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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Road Safety (Drug Driving) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Principal Act 2
4. Definitions 2
5. Purposes of Part 5 3
6. Interpretative provisions 3
7. New offences involving drugs 4
8. Provisions about cancellation and disqualification 6
9. Direction to impose alcohol interlock condition 7
10. Driver education programs 7
11. Preliminary testing stations 7
12. Breath analysis 8
13. New sections 55D and 55E inserted 8
55D. Preliminary oral fluid tests 8
55E. Oral fluid testing and analysis 10
14. Evidentiary provisions--blood tests 18
15. Evidentiary provisions--urine tests 18
16. New section 57B inserted 19
57B. Evidentiary provisions--oral fluid tests 19
17. Evidentiary provisions--breath tests 24
18. New section 58B inserted 24
58B. Prohibited analysis 24
19. Power to prevent driving by incapable persons 25
20. Drug-driving infringements 26
21. Supreme Court--limitation of jurisdiction 27
22. Regulations 27
23. Sunsetting of drug-driving provisions 27
ENDNOTES 31
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PARLIAMENT OF VICTORIA
Initiated in Assembly 28 October 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Road Safety Act 1986 to provide for random drug
testing for drivers and create new offences for failing a drug test and
for other purposes.
Road Safety (Drug Driving) Act 2003
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Road Safety Act 1986 to provide for random
drug testing for drivers and create new offences
5 for failing a drug test.
2. Commencement
(1) Subject to sub-section (2), this Act (except
section 23) comes into operation on a day or days
to be proclaimed.
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s. 3
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(2) If a provision of this Act (other than section 23)
does not come into operation before 1 December
2004, it comes into operation on that day.
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(3) Section 23 comes into operation on 1 July 2005.
5 3. Principal Act
See: In this Act, the Road Safety Act 1986 is called
Act No.
the Principal Act.
127/1986.
Reprint No. 7
as at
19 June 2002
and
amending
Act Nos
19/1991,
46/2002 and
44/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
4. Definitions
(1) In section 3(1) of the Principal Act insert the
10 following definitions--
' "drug-driving infringement" means an offence
under section 49(1)(bb), (h) or (i), other than
an accompanying driver offence, in
circumstances where the offence is a first
15 offence having regard to the provisions of
section 48(2) or would, because of section
50AA, be treated as a first offence for the
purposes of sub-section (1), (1A), (1AB),
(1B) or (1E) of section 50;
20 "prescribed concentration of drugs" means, in
the case of a prescribed illicit drug, any
concentration of the drug present in the
blood or oral fluid of that person;
"prescribed illicit drug" means--
25 (a) methylamphetamine; or
(b) delta-9-tetrahydrocannabinol;'.
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(2) In paragraph (b) of the definition of "drink-driving
infringement" in section 3(1) of the Principal Act,
for "sub-sections (1), (1A), (1AB) and (1B)"
Victorian Legislation and Parliamentary Documents
substitute "sub-section (1), (1A), (1AB), (1B)
5 or (1E)".
(3) In the definition of "traffic infringement" in
section 3(1) of the Principal Act, after paragraph
(e) insert--
"(f) a drug-driving infringement; or".
10 5. Purposes of Part 5
In section 47 of the Principal Act--
(a) in paragraph (c), for "alcohol." substitute
"alcohol; and";
(b) after paragraph (c) insert--
15 "(d) provide a simple and effective means of
establishing the presence of a drug in
the blood, urine or oral fluid of a
driver.".
6. Interpretative provisions
20 (1) After section 48(1)(ab) of the Principal Act
insert--
"(ac) if it is established that at any time within
3 hours after an alleged offence against
paragraph (bb) of section 49(1), a certain
25 drug was present in the blood or oral fluid of
the person charged with the offence it must
be presumed, until the contrary is proved,
that that drug was present in the person's
blood or oral fluid at the time at which the
30 offence is alleged to have been committed;
and".
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(2) After section 48(1A) of the Principal Act insert--
"(1B) For the purposes of an alleged offence
Victorian Legislation and Parliamentary Documents
against paragraph (h) or (i) of section 49(1) it
must be presumed that a drug found by an
5 analyst to be present in the sample of blood
or oral fluid provided by, or taken from, the
person charged was not due solely to the
consumption or use of that drug after driving
or being in charge of a motor vehicle unless
10 the contrary is proved by the person charged
on the balance of probabilities by sworn
evidence given by him or her which is
corroborated by the material evidence of
another person.".
