of time that is reasonable in the circumstances to enable
a doctor to attend there in connection with the provision by the person of a
specimen of blood or urine or, as the case requires, such police officer may
take the person to a place where, in the reasonable belief of such officer, a
doctor or nurse is available for the purposes of the provision by the person
of a specimen of the person’s blood.
(9C) Providing specimen of urine as
directed by doctor or nurse A person who is required under subsection (9) to
provide a specimen of the person’s urine for a laboratory test must do so
when and as directed by a doctor or nurse.
(10) Requiring doctor or nurse to
obtain specimen of blood for laboratory test A police officer may require a
doctor or nurse who is attending a person who is at a hospital for treatment
to obtain a specimen of the person’s blood for a laboratory test, if the
person—
(a) is a person whom a police officer may require under subsection
(2) or (2A) to provide a specimen of breath for a breath test or a specimen of
saliva for a saliva test; and
(b) is, or appears to be, unable to consent to
the taking of the specimen of blood because the person is, or appears to be,
unconscious or otherwise unable to communicate.
(10A) Obligations of doctors
and nurses when taking specimen of blood The doctor or nurse must—
(a) take
a specimen of the person’s blood that will enable the laboratory test to be
carried out; or
(b) ensure that a qualified assistant takes a specimen of the
person’s blood that will enable the laboratory test to be carried out.
(10C) Specimen of blood also to be given to person The
health care professional who takes the specimen of the person’s blood under
subsection (10A) (a) or (10B) must, immediately after taking the specimen,
take another specimen of the person’s blood and give it to the person as
soon as practicable.
(10D) Doctor or nurse need not comply with subsection
(10A) in particular circumstances The doctor or nurse need not comply with
subsection (10A) if the doctor or nurse—
(a) reasonably believes that taking
the specimen would be prejudicial to the person’s treatment; or
(b) has
another reasonable excuse.
Example—
A doctor or nurse would have a
reasonable excuse if he or she was required to attend to a patient suffering a
heart attack and was unable to take the specimen of blood when required.
(10E) Limitation on requiring specimen of blood when specimen of breath
previously provided and analysed A police officer must not make a requirement
under subsection (10) relating to a person whom a police officer may require
under subsection (2) or (2A) to provide a specimen of breath for a breath test
if—
(a) under this section, the person has provided a specimen of breath
(the
"analysis specimen" ) for analysis by a breath analysing instrument in
relation to the occurrence or event in relation to which the police officer
may require a specimen of breath for a breath test as mentioned in subsection
(10) (a) ; and
(c) there is a certificate under subsection
(15) for the analysis.
(10EA) Limitation on requiring specimen of blood when
specimen of saliva previously analysed Also, a police officer must not make a
requirement under subsection (10) relating to a person whom a police officer
may require under subsection (2) or (2A) to provide a specimen of saliva for a
saliva test if—
(a) under this section, the person has provided a specimen
of saliva for saliva analysis in relation to the occurrence or event in
relation to which the police officer may require a specimen of saliva for a
saliva test as mentioned in subsection (10) (a) ; and
(c) a
notice about the analysis is retained by, or given to, the police officer as
mentioned in subsection (15AB) (b) (i) and (ii) .
(10F) Subsections (10A) and
(10C) do not create offences.
(10G) Lawful to take specimen of blood without
consent It is lawful for a health care professional to take a specimen of a
person’s blood under subsection (10A) (a) , (10B) or (10C) even though the
person has not consented to the taking.
(11) Guilt of offence and liability
for failing to provide specimen If a police officer makes a requisition under
subsection (8) , (8C) or (9) in relation to a person driving, attempting to
put in motion or in charge of a motor vehicle, tram, train or vessel, and the
person fails to provide as prescribed in this section—
(c) a specimen of
the person’s blood for a laboratory test;
each of the following applies—
(d) the person is guilty of an offence that is taken to be an offence against
the appropriate provision of section 79(1) ;
(e) the person is liable to the
same punishment in all respects, including disqualification from holding or
obtaining a Queensland driver licence, as the person would be if the offence
were actually an offence committed by the person against the appropriate
provision of section 79(1) .
