HARBORS AND NAVIGATION ACT 1993 - SECT 71
HARBORS AND NAVIGATION ACT 1993 - SECT 71
71—Authorised person may require alcotest or breath analysis
(1) An authorised
person may require—
(a) a
person who is operating a vessel or who has operated a vessel; or
(b) a
person who is or was a member of the crew of a vessel that is being operated
or has been operated, and who is or was, or ought to be or to have been
engaged in duties affecting the safe navigation, operation or use of the
vessel,
to submit to an alcotest or a breath analysis, or both.
(2) An authorised
person may direct a person who is apparently in charge of a vessel to stop the
vessel and may give other reasonable directions for the purpose of making a
requirement under this section that a person submit to an alcotest or a breath
analysis.
(3) A person must
forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(4) An alcotest or a
breath analysis to which a person has been required to submit under this
section may not be commenced more than 8 hours after—
(a) the
person ceased to operate a vessel; or
(b) the
person was a member of the crew of a vessel who was, or ought to have been,
engaged in duties affecting the safe navigation, operation or use of the
vessel.
(5) The performance of
an alcotest or a breath analysis that has been required under this section
commences when a direction is first given by an authorised person that the
person concerned exhale into the alcotest apparatus or
breath analysing instrument to be used for the alcotest or breath analysis.
(6) A breath analysis
may only be conducted by a person authorised by the Commissioner of Police to
operate a breath analysing instrument.
(7) The regulations
may prescribe the manner in which an alcotest or breath analysis is to be
conducted and may, for example, require that more than 1 sample of breath is
to be provided for testing or analysis and, in such a case, specify which
reading of the apparatus or instrument will be taken to be the result of the
alcotest or breath analysis for the purposes of this Division and any other
Act.
(8) A person required
under this section to submit to an alcotest or a breath analysis must not
refuse or fail to comply with all reasonable directions of an
authorised person in relation to the requirement and, in particular, must not
refuse or fail to exhale into the apparatus by which the alcotest or
breath analysis is conducted in accordance with the directions of the
authorised person.
Penalty:
(a) for
a first offence—a fine of not less than $1 100 and not more than
$1 600;
(b) for
a subsequent offence—a fine of not less than $1 900 and not more
than $2 900.
(9) It is a defence to
a prosecution under subsection (8) that—
(a) the
requirement or direction to which the prosecution relates was not lawfully
made; or
(b) the
person was not allowed the opportunity to comply with the requirement or
direction after having been given the prescribed oral advice in relation
to—
(i)
the consequences of refusing or failing to comply with
the requirement or direction; and
(ii)
the person's right to request the taking of a blood
sample under subsection (10); or
(c)
there was, in the circumstances of the case, good reason for the defendant to
refuse or fail to comply with the requirement or direction.
(10) If a person fails
to comply with the requirement or direction under this section by reason of
some physical or medical condition of the person and forthwith makes a request
of an authorised person that a sample of the person's blood be taken by a
medical practitioner or registered nurse, an authorised person must do all
things reasonably necessary to facilitate the taking of a sample of the
person's blood—
(a) by a
medical practitioner or registered nurse nominated by the person; or
(b)
if—
(i)
it becomes apparent to the authorised person that there
is no reasonable likelihood that a medical practitioner or registered nurse
nominated by the person will be available to take the sample within 1 hour of
the time of the request at some place not more than 10 kilometres
distant from the place of the request; or
(ii)
the person does not nominate a particular
medical practitioner or registered nurse,
by any medical practitioner or registered nurse who is available to take the
sample.
(11) A person is not
entitled to refuse or fail to comply with a requirement or direction under
this section on the ground that—
(a) the
person would, or might, by complying with that requirement or direction,
furnish evidence that could be used against the person; or
(b) the
person consumed alcohol after the person last operated a vessel or attempted
to put a vessel in motion and before the requirement was made or the direction
was given.
(12) A person may not
raise a defence that the person had good cause for a refusal or failure to
comply with a requirement or direction under this section by reason of some
physical or medical condition of the person unless—
(a) a
sample of the person's blood was taken in accordance with
subsection (10); or
(b) the
person made a request as referred to in that subsection, but—
(i)
an authorised person failed to facilitate the taking of a
sample of the person's blood as required by that subsection; or
(ii)
a medical practitioner or registered nurse was not
reasonably available for the purpose of taking such a sample; or
(c) the
taking of a sample of a person's blood in accordance with subsection (10)
was not possible or reasonably advisable or practicable in the circumstances
by reason of some physical or medical condition of the person.
(13) In determining
whether an offence is a first or subsequent offence for the purposes of this
section, any previous prescribed alcohol or drug offence for which the
defendant has been convicted will be taken into account, but only if the
previous offence was committed within the period of 5 years immediately
preceding the date on which the offence under consideration was committed.
(a)
refuses or fails to comply with a direction under this section; or
(b)
submits to an alcotest and the alcotest indicates that the prescribed
concentration of alcohol may be present in the blood of the person,
there will be reasonable ground to suspect that the prescribed
concentration of alcohol is present in the person's blood for the purposes of
the exercise of any power conferred on a police officer (including a power of
arrest) to prevent the person committing an offence by operating a vessel in
contravention of this Division.
(15) Subsection (14)
does not limit the circumstances in which such a power may otherwise be
exercised by a police officer under this or any other Act.