15 7. New offences involving drugs
(1) After section 49(1)(ba) of the Principal Act
insert--
"(bb) drives a motor vehicle or is in charge of a
motor vehicle while the prescribed
20 concentration of drugs or more than the
prescribed concentration of drugs is present
in his or her blood or oral fluid; or".
(2) After section 49(1)(ea) of the Principal Act
insert--
25 "(eb) refuses to provide a sample of oral fluid in
accordance with section 55D or 55E when
required under that section to do so or
refuses to comply with any other
requirement made under that section; or".
30 (3) In section 49(1)(g) of the Principal Act--
(a) for "or 56" substitute ", 55B, 55E or 56";
(b) in sub-paragraph (ii), for "motor vehicle."
substitute "motor vehicle; or".
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(4) After section 49(1)(g) of the Principal Act
insert--
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"(h) within 3 hours after driving or being in
charge of a motor vehicle provides a sample
5 of oral fluid in accordance with section 55E
and--
(i) the sample has been analysed by a
properly qualified analyst within the
meaning of section 57B and the analyst
10 has found that at the time of analysis a
prescribed illicit drug was present in
that sample in any concentration; and
(ii) the presence of the drug in that sample
was not due solely to the consumption
15 or use of that drug after driving or
being in charge of the motor vehicle; or
(i) has had a sample of blood taken from him or
her in accordance with section 55, 55B, 55E
or 56 within 3 hours after driving or being in
20 charge of a motor vehicle and--
(i) the sample has been analysed by a
properly qualified analyst within the
meaning of section 57 and the analyst
has found that at the time of analysis a
25 prescribed illicit drug was present in
that sample in any concentration; and
(ii) the presence of the drug in that sample
was not due solely to the consumption
or use of that drug after driving or
30 being in charge of the motor vehicle.".
(5) After section 49(3) of the Principal Act insert--
"(3AAA) A person who is guilty of an offence under
paragraph (bb), (h) or (i) of sub-section (1),
other than an accompanying driver offence,
35 is liable--
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(a) in the case of a first offence, to a fine of
not more than 6 penalty units; and
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(b) in the case of a subsequent offence, to a
fine of not more than 12 penalty units.".
5 (6) In section 49(5) of the Principal Act, for "(g)"
substitute "(g), (h) or (i)".
(7) After section 49(6) of the Principal Act insert--
"(6A) In any proceedings for an offence under
paragraph (h) or (i) of sub-section (1)
10 evidence as to the effect of the consumption
or use of a drug on the defendant is
admissible for the purpose of rebutting the
presumption created by section 48(1B) but is
otherwise inadmissible.".
15 (8) After section 49(8) of the Principal Act insert--
"(9) If on a prosecution for an offence under
paragraph (ba) of sub-section (1), the court is
not satisfied that the defendant is guilty of
that offence but is satisfied that the defendant
20 is guilty of an offence under paragraph (bb)
of that sub-section, the court may find the
defendant guilty of an offence under
paragraph (bb) and punish the defendant
accordingly.".
25 8. Provisions about cancellation and disqualification
(1) After section 50(1D) of the Principal Act insert--
"(1E) On convicting a person, or finding a person
guilty of an offence under section 49(1)(bb),
(h) or (i), the court may, if the offender holds
30 a driver licence or permit, cancel that licence
or permit and, whether or not the offender
holds a driver licence or permit, disqualify
the offender from obtaining one for such
period as the court thinks fit, not being more
35 than--
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(a) in the case of a first offence, 3 months;
and
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(b) in the case of a subsequent offence,
6 months.".
5 (2) In column 1 of the Table in section 50AA of the
Principal Act, for "and (1B)" substitute ", (1B)
and (1E)".
9. Direction to impose alcohol interlock condition
After section 50AAA(3) of the Principal Act
10 insert--
"(4) For the purposes of this section, in
determining whether an offence referred to
in sub-section (1)(a) was or was not a first
offence, any previous conviction or finding
15 of guilt of the person of an offence under
section 49(1)(a) (involving only drugs) or of
an offence under section 49(1)(ba), (bb), (h)
or (i) is to be disregarded, despite section
48(2).".
20 10. Driver education programs
(1) In section 50A(1A) of the Principal Act--
(a) after "(ba)," insert "(bb),";
(b) for "or (ea)" substitute ", (ea), (h) or (i)".
(2) In section 50A(2) of the Principal Act--
25 (a) after "(b)," insert "(bb),";
(b) for "or (g)" substitute ", (g), (h) or (i)".
11. Preliminary testing stations
(1) In section 53(1)(b) of the Principal Act, omit
"breath".
30 (2) Insert the following heading to section 54 of the
Principal Act--
"Preliminary testing stations".