(11AA) If a police officer makes a requisition
under subsection (8) , (8C) or (9) in relation to a person other than a person
mentioned in subsection (11) , and the person fails to provide as prescribed
in this section—
(c) a specimen of the person’s blood for a laboratory
test;
the person commits an offence against this Act.
Penalty—
Maximum
penalty—40 penalty units or 6 months imprisonment.
(11A) Person not
guilty under subsection (11) in particular circumstances A person referred to
in subsection (11) or (11AA) is not guilty of an offence under that subsection
if the person satisfies the justices that the requisition to provide the
specimen was not lawfully made or that the person was, because of the events
that occurred, incapable of providing the specimen or that there was some
other reason of a substantial character for the person’s failure to provide
the specimen other than a desire to avoid providing information that might be
used in evidence.
(15) Breath analysis certificate As soon as practicable
after a specimen of breath provided under a requisition has been analysed by
means of a breath analysing instrument, the doctor or
authorised police officer operating such instrument must sign 2 copies of a
certificate in writing stating the concentration of alcohol indicated by the
analysis to be present in the blood or breath of the person whose breath has
been analysed, the date and time at which the analysis was made, and must—
(a) either—
(i) if the specimen was analysed by the police officer who made
the requisition—retain 1 copy of the certificate; or
(ii)
otherwise—deliver 1 copy of the certificate to the police officer who made
the requisition; and
(b) deliver the other copy to the person whose breath
has been analysed (or to another person on behalf of that person on request by
that other person).
(15A) Subsection (15) certificate evidence A copy of a
certificate under subsection (15) —
(a) is evidence that the instrument
operated by the doctor or officer was a breath analysing instrument; and
(b)
is evidence that the instrument was in proper working order and properly
operated by the doctor or officer; and
(a) enter details
in a notice, in the approved form, about the analysis; and
(b) either—
(i)
if the specimen was analysed by the police officer who made the
requisition—retain 1 copy of the notice; or
(ii) otherwise—give 1 copy of
the notice to the police officer who made the requisition; and
(c) give a
copy of the notice to the person whose saliva has been analysed (or, at the
person’s request, to another person on the person’s behalf).
(15AC)
Approved form for person whose saliva is tested is to include particular
matters If a relevant drug is present in analysed saliva, the approved form
given to a person as mentioned in subsection (15AB) (c) for the analysis must
include notice about each of the following—
(a) the person may request a
specimen of the person’s saliva be given to him or her as stated in
subsection (20A) ;
(b) another part of the specimen that was analysed by the
saliva analysing instrument will be delivered to a laboratory of an analyst to
be tested for the presence of a relevant drug.
(15B) Certificate of failure
to provide breath or saliva specimen If a person who is required under
subsection (8) or (8C) to provide a specimen of the person’s breath for
analysis or saliva for saliva analysis fails to do so as prescribed by that
subsection, the doctor or authorised police officer operating or to operate
the breath analysing instrument or the police officer operating or to operate
the saliva analysing instrument must, as soon as practicable after the person
fails to provide the specimen, sign 2 copies of a certificate in writing
stating—
(a) the full name of the person concerned; and
(b) the name of the
police officer who made the requisition; and
(ba) whether the requisition was
for a specimen of the person’s breath for analysis or saliva for
saliva analysis; and
(e) that the
person concerned failed to provide as prescribed by that subsection a specimen
of breath or saliva when required;
and must—
(g) either—
(i) if the
operator of the breath analysing instrument is the police officer who made the
requisition—retain 1 copy of the certificate; or
(ii) otherwise—deliver 1
copy of the certificate to the police officer who made the requisition; and
(h) deliver the other copy to the person who failed to provide as prescribed
the specimen of breath or saliva when required (or to another person on behalf
of that person on request by that other person).
