Victorian Consolidated Legislation

Road Safety Act 1986 - SECT 55E

Oral fluid testing and analysis

55E. Oral fluid testing and analysis



(1) In this section-

authorised officer means a member of the police force or an officer of the
Corporation or of the Department of Infrastructure authorised in writing under
subsection (6) by the Chief Commissioner of Police, the 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
Infrastructure authorised under section 55D(2) for the purposes of section
55D.





(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 enforcement officer
and-

   (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

   (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 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 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
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 provided and to remain
there until-

   (c)  the person has provided the sample and any further sample required to
        be provided under subsection (5), the sample has been tested by a
        prescribed device and the person has been given (if necessary) a part
        of the sample under subsection (11) and complied with any requirement
        made of him or her under section 59; or



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

   (a)  the person has provided the sample of oral fluid and any further
        sample required to be provided under subsection (5), the sample has
        been tested by a prescribed device and the person has been given (if
        necessary) a part of the sample under subsection (11) and complied
        with any requirement made of him or her under section 59 and the
        assessment has been carried out or the sample of breath has been
        furnished (as the case requires); or

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

whichever is the sooner.

(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
subsection (2) or (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 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.

(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 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 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 the appropriate training to carry out the
prescribed procedure for the provision of a sample of oral fluid under this
section.

(8) A prescribed device may be comprised of a collection unit and a testing
unit and one or more other parts.

(9) A person required to provide a sample of 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 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 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 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 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 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 providing information which might be
used against him or her.

(13) The person who required a sample of oral fluid to be provided under
subsection (2) or (3) may require that person to allow a registered medical
practitioner or an 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-

   (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 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 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 sooner.

(14) The registered medical practitioner or approved health professional who
takes a sample of blood under subsection (13) 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.

(15) A person who allows the taking of a sample of his or her blood in
accordance with subsection (13) must not be convicted or found guilty of
refusing to provide a sample of oral fluid in accordance with this section.

(16) 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 (13).

Penalty: Penalty applying to this subsection: 12 penalty units.

(17) 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 (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 sample under subsection
(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 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 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 subsection (18) must be delivered
to the person who required the oral fluid sample to be provided under this
section.

(20) Nothing in subsection (18) relieves a person from any penalty under
section 49(1)(eb) for refusing to provide a sample of oral fluid.

(21) Evidence derived from a sample of oral fluid provided in accordance with
a requirement made under this section is not rendered inadmissible by a
failure to comply with a request under subsection (18) if reasonable efforts
were made to comply with the 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 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 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 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 he or she was authorised under subsection (6) for the
        purposes of this section; or

   (d)  a certificate purporting to be signed by the Chief Commissioner of
        Police, issued by the Corporation or signed by the Secretary, as the
        case requires, certifying that a particular member of the police force
        or officer of the Corporation or of the Department of Infrastructure
        named in it is authorised under subsection (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.