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(3) In section 54(1), (2), (3) and (4) of the Principal
Act, for "breath testing" substitute "testing".
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(4) In section 54(2)(a) of the Principal Act, for "in
quick succession" substitute "or preliminary oral
5 fluid tests".
(5) In section 55A(1)(b) of the Principal Act, omit
"breath".
12. Breath analysis
In section 55(1), (2) and (2AA)(a) of the Principal
10 Act, after "has furnished the sample of breath"
insert "and any further sample required to be
furnished under sub-section (2A)".
13. New sections 55D and 55E inserted
After section 55C of the Principal Act insert--
15 '55D. Preliminary oral fluid tests
(1) A member of the police force may at any
time require--
(a) any person he or she finds driving a
motor vehicle or in charge of a motor
20 vehicle; or
(b) the driver of a motor vehicle that has
been required to stop at a preliminary
testing station under section 54(3); or
(c) any person who he or she believes on
25 reasonable grounds has within the last
3 preceding hours driven or been in
charge of a motor vehicle when it was
involved in an accident; or
(d) any person who he or she believes on
30 reasonable grounds was, within the last
3 preceding hours, an occupant of a
motor vehicle when it was involved in
an accident, if it has not been
established to the satisfaction of the
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member of the police force which of
the occupants was driving or in charge
of the motor vehicle when it was
Victorian Legislation and Parliamentary Documents
involved in the accident--
5 to undergo a preliminary oral fluid test by a
prescribed device and, for that purpose, may
further require the person, if inside a motor
vehicle, to leave the motor vehicle for the
purpose of undergoing the test.
10 (2) An officer of the Corporation or of the
Department of Infrastructure who is
authorised in writing by the Corporation or
the Secretary, as the case requires, for the
purposes of this section may at any time
15 require any person he or she finds driving a
commercial motor vehicle or in charge of a
commercial motor vehicle to undergo a
preliminary oral fluid test by a prescribed
device and, for that purpose, may further
20 require the person, if inside a motor vehicle,
to leave the motor vehicle for the purpose of
undergoing the test.
(3) A preliminary oral fluid test must be carried
out in accordance with the prescribed
25 procedure.
(4) The Corporation or the Secretary may only
authorise an officer for the purposes of this
section if satisfied that the officer has the
appropriate training to carry out a
30 preliminary oral fluid test in accordance with
the prescribed procedure.
(5) A prescribed device may be comprised of a
collection unit and a testing unit and one or
more other parts.
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(6) A person required to undergo a preliminary
oral fluid test must do so by placing the
prescribed device, or the collection unit of
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the device, into his or her mouth and
5 chewing or sucking on it until the member of
the police force or the officer of the
Corporation or of the Department of
Infrastructure (as the case requires) is
satisfied that a sufficient sample of oral fluid
10 has been captured by the device or unit.
(7) Without limiting section 54(3), a person
required to undergo a preliminary oral fluid
test is required to remain at the place at
which the test is being carried out until the
15 sample of oral fluid provided has been tested
by a prescribed device.
(8) A person is not obliged to undergo a
preliminary oral fluid test if more than
3 hours have passed since the person last
20 drove, was an occupant of or was in charge
of a motor vehicle.
55E. Oral fluid testing and analysis
(1) In this section--
"authorised officer" means a member of
25 the police force or an officer of the
Corporation or of the Department of
Infrastructure authorised in writing
under sub-section (6) by the Chief
Commissioner of Police, the
30 Corporation or the Secretary, as the
case requires, for the purposes of this
section;
"enforcement officer" means an officer of
the Corporation or of the Department of
35 Infrastructure authorised under section
55D(2) for the purposes of section 55D.
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(2) If a person undergoes a preliminary oral fluid
test when required to do so under section
55D by a member of the police force or an
Victorian Legislation and Parliamentary Documents
enforcement officer and--
5 (a) the test, in the opinion of the member
or enforcement officer in whose
presence it is made, indicates that the
person's oral fluid contains a prescribed
illicit drug; or
10 (b) the person, in the opinion of the
member or enforcement officer, refuses
or fails to carry out the test in the
manner specified in section 55D(6)--
any member of the police force or, if the
15 requirement for the preliminary oral fluid
test was made by an enforcement officer, any
member of the police force or any
enforcement officer may require the person
to provide a sample of oral fluid for testing
20 by a prescribed device and, if necessary,
analysis by a properly qualified analyst
within the meaning of section 57B and for
that purpose may further require the person
to accompany any member of the police
25 force or, if the requirement for the
preliminary oral fluid test was made by an
enforcement officer, any member of the
police force or any enforcement officer to a
place or vehicle where the sample is to be
30 provided and to remain there until--
(c) the person has provided the sample and
any further sample required to be
provided under sub-section (5), the
sample has been tested by a prescribed
35 device and the person has been given
(if necessary) a part of the sample
under sub-section (11) and complied
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with any requirement made of him or
her under section 59; or
Victorian Legislation and Parliamentary Documents
(d) 3 hours after the driving, being an
occupant of or being in charge of the
5 motor vehicle--
whichever is the sooner.