(15F) Subsection (15B)
certificate evidence A certificate referred to in subsection (15B) must, on
its production in any proceeding, be accepted as evidence—
(a) that a
requisition to provide a specimen of the person’s breath for analysis or
saliva for saliva analysis was made to the person concerned by the police
officer named in the certificate as the police officer making the requisition;
and
(b) that the person concerned failed to provide as prescribed by
subsections (8) to (8L) a specimen of breath or saliva when required; and
and until the contrary is proved is conclusive such evidence.
(15G) Evidence from breath analysing instrument Evidence by a doctor or an
authorised police officer or by a copy of a certificate referred to in
subsection (15) purporting to be signed by a doctor or an
authorised police officer of the concentration of alcohol indicated to be
present in the blood or breath of a person by a breath analysing instrument
operated by such doctor or authorised police officer is, subject to subsection
(15H) , conclusive evidence of the concentration of alcohol present in the
blood or breath of the person in question at the time (being in the case of
such certificate the date and time stated therein) the breath of that person
was analysed and at a material time in any proceedings if the analysis was
made not more than 3 hours after such material time, and at all material times
between those times.
(15H) Evidence may be negatived The defendant may
negative such evidence as aforesaid if the defendant proves that at the time
of the operation of the breath analysing instrument it was defective or was
not properly operated.
(16) Delivery of blood, urine or saliva specimen to
laboratory As soon as practicable after—
(a) a specimen of blood or urine
has been obtained under this section; or
(b) a specimen of saliva has been
obtained under this section and a notice is retained by, or given to a police
officer as mentioned in subsection (15AB) (b) (i) and (ii) stating that a
relevant drug was present in the analysed specimen of saliva;
the police
officer who required the specimen must deliver it, or arrange for it to be
delivered on the police officer’s behalf, to the laboratory of an analyst.
(16A) Prescribed delivery of specimen to laboratory The specimen of blood,
urine or saliva to be delivered under subsection (16) must be delivered to the
analyst’s laboratory in the way prescribed under a regulation.
(16B)
Certificate by analyst is evidence of stated matters A certificate purporting
to be signed by an analyst and stating—
(a) that there was received at the
laboratory of the analyst from the police officer named in the certificate a
specimen of the blood, or a specimen of the saliva, as stated in the
certificate (the
"delivered specimen" ) of the person named in the certificate provided by that
person on the date and at the place and time stated in the certificate; and
(b) that the analyst or another analyst made a laboratory test of the
delivered specimen on the date and at the place stated in the certificate; and
(ba) if a laboratory test of the delivered specimen was done by another
analyst—the analyst who signed the certificate—
(i) examined the
laboratory’s records about the receipt, storage and testing of the
delivered specimen; and
(ii) confirms the records show that all quality
assurance procedures for the receipt, storage and testing of the
delivered specimen that were in place in the laboratory at the time of the
laboratory test were complied with; and
(A) the concentration of alcohol
in the person’s blood indicated by the laboratory test was a stated number
of milligrams of alcohol in the blood per 100mL of blood; or
(B) a stated
drug or metabolite of a stated drug was indicated by the laboratory test to be
present in the person’s blood; or
(ii) if the delivered specimen was a
specimen of saliva—a stated relevant drug or metabolite of a stated relevant
drug was indicated by the laboratory test to be present in the person’s
saliva;
is evidence of those matters and until the contrary is proved is
conclusive such evidence.
(16BA) Request for laboratory’s records If the
commissioner receives a written request for a copy of the laboratory’s
records about the receipt, storage or testing of a delivered specimen from the
person who gave the specimen, the commissioner must give a copy of the records
to the person within 7 business days after receiving the request.
(16C)
Certificate by health care professional of failure to provide blood specimen
If a person who is required under subsection (8) , (8C) or (9) to provide a
specimen of the person’s blood for a laboratory test fails to do so as
prescribed by the subsection under which the requisition is made, the
health care professional by whom the specimen is to be taken must, as soon as
practicable thereafter, sign 2 copies of a certificate in writing stating—
(a) the full name of the person concerned; and
(b) the name of the police
officer who made the requisition; and
(c) that the person concerned failed to
provide a specimen of blood when required;
and must deliver—
(e) 1 copy of
such certificate to the police officer who made the requisition; and
(f) the
other copy to the person who failed to provide the specimen of blood when
required (or to another person on behalf of that person on request by that
other person).
