Victorian Consolidated Legislation

Marine Act 1988 - SECT 28

Offences involving alcohol or other drugs

28. Offences involving alcohol or other drugs



(1) A person is guilty of an offence if-

   (a)  the person is in charge of a vessel under way while under the
        influence of alcohol or any other drug to such an extent as to be
        incapable of having proper control of the vessel; or

   (b)  the person is in charge of a vessel under way while the prescribed
        concentration of alcohol or more than the prescribed concentration of
        alcohol is present in his or her blood or breath; or

   (c)  the person refuses to undergo a preliminary breath test in accordance
        with section 29 when required under that section to do so; or

   (d)  the person refuses to comply with a requirement made under section
        31(1), (2), (2A) or (9A); or

   (e)  within 3 hours after being in charge of a vessel under way, the person
        furnishes a sample of breath for analysis by a breath analysing
        instrument under section 31 and-

   (i)  the result of the analysis as recorded or shown by the breath
        analysing instrument indicates that more than the prescribed
        concentration of alcohol is present in his or her breath; and

   (ii) the concentration of alcohol indicated by the analysis to be present
        in his or her breath was not due solely to the consumption of alcohol
        after being in charge of the vessel under way; or

   (f)  the person has had a sample of blood taken from him or her in
        accordance with section 31 or 31A within 3 hours after being in charge
        of a vessel under way and-

   (i)  the sample has been analysed within 12 months after it was taken by a
        properly qualified analyst within the meaning of section 32 and the
        analyst has found that at the time of analysis the prescribed
        concentration of alcohol or more than the prescribed concentration of
        alcohol was present in that sample; and

   (ii) the concentration of alcohol found by the analyst to be present in
        that sample was not due solely to the consumption of alcohol after
        being in charge of the vessel under way.

(1A) A person may be convicted or found guilty of an offence under paragraph
(c) or (d) of subsection (1) even if-

   (a)  in the case of an offence under paragraph (c), a prescribed device was
        not presented to the person at the time of the making of the
        requirement; and

   (b)  in the case of an offence under paragraph (d)-

   (i)  a breath analysing instrument was not available at the place where the
        requirement was made at the time it was made; and

   (ii) a person authorised to operate a breath analysing instrument was not
        present at the place where the requirement was made at the time it was
        made; and

   (iii) the person requiring a sample of blood had not nominated a registered
        medical practitioner or approved health professional to take the
        sample; and

   (iv) a registered medical practitioner or approved health professional was
        not present at the place where the requirement was made at the time it
        was made.

(1B) To avoid doubt, in proceedings for an offence under paragraph (d) of
subsection (1) a state of affairs or circumstance referred to in subsection
(1A)(b)(i) or (ii) is not a reason of a substantial character for a refusal
for the purposes of section 31(9).

(2) A person who is guilty of an offence under subsection (1)(a), other than
an accompanying operator offence, is liable-

   (a)  for a first offence, to a fine of not more than 25 penalty units or to
        imprisonment for not more than 3 months; and

   (b)  for a subsequent offence, to imprisonment for not more than 12 months.

(3) A person who is guilty of an offence under subsection (1)(b), (c), (d),
(e) or (f), other than an accompanying operator offence, is liable-

   (a)  for a first offence, to a fine of not more than 12 penalty units; and

   (b)  for a subsequent offence, to a fine of not more than 25 penalty units
        or to imprisonment for not more than 3 months.

(3A) A person who is guilty of an accompanying operator offence is liable to a
fine of not more than 5 penalty units.

(4) It is a defence to a charge under subsection (1)(e) for the person charged
to prove that the breath analysing instrument used was not on that occasion in
proper working order or properly operated.

(5) It is a defence to a charge under subsection (1)(f) for the person charged
to prove that the result of the analysis was not a correct result.

(5A) In any proceedings for an offence under paragraph (e) or (f) of
subsection (1) evidence as to the effect of the consumption of alcohol on the
defendant is admissible for the purpose of rebutting the presumption created
by section 27(1A) but is otherwise inadmissible.

(6) Nothing in this section applies to a master unless the master, at the time
when he or she was in charge of the vessel, actually had charge of the vessel.

(7) If a vessel is under a pilot, the pilot (and not the master) is in charge
of the vessel for the purposes of this section.

(8) On convicting a person, or finding a person guilty, of an offence under
subsection (1) the court must cause to be entered in the records of the court-

   (a)  in the case of an offence under subsection (1)(b), the level of
        concentration of alcohol found to be present in that person's blood or
        breath; and

   (b)  in the case of an offence under subsection (1)(e), the level of
        concentration of alcohol found to be recorded or shown by the breath
        analysing instrument; and

   (c)  in the case of an offence under subsection (1)(f), the level of
        concentration of alcohol found to be present in the sample of blood.