Example
A person may be required to go to a police station, a
public building, a booze bus or a police car to provide
10 a sample of oral fluid under this section.
(3) A member of the police force may require
any person who is required to undergo an
assessment of drug impairment under section
55A or to furnish a sample of breath for
15 analysis by a breath analysing instrument
under section 55 to provide a sample of oral
fluid for testing by a prescribed device and,
if necessary, analysis by a properly qualified
analyst within the meaning of section 57B
20 and may, for that purpose, require the person
to remain at the place at which the person is
required to remain for the purposes of the
assessment or furnishing the sample of
breath until--
25 (a) the person has provided the sample of
oral fluid and any further sample
required to be provided under sub-
section (5), the sample has been tested
by a prescribed device and the person
30 has been given (if necessary) a part of
the sample under sub-section (11) and
complied with any requirement made of
him or her under section 59 and the
assessment has been carried out or the
35 sample of breath has been furnished (as
the case requires); or
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(b) 3 hours after the driving, being an
occupant of or being in charge of the
motor vehicle--
Victorian Legislation and Parliamentary Documents
whichever is the sooner.
5 (4) The provision of a sample of oral fluid under
this section must be carried out in
accordance with the prescribed procedure.
(5) The person who required a sample of oral
fluid to be provided under sub-section (2) or
10 (3) may require the person who provided it
to provide one or more further samples if it
appears to him or her that the prescribed
device is incapable of testing for the
presence in the sample, or each of the
15 samples, previously provided of a prescribed
illicit drug because the amount of sample
provided was insufficient or because of a
power failure or malfunctioning of the
device or for any other reason whatsoever.
20 (6) Only a member of the police force or an
officer of the Corporation or of the
Department of Infrastructure authorised in
writing by the Chief Commissioner of
Police, the Corporation or the Secretary, as
25 the case requires, for the purposes of this
section may carry out the procedure for the
provision of a sample of oral fluid under this
section.
(7) The Chief Commissioner of Police may only
30 authorise a member of the police force, and
the Corporation or the Secretary may only
authorise an enforcement officer, for the
purposes of this section if satisfied that the
member or officer (as the case requires) has
35 the appropriate training to carry out the
prescribed procedure for the provision of a
sample of oral fluid under this section.
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(8) A prescribed device may be comprised of a
collection unit and a testing unit and one or
more other parts.
Victorian Legislation and Parliamentary Documents
(9) A person required to provide a sample of
5 oral fluid under this section must do so by
placing the prescribed device, or the
collection unit of the device, into his or her
mouth and chewing or sucking on it until the
authorised officer is satisfied that a sufficient
10 sample of oral fluid has been captured by the
device or unit.
(10) A person is not obliged to provide a sample
of oral fluid under this section if more than
3 hours have passed since the person last
15 drove, was an occupant of or was in charge
of a motor vehicle.
(11) If a test by a prescribed device of a sample of
oral fluid provided under this section
indicates, in the opinion of the authorised
20 officer who carried out the procedure in the
course of which the sample was provided,
that the person's oral fluid contains a
prescribed illicit drug, the authorised officer
must deliver a part of the sample to the
25 member of the police force or the
enforcement officer who required the sample
to be provided and another part to the person
by whom the sample was provided.
(12) A person must not be convicted or found
30 guilty of refusing to provide a sample of oral
fluid in accordance with this section if he or
she satisfies the court that there was some
reason of a substantial character for the
refusal, other than a desire to avoid
35 providing information which might be used
against him or her.
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(13) The person who required a sample of oral
fluid to be provided under sub-section (2) or
(3) may require that person to allow a
Victorian Legislation and Parliamentary Documents
registered medical practitioner or an
5 approved health professional nominated by
the person who required the sample to take
from him or her a sample of that person's
blood for analysis if it appears to him or her
that--
10 (a) that person is unable to furnish the
required sample of oral fluid on
medical grounds or because of some
physical disability or condition; or
(b) the prescribed device is incapable of
15 testing for the presence in the sample of
a prescribed illicit drug for any reason
whatsoever--
and for that purpose may further require that
person to accompany a member of the police
20 force to a place where the sample of blood is
to be taken and to remain there until the
sample has been taken or until 3 hours after
the driving, being an occupant of or being in
charge of the motor vehicle, whichever is the
25 sooner.
