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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Transport Portfolio—Alcohol and
Drugs) Bill 2008
A BILL FOR
An Act to amend the Harbors and Navigation Act 1993, the
Motor Vehicles Act 1959, the Rail Safety Act 2007 and
the Road Traffic Act 1961.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Harbors and Navigation
Act 1993
4 Amendment of section
4—Interpretation
5 Amendment of section 13—Production of identity
card
6 Amendment of section 70—Alcohol and other
drugs
7 Substitution of sections 71 to 72B
71 Authorised
person may require alcotest or breath
analysis
72 Authorised person may require drug
screening test, oral fluid analysis and blood
test
72A Schedule 1A further regulates blood and oral
fluid sample processes
8 Substitution of section
73
73 Evidence
9 Insertion of section
73B
73B Oral fluid analysis or blood test where consumption of
prescribed drug occurs after operation of vessel
10 Amendment of
section 74—Compulsory blood tests of injured persons including water
skiers
11 Insertion of Schedule 1A
Schedule 1A—Blood and oral fluid sample processes
Part
1—Preliminary
1 Interpretation
Part 2—Processes relating to blood samples under section 71, 72 or
74
2 Blood sample processes
generally
3 Blood tests by registered
nurses
4 Police officer to be present when blood sample
taken
5 Cost of blood tests under certain
sections
6 Provisions relating to medical practitioners
etc
Part 3—Processes relating to oral fluid samples under section
72
7 Oral fluid sample processes
Part 4—Other provisions relating to blood or oral fluid samples under
Part 10 Division 4
8 Blood or oral fluid sample or results of
analysis etc not to be used for other
purposes
9 Destruction of blood or oral fluid sample
taken under Part 10 Division 4
Part 3—Amendment of Motor Vehicles
Act 1959
12 Amendment of section
5—Interpretation
13 Amendment of section 72A—Qualified
supervising drivers
14 Amendment of section 74—Duty to hold licence or
learner's permit
15 Amendment of section 75A—Learner's
permit
16 Insertion of section 79B
79B Alcohol and drug
dependency assessments and issue of licences
17 Amendment of section
80—Ability or fitness to be granted or hold licence or
permit
18 Amendment of section 81—Restricted licences and learner's
permits
19 Amendment of section 81A—Provisional
licences
20 Amendment of section 81AB—Probationary
licences
21 Amendment of section 81B—Consequences of holder of
learner's permit, provisional licence or probationary licence contravening
conditions etc
22 Amendment of section 81C—Disqualification for certain
drink driving offences
23 Amendment of section 81D—Disqualification for
certain drug driving offences
24 Insertion of sections 81E to
81H
81E Circumstances in which licence will be subject to
mandatory alcohol interlock scheme
conditions
81F Mandatory alcohol interlock scheme
conditions
81G Cessation of licence subject to
mandatory alcohol interlock scheme
conditions
81H Contravention of mandatory alcohol
interlock scheme conditions
25 Amendment of section 93—Notice to
be given to Registrar
26 Insertion of Schedule 6
Schedule 6—Transitional voluntary alcohol interlock
scheme
1 Interpretation
2 Voluntary
alcohol interlock scheme conditions to continue to apply to certain licences
issued before commencement of Schedule
3 Voluntary
alcohol interlock scheme conditions to apply to certain licences issued on or
after commencement of Schedule
4 Period for which
licence is required to be subject to voluntary alcohol interlock scheme
conditions
5 Voluntary alcohol interlock scheme
conditions
6 Cessation of licence subject to voluntary
alcohol interlock scheme conditions
7 Contravention of
voluntary alcohol interlock scheme
conditions
8 Financial assistance for use of alcohol
interlocks
9 Fees
Part 4—Amendment of Rail Safety
Act 2007
27 Amendment of Schedule 2—Provisions relating
to alcohol and other drug testing
Part 5—Amendment of Road Traffic
Act 1961
28 Amendment of section
5—Interpretation
29 Amendment of section 47—Driving under
influence
30 Amendment of section 47A—Interpretation
31 Amendment of
section 47B—Driving while having prescribed concentration of alcohol in
blood
32 Amendment of section 47BA—Driving with prescribed drug in oral
fluid or blood
33 Amendment of section 47E—Police may require alcotest
or breath analysis
34 Amendment of section 47EAA—Police may require
drug screening test, oral fluid analysis and blood test
35 Amendment of
section 47I—Compulsory blood tests
36 Amendment of section
47IAA—Power of police to impose immediate licence disqualification or
suspension
37 Amendment of section 47J—Recurrent
offenders
38 Amendment of section 47K—Evidence
39 Repeal of Part 3
Division 5A
40 Amendment of Schedule 1—Oral fluid and blood sample
processes
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Transport
Portfolio—Alcohol and Drugs) Bill 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Harbors and Navigation
Act 1993
4—Amendment of
section 4—Interpretation
(1) Section 4(1)—after the definition of alcotest
insert:
analyst means a person who is an analyst for the purposes of
the Road Traffic Act 1961;
approved blood test kit means a kit of a kind declared under
the Road Traffic Act 1961 to be an approved blood test
kit;
(2) Section 4(1), definition of authorised
person—delete "member of the police force" and
substitute:
police officer
(3) Section 4(1)—after the definition of breath analysing
instrument insert:
breath analysis means an analysis of breath by means of a
breath analysing instrument;
category 1 offence means an offence against section 70(2)
involving a concentration of alcohol of less than .08 grams in 100 millilitres
of blood;
category 2 offence means an offence against section 70(2)
involving a concentration of alcohol of not less than .08 grams but less than
.15 grams in 100 millilitres of blood;
category 3 offence means an offence against section 70(2)
involving a concentration of alcohol of not less than .15 grams in 100