(16E) Subsection (16C) certificate evidence A certificate
referred to in subsection (16C) must, on its production in any proceeding, be
accepted as evidence—
(a) that a requisition to provide a specimen of the
person’s blood for a laboratory test was made to the person concerned by the
police officer named in the certificate as the police officer making the
requisition; and
(b) that the person concerned failed to provide as
prescribed by the subsection under which the requisition was made a specimen
of the person’s blood when required;
and until the contrary is proved is
conclusive such evidence.
(16F) Three hours proof of alcohol or drug
concentration by laboratory test Evidence by an analyst or by a certificate
referred to in subsection (16B) of the concentration of alcohol indicated to
be present in, or of the drug or metabolite of the drug indicated to be
present in, the blood of a person by a laboratory test of a specimen of the
blood of that person is, subject to subsection (16G) , conclusive evidence of
the presence of the concentration of alcohol in, or the drug or the metabolite
of the drug in, the blood of that person at the time (being in the case of
such certificate the date and time stated therein) when the person provided
the specimen and at a material time in any proceedings if the specimen was
provided not more than 3 hours after such material time, and at all material
times between those times.
Note—
The reference to drug in this subsection,
because of its generality, includes a relevant drug.
(16FA) Three hours
proof of relevant drug presence by laboratory test Evidence by an analyst, or
by a certificate referred to in subsection (16B) , that a stated relevant drug
or metabolite of a stated relevant drug is indicated to be present in the
blood or saliva of a person by a laboratory test of a specimen of the blood or
saliva of the person, subject to subsection (16G) , is conclusive evidence of
the presence of the stated relevant drug or the metabolite of the stated
relevant drug in the person’s blood or saliva—
(a) at the time (being for
a certificate the date and time stated in the certificate) when the person
provided the specimen; and
(b) at a material time in any proceedings if the
specimen was provided not more than 3 hours after the material time; and
(c)
at all material times between those times.
(16G) Evidence may be negatived
The defendant may negative the evidence mentioned in subsection (16F) or
(16FA) if the defendant proves the result of the laboratory test of that
specimen of blood or saliva was not a correct result.
(16H) Adjournment of
hearing for reasons relating to certificate of analyst The court must on the
application of the complainant adjourn the hearing as necessary to enable the
production in evidence of the certificate of the analyst and if within 3 days
after providing the specimen the defendant has given to the police officer in
charge of the police station at which or nearest to the hospital or other
place where the specimen of blood for the laboratory test, or the specimen of
saliva for saliva analysis, was provided a notice in writing that the
defendant requires a copy of the certificate to be given to the defendant at
the address stated in the notice must, at the request of the defendant,
adjourn the hearing as necessary to ensure that such copy has been given to
the defendant at such address not less than 3 days before the production of
the certificate in evidence.
(16I) Such copy may be given either personally
or by sending it by registered post or certified mail.
(16J) Deposition about
giving certificate The person who gives the copy (whether personally or by
sending it by registered post or certified mail) may attend before any justice
of the peace having jurisdiction in the State or part of the State or part of
the Commonwealth where the person gives the copy and depose on oath and in
writing endorsed on a copy of the certificate to the giving thereof.
(16K)
Subsection (16J) deposition evidence The deposition is, on production to the
court, evidence of the matters contained therein and, until the contrary is
proved, is conclusive such evidence.
(16L) Court may deal with a charge even
if laboratory test result unknown Nothing contained in subsections (16H) to
(16K) precludes the court in its discretion from dealing with a charge of an
offence against section 79(1) or (2AA) on the application of the defendant
notwithstanding that at that time the result of the laboratory test of the
specimen of the blood or of saliva of the defendant is not known if—
(a) the
defendant pleads guilty to the offence; and
(b) the court is satisfied that
the facts available to be put forward by the prosecution, and unchallenged by
the defendant, are sufficient to enable it to deal properly with the matter.