(14) The registered medical practitioner or
approved health professional who takes a
sample of blood under sub-section (13) must
deliver a part of the sample to the person
30 who required it to be taken and another part
to the person from whom it was taken.
(15) A person who allows the taking of a sample
of his or her blood in accordance with sub-
section (13) must not be convicted or found
35 guilty of refusing to provide a sample of oral
fluid in accordance with this section.
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(16) A person must not hinder or obstruct a
registered medical practitioner or an
approved health professional attempting to
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take a sample of the blood of any other
5 person in accordance with sub-section (13).
Penalty: Penalty applying to this sub-
section: 12 penalty units.
(17) No action lies against a registered medical
practitioner or an approved health
10 professional in respect of anything properly
and necessarily done by the practitioner or
approved health professional in the course of
taking any sample of blood which the
practitioner or approved health professional
15 believed on reasonable grounds was allowed
to be taken under sub-section (13).
(18) A person who is required under this section
to provide a sample of oral fluid may,
immediately after being given a part of the
20 sample under sub-section (11), request the
person making the requirement to arrange for
the taking in the presence of any member of
the police force (or, if the requirement for the
provision of the sample was made by an
25 enforcement officer, any member of the
police force or any enforcement officer) of a
sample of that person's blood for analysis at
that person's own expense by a registered
medical practitioner or an approved health
30 professional nominated by the member of the
police force or the enforcement officer in
whose presence the sample is taken.
(19) A part of a sample of blood taken under sub-
section (18) must be delivered to the person
35 who required the oral fluid sample to be
provided under this section.
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(20) Nothing in sub-section (18) relieves a person
from any penalty under section 49(1)(eb) for
refusing to provide a sample of oral fluid.
Victorian Legislation and Parliamentary Documents
(21) Evidence derived from a sample of oral fluid
5 provided in accordance with a requirement
made under this section is not rendered
inadmissible by a failure to comply with a
request under sub-section (18) if reasonable
efforts were made to comply with the
10 request.
(22) In any proceeding under this Act--
(a) the statement of any officer of the
Corporation or of the Department of
Infrastructure that on a particular date
15 he or she was authorised under section
55D(2) for the purposes of section 55D;
or
(b) a certificate purporting to be issued by
the Corporation or signed by the
20 Secretary, as the case requires,
certifying that a particular officer of the
Corporation or of the Department of
Infrastructure named in it is authorised
under section 55D(2) for the purposes
25 of section 55D; or
(c) the statement of any member of the
police force or officer of the
Corporation or of the Department of
Infrastructure that on a particular date
30 he or she was authorised under sub-
section (6) for the purposes of this
section; or
(d) a certificate purporting to be signed by
the Chief Commissioner of Police,
35 issued by the Corporation or signed by
the Secretary, as the case requires,
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certifying that a particular member of
the police force or officer of the
Corporation or of the Department of
Victorian Legislation and Parliamentary Documents
Infrastructure named in it is authorised
5 under sub-section (6) for the purposes
of this section--
is admissible in evidence and, in the absence
of evidence to the contrary, is proof of the
authority of that officer or member.'.
10 14. Evidentiary provisions--blood tests
(1) In section 57(9) of the Principal Act, after "55B"
insert ", 55E(13)".
(2) After section 57(9) of the Principal Act insert--
"(9A) Without limiting section 56(6), evidence of a
15 kind permitted to be given by sub-section (2)
in legal proceedings of a kind referred to in
sub-section (2)(a), (ab), (b), (c) or (d) is
inadmissible as evidence in any other legal
proceedings except proceedings for the
20 purposes of the Accident Compensation
Act 1985 or the Transport Accident Act
1986.".
15. Evidentiary provisions--urine tests
(1) In section 57A(1) of the Principal Act, after the
25 definition of "approved expert" insert--
' "prescribed legal proceeding" means--
(a) a trial for murder or manslaughter or
for negligently causing serious injury
arising out of the driving of a motor
30 vehicle; or
(b) a trial or hearing for an offence against
Subdivision (4) of Division 1 of Part I
of the Crimes Act 1958 arising out of
the driving of a motor vehicle; or
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(c) a trial or hearing for an offence against
section 318(1) of the Crimes Act 1958;
or
Victorian Legislation and Parliamentary Documents
(d) a hearing for an offence against
5 section 49(1) of this Act; or
(e) any proceedings conducted by a
coroner;'.
