Victorian Consolidated Legislation

Marine Act 1988 - SECT 31

Breath analysis

31. Breath analysis



(1) If a person undergoes a preliminary breath test when required to do so by
a member of the police force under section 29 and-



   (a)  the test in the opinion of the member in whose presence it is made
        indicates that the person's breath contains alcohol; or



   (b)  the person, in the opinion of the member, refuses or fails to carry
        out the test in the manner specified in section 29(2)-

any member of the police force may require the person to furnish a sample of
breath for analysis by a breath analysing instrument and for that purpose may
also require the person to accompany a member of the police force to a police
station or other place where the sample of breath is to be furnished and to
remain there until the person has furnished the sample of breath and been
given the certificate referred to in subsection (4) or until 3 hours after the
person was in charge of or was an occupant of a vessel under way, whichever is
sooner.

(2) A member of the police force may require any person whom that member
reasonably believes to have offended against section 28(1)(a) or (b) to
furnish a sample of breath for analysis by a breath analysing instrument
(instead of undergoing a preliminary breath test in accordance with section
29) and for that purpose may also require the person to accompany a member of
the police force to a police station or other place where the sample of breath
is to be furnished and to remain there until the person has furnished the
sample of breath and been given the certificate referred to in subsection (4)
or until 3 hours after the person was in charge of or was an occupant of a
vessel under way, whichever is sooner.

(2A) The person who required a sample of breath under subsection (1) or (2)
may require the person who furnished it to furnish one or more further samples
if it appears to him or her that the breath analysing instrument is incapable
of measuring the concentration of alcohol present in the sample, or each of
the samples, previously furnished in grams per 210 litres of exhaled air
because the amount of sample furnished was insufficient or because of a power
failure or malfunctioning of the instrument or for any other reason
whatsoever.





(3) A breath analysing instrument must be operated by a person authorised to
do so by the Chief Commissioner of Police.

(4) As soon as practicable after a sample of a person's breath is analysed by
means of a breath analysing instrument the person operating the instrument
must sign and give to the person whose breath has been analysed a certificate
in the prescribed form produced by the breath analysing instrument of the
concentration of alcohol indicated by the analysis to be present in his or her
breath.



* * * * *





(5) A person who furnishes a sample of breath under this section must do so by
exhaling continuously into the instrument to the satisfaction of the person
operating it.

(6) A person is not obliged to furnish a sample of breath under this section
if more than 3 hours have passed since the person last was in charge of or was
an occupant of a vessel under way.



* * * * *







* * * * *





(9) A person must not be convicted or found guilty of refusing to furnish
under this section a sample of breath for analysis 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 providing information which might be used against
him or her.

(9A) The person who required a sample of breath under subsection (1), (2) or
(2A) from a person may require that person to allow a registered medical
practitioner or an approved health professional nominated by the person
requiring 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-

   (a)  that person is unable to furnish the required sample of breath on
        medical grounds or because of some physical disability; or

   (b)  the breath analysing instrument is incapable of measuring in grams per
        210 litres of exhaled air the concentration of alcohol present in any
        sample of breath furnished by that person for any reason whatsoever-

and for that purpose may further require that person to accompany a member of
the police force to a place where the sample is to be taken and to remain
there until the sample has been taken or until 3 hours after being in charge
of or being an occupant of a vessel under way, whichever is sooner.

(9B) The registered medical practitioner or approved health professional who
takes a sample of blood under subsection (9A) must deliver a part of the
sample to the person who required it to be taken and another part to the
person from whom it was taken.

(9C) A person who allows the taking of a sample of his or her blood in
accordance with subsection (9A) must not be convicted or found guilty of
refusing to furnish under this section a sample of breath for analysis.

(9D) A person must not hinder or obstruct a registered medical practitioner or
an approved health professional attempting to take a sample of the blood of
any other person in accordance with subsection (9A).

Penalty applying to this subsection: 12 penalty units.

(9E) No action lies against a registered medical practitioner or an approved
health 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
believed on reasonable grounds was allowed to be taken under subsection (9A).

(10) A person who is required under this section to furnish a sample of breath
for analysis may, immediately after being given the certificate referred to in
subsection (4), request the person making the requirement to arrange for the
taking in the presence of a member of the police force 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 professional nominated by the
member of the police force.

(11) A part of a sample of blood taken under subsection (10) must be delivered
to the person who required the sample of breath under this section.





(12) Nothing in subsection (10) relieves a person from any penalty under
section 28(1)(d) for refusing to furnish a sample of breath.

(12A) Evidence derived from a sample of breath furnished in accordance with a
requirement made under this section is not rendered inadmissible by a failure
to comply with a request under subsection (10) if reasonable efforts were made
to comply with the request.

(12B) If the question whether a breath analysing instrument was incapable of
measuring in grams per 210 litres of exhaled air the concentration of alcohol
present in any sample of breath furnished by a person is relevant on a hearing
for an offence against section 28(1) then, without affecting the admissibility
of any evidence which might be given apart from the provisions of this
subsection, a document-

   (a)  purporting to be a print-out produced by that instrument in respect of
        that sample; and

   (b)  purporting to be signed by the person who operated the instrument-

is admissible in evidence and, in the absence of evidence to the contrary, is
proof of the facts and matters contained in it.

(12C) A document referred to in subsection (12B) does not cease to be
admissible in evidence or, in the absence of evidence to the contrary, to be
proof of the facts and matters contained in it only because of the fact that
it refers to the Road Safety Act 1986 and not to the Marine Act 1988 and the
reference to the Road Safety Act 1986 in that document and in each other
document produced by the breath analysing instrument in respect of the sample
of breath must be construed for all purposes as a reference to the
Marine Act 1988.

(13) An approval or authority given under or for the purposes of this section
by the Chief Commissioner of Police may be revoked at any time in the manner
in which it was given and on revocation ceases to have any effect.