(18) Certificate by health care professional is evidence of stated matters A
certificate purporting to be signed by a health care professional that on a
date and at a place and time stated therein the health care professional took
a specimen of blood for a laboratory test, or a specimen of saliva for
saliva analysis, of a person named in the certificate must, on its production
in any proceeding, be accepted as evidence of those matters and until the
contrary is proved is conclusive such evidence.
(18A) Certificate by
particular person is evidence of matters relating to the person If by any
provision of this section a certificate of or purporting to be signed by a
health care professional, an authorised police officer or an analyst is made
evidence of any matter, a certificate purporting to be signed by a
health care professional, an authorised police officer or an analyst, as the
case may be, as to that matter must, on its production in any proceeding, be
accepted as evidence—
(a) that the signature on the certificate is that of
the person by whom the certificate purports to be made; and
(b) of all
matters contained therein including the status, authority or qualification of
the person by whom the certificate purports to be made;
and until the contrary
is proved is conclusive such evidence.
(19) Evidence of compliance with
subsection (16A) If a police officer delivers a specimen of blood (the
"specimen" ), or a specimen of saliva (also the
"specimen" ), or arranges for the specimen to be delivered on the officer’s
behalf, to an analyst’s laboratory in a way prescribed by regulation, in any
proceeding—
(a) evidence of that fact given by the officer and any person
who delivered the specimen on the officer’s behalf; and
(b) a certificate,
produced in evidence, purporting to be signed by the analyst certifying that
the specimen was received at the analyst’s laboratory from the officer;
is
sufficient evidence of compliance with subsection (16A) .
(20) Person
providing specimen of blood or saliva may request specimen A person who, being
thereunto required under subsection (8) , (8C) or (9) , has provided a
specimen of blood for a laboratory test, or a specimen of saliva for
saliva analysis, may when the person provides the specimen or immediately
after providing it and where the person provides it (or another person on
behalf of that person may when or immediately after the person provides the
specimen and where the person provides it) request—
(b) the police officer who took the
specimen of saliva for saliva analysis to give to the person a specimen of the
person’s saliva.
(21) Definition for subsection (22) In subsection (22) —
"relevant provision" means—
(a) subsection (8) to the extent it applies to a
person mentioned in subsection (8) (a) , (b) or (c) ; or
(b) subsection (8C)
to the extent it applies to a person who may be required to provide a specimen
of breath for a breath test under subsection (2) (a) , (b) , (c) or (d) or
(2A) (a) , (b) or (c) .
(20A) Health care professional must comply with
request under subsection (20) Upon such request, subject to the person
concerned then and there providing a second specimen of blood or saliva, the
health care professional must give the second specimen of blood, or the police
officer must give the second specimen of saliva, to the person or to the
person requesting it on the person’s behalf.