(2) In section 57A(2) of the Principal Act, for "on a
hearing for an offence against section 49(1)"
10 substitute "in a prescribed legal proceeding".
(3) After section 57A(10) of the Principal Act
insert--
"(11) Evidence of a kind permitted to be given by
sub-section (2) in a prescribed legal
15 proceeding is inadmissible as evidence in
any other legal proceedings.".
16. New section 57B inserted
After section 57A of the Principal Act insert--
'57B. Evidentiary provisions--oral fluid tests
20 (1) In this section--
"approved analyst" means a person who
has been approved by Order of the
Governor in Council published in the
Government Gazette as a properly
25 qualified analyst for the purposes of
this section;
"properly qualified analyst" means--
(a) an approved analyst; or
(b) a person who is considered by the
30 court hearing the charge for the
offence to have scientific
qualifications, training and
experience that qualifies him or
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her to carry out the analysis and to
express an opinion as to the facts
and matters contained in a
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certificate under sub-section (4).
5 (2) If a question as to the presence of a
prescribed illicit drug in the body of a person
at any time is relevant--
(a) on a trial for murder or manslaughter or
for negligently causing serious injury
10 arising out of the driving of a motor
vehicle; or
(b) on a trial or hearing for an offence
against Subdivision (4) of Division 1 of
Part I of the Crimes Act 1958 arising
15 out of the driving of a motor vehicle; or
(c) on a trial or hearing for an offence
against section 318(1) of the Crimes
Act 1958; or
(d) on a hearing for an offence against
20 section 49(1) of this Act; or
(e) in any proceedings conducted by a
coroner--
then, without affecting the admissibility of
any evidence which might be given apart
25 from the provisions of this section, evidence
may be given--
(f) of the providing by that person, after
that person drove or was in charge of a
motor vehicle, of a sample of oral fluid
30 under section 55E;
(g) of the analysis of that sample of oral
fluid by a properly qualified analyst
within twelve months after it was taken;
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(h) of the presence of a prescribed illicit
drug in that sample of oral fluid at the
time of analysis.
Victorian Legislation and Parliamentary Documents
(3) A certificate containing the prescribed
5 particulars purporting to be signed by the
person who carried out the procedure in the
course of which the sample of oral fluid was
provided is admissible in evidence in any
hearing referred to in sub-section (2) and, in
10 the absence of evidence to the contrary, is
proof of the facts and matters contained in it.
(4) A certificate containing the prescribed
particulars purporting to be signed by an
approved analyst as to the presence in any
15 sample of oral fluid analysed by the analyst
of a substance that is a prescribed illicit drug
is admissible in evidence in any hearing
referred to in sub-section (2) and, in the
absence of evidence to the contrary, is proof
20 of the facts and matters contained in it.
(5) A certificate given under this section must
not be tendered in evidence at a hearing
referred to in sub-section (2) without the
consent of the accused unless a copy of the
25 certificate is proved to have been served on
the accused more than 10 days before the
day on which the certificate is tendered in
evidence.
(6) A copy of a certificate given under this
30 section may be served on the accused by--
(a) delivering it to the accused personally;
or
(b) leaving it for the accused at his or her
last or most usual place of residence or
35 of business with a person who
apparently resides or works there and
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who apparently is not less than 16 years
of age.
Victorian Legislation and Parliamentary Documents
(7) An affidavit or statutory declaration by a
person who has served a copy of the
5 certificate on the accused is admissible in
evidence at a hearing referred to in sub-
section (2) and, as to the service of the copy,
is proof, in the absence of evidence to the
contrary, of the facts and matters deposed to
10 in the affidavit or stated in the statutory
declaration.
(8) An accused who has been served with a copy
of a certificate given under this section may,
with the leave of the court and not otherwise,
15 require the person who has given the
certificate or any person employed, or
engaged to provide services at, the place at
which the sample of oral fluid was provided,
to attend at all subsequent proceedings for
20 cross-examination and that person must
attend accordingly.
(9) The court must not grant leave under sub-
section (8) unless it is satisfied--
(a) that the informant has been given at
25 least 7 days' notice of the hearing of the
application for leave and has been
given an opportunity to make a
submission to the court; and
(b) that--
30 (i) there is a reasonable possibility
that the oral fluid referred to in a
certificate given by an analyst
under sub-section (4) was not that
of the accused; or
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(ii) there is a reasonable possibility
that the oral fluid referred to in a
certificate given under sub-section
Victorian Legislation and Parliamentary Documents
(3) had become contaminated in
5 such a way that a drug found on
analysis would not have been
found had the oral fluid not been
contaminated in that way; or
(iii) there is a reasonable possibility
10 that the sample was not taken
within 3 hours after the person
who provided the sample drove or
was in charge of the vehicle; or
(iv) for some other reason the giving
15 of evidence by the person who
gave the certificate would
materially assist the court to
ascertain relevant facts.
