Victorian Consolidated Legislation

Road Safety Act 1986 - SECT 55

Breath analysis

55. Breath analysis





(1) If a person undergoes a preliminary breath test when required by a member
of the police force or an officer of the Corporation or of the Department of
Infrastructure under section 53 to do so and-









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





   (b)  the person, in the opinion of the member or officer, refuses or fails
        to carry out the test in the manner specified in section 53(3)-

any member of the police force or, if the requirement for the preliminary
breath test was made by an officer of the Corporation or of the Department of
Infrastructure, any member of the police force or any officer of the
Corporation or of the Department of Infrastructure may require the person to
furnish a sample of breath for analysis by a breath analysing instrument and
for that purpose may further require the person to accompany a member of the
police force or an officer of the Corporation or of the Department of
Infrastructure authorised in writing by the Corporation or the Secretary of
the Department of Infrastructure, as the case requires, for the purposes of
section 53 to a place or vehicle where the sample of breath is to be furnished
and to remain there until the person has furnished the sample of breath and
any further sample required to be furnished under subsection (2A) and been
given the certificate referred to in subsection (4) or until 3 hours after the
driving, being an occupant of or being i n charge of the motor vehicle,
whichever is sooner. Example A person may be required to go to a police
station, a public building, a booze bus or a police car to furnish a sample of
breath.

(2) A member of the police force may require any person whom that member
reasonably believes to have offended against section 49(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
53) and for that purpose may further require the person to accompany a member
of the police force to a place or vehicle where the sample of breath is to be
furnished and to remain there until the person has furnished the sample of
breath and any further sample required to be furnished under subsection (2A)
and been given the certificate referred to in subsection (4) or until 3 hours
after the driving, being an occupant of or being in charge of the motor
vehicle, whichever is sooner.

Example A person may be required to go to a police station, a public building,
a booze bus or a police car to furnish a sample of breath.

(2AA) A member of the police force may require any person who is required to
undergo a drug assessment under section 55A to furnish a sample of breath for
analysis by a breath analysing instrument 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 drug assessment until-

   (a)  the person has furnished the sample of breath and any further sample
        required to be furnished under subsection (2A) and been given the
        certificate referred to in subsection (4) and the drug assessment has
        been carried out; or



   (b)  3 hours after the driving, being an occupant of or being in charge of
        the motor vehicle-

whichever is the sooner.

(2A) The person who required a sample of breath under subsection (1), (2) or
(2AA) 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
containing the prescribed particulars produced by the breath analysing
instrument of the concentration of alcohol indicated by the analysis to be
present in his or her breath8.



* * * * *





(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 drove, was an occupant
of or was in charge of a motor vehicle.



* * * * *



(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),
(2AA) or (2A) from a person may require that person to allow a registered9
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 that10-

   (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 the driving,
being an occupant of or being in charge of the motor vehicle, whichever is
sooner.

(9B) The registered11 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 taken12.

(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 registered13 medical practitioner
or an approved health professional attempting to take a sample of the blood of
any other person in accordance with subsection (9A)14.

Penalty applying to this subsection: 12 penalty units.

(9E) No action lies against a registered15 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)16.

(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 49(1)(e) for refusing to furnish a sample of breath.

(13) 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.





(14) 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 49(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 17the 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.