(22) Application of subsection
(22AA) Subsection (22AA) applies if—
(a) the analysis by means of a
breath analysing instrument of a specimen of breath of a person required by a
police officer to be provided under a relevant provision indicates that the
person is over the general alcohol limit or in the case of a person to whom
section 79(2A) , (2B) , (2D) , (2J) , (2K) or (2L) refers, that the person is
over the no alcohol limit; or
(ab) the analysis by means of a
saliva analysing instrument of a specimen of saliva of a person required by a
police officer to be provided under a relevant provision indicates that a
relevant drug is present in the person’s saliva; or
(b) a person required
to provide a specimen of breath, or a specimen of saliva for saliva analysis,
as mentioned in paragraph (a) or (ab) fails to provide the specimen as
prescribed under subsections (8) to (8L) ; or
(ba) a person has been arrested
for an offence under section 79(1) but has not been required by a police
officer to provide a specimen of breath for analysis or a specimen of blood
for a laboratory test under subsection (8) or (8C) —
(i) because the person
is violent; or
(ii) because of the external signs exhibited by the person,
the police officer reasonably believes the person is so affected by alcohol or
a drug as to be unable to provide the specimen; or
(B) a doctor or nurse is
not available to take a specimen of blood from the person for a laboratory
test or to direct a qualified assistant to take the specimen; or
(c) a person
who is required by a police officer under a relevant provision to provide a
specimen of the person’s blood for a laboratory test permits a specimen of
the person’s blood to be taken for the purpose and thereupon such police
officer requires that person to provide a specimen of breath for a
breath test, or saliva for a saliva test, by the officer (the officer being
hereby authorised to require such a specimen of breath for a breath test, or
saliva for a saliva test, to be provided), and—
(i) it appears to the police
officer in consequence of the breath test carried out by the officer that the
device by means of which the test is carried out indicates that the person is
over the general alcohol limit or in the case of a person to whom section 79(2A) , (2B) , (2D) , (2J) , (2K) or (2L) refers, that the person is over the
no alcohol limit; or
(ia) it appears to the police officer in consequence of
the saliva test carried out by the officer that the device by means of which
the test is carried out indicates a relevant drug is present in the person’s
saliva; or
(ii) the person fails to provide such specimen of breath or
saliva; or
(d) a person who is required by a police officer under a
relevant provision, or under subsection (9) in relation to a
relevant provision, to provide a specimen of the person’s blood for a
laboratory test fails to provide such specimen; or
(e) a specimen of a
person’s blood is taken under a relevant provision, or under another
provision of this section in relation to a relevant provision, for a
laboratory test and a doctor or nurse certifies in writing to the police
officer who made the requisition for the provision or taking of the specimen
of blood that, in respect of the person concerned, the case is a proper one
for the suspension of that person’s driver licence for a period of 24 hours.
(22AA) Suspension of driver licence for 24 hours in particular circumstances
The person’s driver licence is suspended for 24 hours from when—
(a) the
analysis mentioned in subsection (22) (a) or (ab) was made; or
(b) the
requirement mentioned in subsection (22) (b) , (c) (ii) or (d) was made; or
(c) the arrest mentioned in subsection (22) (ba) was made; or
(d) the
breath test of the specimen of the person’s breath mentioned in subsection
(22) (c) (i) , or the saliva test of the specimen of the person’s saliva
mentioned in subsection (22) (c) (ia) , was carried out; or
(e) the
certificate in writing mentioned in subsection (22) (e) was given.
(22A)
Police officer to give statement of suspension The police officer who required
the specimen must sign and deliver to the person concerned (or to another
person on behalf of that person at the request of that other person) a
statement in writing that the driver licence of the person concerned is
suspended as prescribed by subsection (22AA) for the period of 24 hours
commencing at the time stated therein.
(22B) Arrest immaterial It is
immaterial, in any of the cases referred to in subsection (22) , whether the
person concerned is arrested or not.
(22C) No review or appeal lies for
suspension Notwithstanding any other provision of this Act, a review or an
appeal does not lie in respect of the suspension of a driver licence under
subsection (22AA) .
(22D) Offence of driving motor vehicle during suspension
Any person who, while the person’s driver licence is suspended under
subsection (22AA) , drives a motor vehicle on a road or elsewhere is guilty of
an offence and liable to a penalty not exceeding 14 penalty units or to
imprisonment for a term not exceeding 1 year.
(23) If doctor unavailable,
police officer may take person to another place for taking of specimen If
under this section a police officer may in the performance, exercise or
carrying out of the officer’s functions, powers or duties under this section
take a person to a hospital or police station for the taking of a specimen and
the police officer believes on reasonable grounds that a doctor is not
available at the hospital or to go to the police station, or that, for the
taking of a specimen of blood at the hospital, a nurse also is not available,
the officer may, whether the person concerned is under arrest or not, take
such person to a place where to the officer’s knowledge or in the
officer’s reasonable belief a doctor is available for the taking of a
specimen.