(10) An accused who has been served with a copy
20 of a certificate given under this section may
not require the person who has given the
certificate or any person employed, or
engaged to provide services at, the place at
which the sample of oral fluid was provided,
25 to attend the court on the hearing of an
application for leave under sub-section (8).
(11) Evidence of a kind permitted to be given by
sub-section (2) in legal proceedings of a kind
referred to in sub-section (2)(a), (b), (c), (d)
30 or (e) is inadmissible as evidence in any
other legal proceedings.'.
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17. Evidentiary provisions--breath tests
In section 58(1) of the Principal Act--
Victorian Legislation and Parliamentary Documents
(a) in paragraph (c), for "Act--" substitute
"Act; or";
5 (b) after paragraph (c) insert--
"(d) in any proceedings conducted by a
coroner--".
18. New section 58B inserted
After section 58A of the Principal Act insert--
10 '58B. Prohibited analysis
(1) In this section--
"DNA database" has the meaning given by
section 464(2) of the Crimes Act 1958;
"Part 5 sample" means a sample of blood,
15 urine or oral fluid taken from, or
furnished or provided by, a person
under this Part;
"permitted purpose", in relation to an
analysis of a Part 5 sample, means the
20 purpose of determining--
(a) whether alcohol or any other drug
is present in the sample; or
(b) the level of concentration in which
alcohol or any other drug is
25 present in the sample;
"prohibited analysis", in relation to a Part 5
sample, means analysis of the sample
for a purpose other than the permitted
purpose.
30 Example
Deriving a DNA profile from the sample is a purpose
for which analysis is prohibited.
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(2) A person who intentionally or recklessly--
(a) supplies a Part 5 sample, or causes a
Victorian Legislation and Parliamentary Documents
Part 5 sample to be supplied, to a
person for prohibited analysis; or
5 (b) carries out a prohibited analysis of a
Part 5 sample; or
(c) includes, or causes the inclusion of,
information derived from a prohibited
analysis on a DNA database kept under
10 a law of this State or the
Commonwealth or of another State or a
Territory--
is guilty of an offence and liable to
imprisonment for a term of not more than
15 12 months or to a fine of not more than
120 penalty units.'.
19. Power to prevent driving by incapable persons
After section 62(1) of the Principal Act insert--
"(1A) Without limiting the grounds on which a
20 member of the police force may form the
opinion that a person is, by reason of his or
her physical or mental condition, incapable
of having proper control of a motor vehicle,
the fact that--
25 (a) the person has furnished a sample of
breath for analysis by a breath
analysing instrument under section 55
and the result of the analysis as
recorded or shown by the breath
30 analysing instrument indicates that the
prescribed concentration of alcohol or
more than the prescribed concentration
of alcohol is present in his or her
breath; or
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(b) a test by a prescribed device under
section 55E of a sample of oral fluid
provided under that section indicates, in
Victorian Legislation and Parliamentary Documents
the opinion of the person who carried
5 out the test, that the person's oral fluid
contains a prescribed illicit drug--
is of itself a sufficient ground for forming
that opinion.".
20. Drug-driving infringements
10 (1) In section 88(1A) of the Principal Act, after
"drink-driving infringement," insert "a drug-
driving infringement".
(2) Insert the following heading to section 89A of the
Principal Act--
15 "Effect of drink-driving infringements, drug-
driving infringements and excessive speed
infringements".
(3) In section 89A(1) of the Principal Act, after
"infringements" (where first occurring) insert
20 ", drug-driving infringements".
(4) In section 89A(2) of the Principal Act, after
"drink-driving infringement" insert ", drug-
driving infringement".
(5) In section 89A(7) of the Principal Act, after
25 "drink-driving infringement" insert "or a drug-
driving infringement".
(6) In section 89B(1) of the Principal Act, after
"drink-driving infringement" insert ", a drug-
driving infringement".
30 (7) In section 89E(1), (2), (3) and (4) of the Principal
Act, after "drink-driving infringement" insert
", a drug-driving infringement".
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21. Supreme Court--limitation of jurisdiction
At the end of section 94B of the Principal Act
Victorian Legislation and Parliamentary Documents
insert--
"(2) It is the intention of section 55E(17) to alter
5 or vary section 85 of the Constitution Act
1975.".
