Victorian Consolidated Legislation

Rail Safety Act 2006 - SECT 78

Breath analysis

78. Breath analysis



(1) If a rail safety worker undergoes a preliminary breath test when required
by a transport safety officer or a member of the police force under section 77
to do so and-

   (a)  the test in the opinion of the transport safety officer or member of
        the police force in whose presence it is made indicates that the rail
        safety worker's breath contains alcohol; or

   (b)  the rail safety worker, in the opinion of the transport safety officer
        or member of the police force, refuses or fails to carry out the test
        in the manner specified in section 77(4)-

any transport safety officer or, if the requirement for the preliminary breath
test was made by a member of the police force, any member of the police force
may require the rail safety worker to furnish a sample of breath for analysis
by a breath analysing instrument and for that purpose may further require the
rail safety worker to accompany a transport safety officer or 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 rail safety worker has furnished
the sample of breath and been given the certificate referred to in subsection
(5) or until 3 hours after the carrying out of the rail safety work, whichever
is sooner.

(2) A transport safety officer or member of the police force may require any
rail safety worker who is required to undergo a drug assessment under section
79 to furnish a sample of breath for analysis by a breath analysing instrument
and may, for that purpose, require the rail safety worker to remain at the
place at which the rail safety worker is required to remain for the purposes
of the drug assessment until-

   (a)  the person has furnished the sample of breath and been given the
        certificate referred to in subsection (5) and the drug assessment has
        been carried out; or

   (b)  3 hours after the carrying out of rail safety work-

whichever is the sooner.

(3) The person who required a sample of breath under subsection (1) or (2) may
require the rail safety worker 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.





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

(5) As soon as practicable after a sample of a rail safety worker's breath is
analysed by means of a breath analysing instrument the person operating the
instrument must sign and give to the rail safety worker 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 breath.

(6) A rail safety worker 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.

(7) A rail safety worker is not obliged to furnish a sample of breath under
this section if more than 3 hours have passed since the rail safety worker
last carried out rail safety work.

(8) A rail safety worker 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.

(9) The person who required a sample of breath under subsection (1), (2) or
(3) from a rail safety worker may require the rail safety worker 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 blood
for analysis if it appears to him or her that-

   (a)  the rail safety worker 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 the rail safety worker for any reason
        whatsoever-

and for that purpose may further require that rail safety worker to accompany
a transport safety officer or 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 carrying out of the rail safety work, whichever is
sooner.

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

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

(12) 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 (9).

Penalty: 12 penalty units.

(13) 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 (9).

(14) A rail safety worker 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 (5), 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 the rail safety worker's blood for analysis at the
rail safety worker's own expense by a registered medical practitioner or an
approved health professional nominated by the member of the police force.

(15) A part of a sample of blood taken under subsection (14) must be delivered
to the person who required the sample of breath under this section.

(16) Nothing in subsection (14) relieves a rail safety worker from any penalty
under section 76(1)(e) for refusing to furnish a sample of breath.

(17) 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 (14) if reasonable efforts were made
to comply with the request.

(18) 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 rail safety worker is relevant
on a hearing for an offence against section 76(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.

(19) A document referred to in subsection (18) 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 Rail Safety Act 2006 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 Rail Safety Act 2006.