Victorian Consolidated Legislation

Rail Safety Act 2006 - SECT 77

Preliminary breath tests

77. Preliminary breath tests



(1) A transport safety officer may at any time require a rail safety worker
whom he or she believes on reasonable grounds is about to carry out rail
safety work to undergo a preliminary breath test by a prescribed device before
carrying out that work.

(2) A transport safety officer or, subject to subsection (3), a member of the
police force may require-

   (a)  a rail safety worker whom he or she believes on reasonable grounds-

   (i)  is carrying out rail safety work; and

   (ii) has alcohol present in his or her breath; or

   (b)  a rail safety worker whom he or she believes on reasonable grounds has
        within the last 3 preceding hours carried out rail safety work on a
        railway when an accident or irregular incident occurred involving the
        rail safety worker-

to undergo a preliminary breath test by a prescribed device.

(3) A member of the police force only has power to require a rail safety
worker to undergo a preliminary breath test under subsection (2)(b) in the
case of an irregular incident if-

   (a)  he or she has contacted a person nominated for the purposes of this
        provision by the person or body responsible for the operation of the
        railway; and

   (b)  the person contacted has confirmed that an irregular incident did
        occur and has agreed that it is appropriate to conduct a preliminary
        breath test; and

   (c)  that person is unable or likely to be unable, after making all
        reasonable efforts, to arrange for a preliminary breath test to be
        conducted on the rail safety worker by a transport safety officer
        within the 3 hours period.

(4) A rail safety worker required to undergo a preliminary breath test must do
so by exhaling continuously into the device to the satisfaction of the
transport safety officer or member of the police force.

(5) A rail safety worker is not obliged to undergo a preliminary breath test
if more than 3 hours have passed since the rail safety worker last carried out
rail safety work.

(6) A rail safety worker who, in the course of a period of duty is
unexpectedly required to carry out rail safety work, may request a transport
safety officer to conduct on him or her a preliminary breath test by a
prescribed device.

(7) A transport safety officer must comply with a request made under
subsection (6).

Penalty: 12 penalty units.

(8) The result of a preliminary breath test conducted under this section is
not admissible against the rail safety worker tested in a proceeding for an
offence against section 76(1).





(9) However, the result of a preliminary breath test that was conducted under
this section is admissible against the rail safety worker tested in a
disciplinary proceeding unless the test was conducted at the request of the
rail safety worker under subsection (6).

(10) A member of the police force who conducts a preliminary breath test under
this section must ensure that the operation of the railway is disrupted no
more than is reasonably necessary as a result of the testing.