22. Regulations
In Schedule 2 to the Principal Act--
(a) for "Alcohol" (where appearing before
10 item 50) substitute "Alcohol or Other
Drugs";
(b) after item 51 insert--
"51A. Devices for the purposes of sections 55D and
55E and the procedures to be employed in
15 obtaining samples of oral fluid or carrying out
tests under those sections.
51B. The methods and conditions to be observed by
persons carrying out procedures under section
55E for collecting oral fluid samples.
20 51C. The delivering of portions of samples of oral
fluid to the people who provided them and to
the persons who required them to be
provided.";
(c) in items 55A, 56 and 57, for "or urine"
25 substitute ", urine or oral fluid".
23. Sunsetting of drug-driving provisions
(1) In section 3(1) of the Principal Act--
(a) the definitions of "drug-driving
infringement", "prescribed concentration of
30 drugs" and "prescribed illicit drug" are
repealed;
(b) in paragraph (b) of the definition of "drink-
driving infringement", for ", (1B) or (1E)"
substitute "or (1B)".
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(c) in the definition of "traffic infringement",
paragraph (f) is repealed.
Victorian Legislation and Parliamentary Documents
(2) In section 47 of the Principal Act--
(a) in paragraph (c), for "alcohol; and"
5 substitute "alcohol.";
(b) paragraph (d) is repealed.
(3) Section 48(1)(ac) of the Principal Act is repealed.
(4) Section 48(1B) of the Principal Act is repealed.
(5) Section 49(1)(bb) and (eb) of the Principal Act is
10 repealed.
(6) In section 49(1)(g) of the Principal Act--
(a) for ", 55B, 55E or 56" substitute "or 56";
(b) in sub-paragraph (ii), for "motor vehicle; or"
substitute "motor vehicle.".
15 (7) Section 49(1)(h) and (i) of the Principal Act is
repealed.
(8) Section 49(3AAA) of the Principal Act is
repealed.
(9) In section 49(5) of the Principal Act, for "(g), (h)
20 or (i)" substitute "(g)".
(10) Section 49(6A) of the Principal Act is repealed.
(11) Section 49(9) of the Principal Act is repealed.
(12) Section 50(1E) of the Principal Act is repealed.
(13) In column 1 of the Table in section 50AA of the
25 Principal Act, for ", (1B) and (1E)" substitute
"and (1B)".
(14) In section 50AAA(4) of the Principal Act, omit
", (bb), (h) or (i)".
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(15) In section 50A(1A) of the Principal Act--
(a) omit "(bb),";
Victorian Legislation and Parliamentary Documents
(b) for ", (ea), (h) or (i)" substitute "or (ea)".
(16) In section 50A(2) of the Principal Act--
5 (a) omit "(bb),";
(b) for ", (g), (h) or (i)" substitute "or (g)".
(17) In section 53(1)(b) of the Principal Act, after
"preliminary" insert "breath".
(18) Substitute the following heading to section 54 of
10 the Principal Act--
"Preliminary breath testing stations".
(19) In section 54(1), (2), (3) and (4) of the Principal
Act, before "testing" insert "breath".
(20) In section 54(2)(a) of the Principal Act, for "or
15 preliminary oral fluid tests" substitute "in quick
succession".
(21) In section 55A(1)(b) of the Principal Act, after
"preliminary" insert "breath".
(22) Sections 55D and 55E of the Principal Act are
20 repealed.
(23) In section 57(9) of the Principal Act, omit
", 55E(13)".
(24) Section 57B of the Principal Act is repealed.
(25) In section 62(1A) of the Principal Act--
25 (a) in paragraph (a), for "breath; or" substitute
"breath--";
(b) paragraph (b) is repealed.
(26) In section 88(1A) of the Principal Act, omit "a
drug-driving infringement".
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(27) Substitute the following heading to section 89A
of the Principal Act--
Victorian Legislation and Parliamentary Documents
"Effect of drink-driving infringements and
excessive speed infringements".
5 (28) In section 89A(1) of the Principal Act, omit
", drug-driving infringements".
(29) In section 89A(2) of the Principal Act, omit ",
drug-driving infringement".
(30) In section 89A(7) of the Principal Act, omit
10 "or a drug-driving infringement".
(31) In section 89B(1) of the Principal Act, omit ", a
drug-driving infringement".
(32) In section 89E(1), (2), (3) and (4) of the Principal
Act, omit ", a drug-driving infringement".
15 (33) In Schedule 2 to the Principal Act--
(a) for "Alcohol or Other Drugs" (where
appearing before item 50) substitute
"Alcohol";
(b) items 51A, 51B and 51C are repealed;
20 (c) in items 55A, 56 and 57, for ", urine or oral
fluid" substitute "or urine".
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Endnotes
Act No.
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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