(24) Evidence of concentration of alcohol, drug etc. is admissible
in trial on indictment Evidence of either or both of the following—
(a) the
presence of the concentration of alcohol in the blood or breath of a person,
or the concentration of a drug or metabolite of a drug (other than a relevant
drug or a metabolite of a relevant drug) in the blood of a person;
(b) the
presence of a relevant drug in the blood or saliva of a person;
at a time
material to the time of an offence as hereinafter mentioned obtained in
accordance with any of the provisions of this section is admissible in the
trial on indictment of that person of any offence in connection with or
arising out of the driving, operation, or interference with the operation, of
a motor vehicle or on any hearing of a charge summarily against the person of
an offence against any provision of the Criminal Code , section 328A , and
must not be excluded only because the evidence was compulsorily obtained or
otherwise obtained in accordance with this section.
(24A) Provisions about
evidence admissible under subsection (24) Evidence admissible under subsection
(24) —
(a) may be given in the same manner, whether by a witness or by a
certificate, as it may be given under the provisions of this section, other
than that subsection, in respect of an offence against this Act; and
(b) is
admissible in the same circumstances and in all respects to the same extent as
it would be admissible under the provisions of this section, other than
subsection (24) , in respect of an offence against this Act and, subject to
paragraph (c) , has the same evidentiary value in relation to the same matters
and times as are provided for by the provisions of this section, other than
that subsection, in respect of such evidence; and
(c) where such evidence
indicates a person was over the high alcohol limit, is conclusive evidence
that the person was adversely affected by alcohol at all times in relation to
which such evidence has evidentiary value under this section.
(26) Defendant
to give 14 days notice of intention to lead evidence of particular matters If
a defendant proposes to lead evidence to prove in any proceeding—
(a) under
subsection (15H) , that at the time of the operation of a
breath analysing instrument it was defective or was not properly operated; or
(b) under subsection (16G) , that the result of a laboratory test of a
specimen of blood or saliva referred to in subsection (16F) or (16FA) was not
a correct result; or
(c) under subsection (18) or (18A) , that the signature
referred to therein is not the signature of the health care professional,
authorised police officer or analyst by whom the certificate referred to
therein purports to be signed or that any matter contained in the said
certificate is not correct;
the defendant must give notice thereof to the
complainant not less than 14 clear days before the return date of the summons
or the appointed date for the hearing of the charge.
(27) Requirements for
notice under subsection (26) The notice must—
(a) be written; and
(b) be
signed by the defendant or the defendant’s solicitor; and
(c) for a notice
under subsection (26) (a) —state the grounds on which the defendant intends
to rely to prove that the breath analysing instrument was defective or was not
properly operated; and
Example of paragraph (c)—
a claim that the
breath analysing instrument was defective because it mistook the presence of
mouthwash in the defendant’s mouth for the presence of alcohol in the
defendant’s blood
(d) for a notice under subsection (26) (b) —state the
grounds on which the defendant intends to rely to prove that the result of the
laboratory test was not a correct result.
(28) Court’s leave necessary for
particular persons to be required to attend hearing A defendant who gives a
notice under subsection (26) (b) may, only with the court’s leave, require a
person who was involved in the taking, receipt, storage or testing of the
specimen of blood or saliva to attend the hearing to give evidence.
(29) When
court may grant leave under subsection (28) The court may grant the leave only
if satisfied—
(a) that the complainant has been given an opportunity to make
a submission to the court about granting the leave; and
(b) that—
(i) there
is a reasonable possibility that an irregularity or defect exists in relation
to the taking, receipt, storage or testing of the specimen of blood or saliva
about which the person required to attend the hearing is able to give
evidence; or
(ii) it is otherwise in the interests of justice that the person
be required to attend the hearing to give evidence relevant to the proceeding.
(30) Matters for proceedings for offence against section 79 or 83 or the
Criminal Code, section 328A In a proceeding for an offence against section 79or 83or the Criminal Code , section 328A , unless the contrary is proved—
(a) a qualified assistant who takes a specimen of blood from a person for a
laboratory test is to be taken to have been directed by a doctor or nurse to
take the specimen; and
(b) any equipment used in a laboratory test of a
specimen of blood or saliva is to be taken to have given accurate results.