millilitres of blood;
(4) Section 4(1)—after the definition of department
insert:
drug screening test means a test by means of an apparatus of
a kind approved under the Road Traffic Act 1961 for the purpose of
conducting drug screening tests;
(5) Section 4(1)—after the definition of harbor
insert:
hospital means an institution declared under the Road
Traffic Act 1961 to be a hospital for the purposes of section 47I of
that Act;
(6) Section 4(1)—after the definition of master
insert:
Metropolitan Adelaide has the same meaning as in the
Development Act 1993;
(7) Section 4(1)—after the definition of operator
insert:
oral fluid includes saliva;
oral fluid analysis means an analysis of oral fluid by means
of an apparatus of a kind approved under the Road Traffic Act 1961
for the conduct of oral fluid analyses;
(8) Section 4(1)—after the definition of port operator
insert:
prescribed alcohol or drug offence means an offence against
Part 10 Division 4;
prescribed circumstances—a requirement to submit to an
alcotest or breath analysis under section 71, or a direction to stop a vessel
for the purpose of making such a requirement, is made or given in prescribed
circumstances if the authorised person who makes the requirement or gives the
direction believes on reasonable grounds that the person of whom the requirement
is, or is to be, made has, within the preceding 8 hours—
(a) committed an offence of a prescribed class; or
(b) behaved in a manner that indicates that his or her ability to do the
following is impaired:
(i) operate a vessel; or
(ii) as a member of the crew of a vessel, engage in duties affecting the
safe navigation, operation or use of the vessel; or
(c) been involved in an accident as—
(i) the operator of a vessel; or
(ii) a member of the crew of a vessel who was, or ought to have been,
engaged in duties affecting the safe navigation, operation or use of the
vessel;
prescribed concentration of alcohol means a concentration of
.05 grams or more in 100 millilitres of blood;
prescribed drug means a substance declared under the Road
Traffic Act 1961 to be a prescribed drug;
5—Amendment of
section 13—Production of identity card
Section 13—delete "member of the police force" and
substitute:
police officer
6—Amendment of
section 70—Alcohol and other drugs
(1) Section 70(1)(a)—delete "or operation" and substitute:
, operation or use
(2) Section 70(3)—delete subsection (3) and substitute:
(3) If—
(a) a person operates a vessel or is a member of the crew of a vessel who
is, or ought to be, engaged in duties affecting the safe navigation, operation
or use of the vessel; and
(b) a prescribed drug is present in the oral fluid or blood of that
person,
that person is guilty of an offence.
Penalty:
(a) for a first offence—a fine of not less than $500 and not more
than $900;
(b) for a second offence—a fine of not less than $700 and not more
than $1 200;
(c) for a subsequent offence—a fine of not less than $1 100 and
not more than $1 800.
(3a) Subject to subsection (3b), it is a defence to a charge of an offence
against subsection (3) if the defendant proves that he or she did not knowingly
consume the prescribed drug present in his or her oral fluid or blood.
(3b) Subsection (3a) does not apply if the defendant consumed the
prescribed drug believing that he or she was consuming a substance unlawfully
but was mistaken as to, unaware of or indifferent to the identity of the
prescribed drug.
(3) Section 70(4)—delete "offence against this Division" and
substitute:
prescribed alcohol or drug offence
7—Substitution of
sections 71 to 72B
Sections 71 to 72B (inclusive)—delete the sections and
substitute:
71—Authorised person may require alcotest or breath
analysis
(1) An authorised person may require—
(a) a person who is operating a vessel or who has operated a vessel;
or
(b) a person who is or was a member of the crew of a vessel that is being
operated or has been operated, and who is or was, or ought to be or to have been
engaged in duties affecting the safe navigation, operation or use of the
vessel,
to submit to an alcotest or a breath analysis, or both.
(2) An authorised person may direct a person who is apparently in charge
of a vessel to stop the vessel and may give other reasonable directions for the
purpose of making a requirement under this section that a person submit to an
alcotest or a breath analysis.
(3) A person must forthwith comply with a direction under
subsection (2).
Maximum penalty: $2 500.
(4) An alcotest or a breath analysis to which a person has been required
to submit under this section may not be commenced more than 8 hours
after—
(a) the person ceased to operate a vessel; or
(b) the person was a member of the crew of a vessel who was, or ought to
have been, engaged in duties affecting the safe navigation, operation or use of
the vessel.
(5) The performance of an alcotest or a breath analysis that has been
required under this section commences when a direction is first given by an
authorised person that the person concerned exhale into the alcotest apparatus
or breath analysing instrument to be used for the alcotest or breath
analysis.
(6) A breath analysis may only be conducted by a person authorised by the
Commissioner of Police to operate a breath analysing instrument.
(7) The regulations may prescribe the manner in which an alcotest or
breath analysis is to be conducted and may, for example, require that more than
1 sample of breath is to be provided for testing or analysis and, in such a
case, specify which reading of the apparatus or instrument will be taken to be
the result of the alcotest or breath analysis for the purposes of this Division
and any other Act.
(8) A person required under this section to submit to an alcotest or a
breath analysis must not refuse or fail to comply with all reasonable directions
of an authorised person in relation to the requirement and, in particular, must
not refuse or fail to exhale into the apparatus by which the alcotest or breath
analysis is conducted in accordance with the directions of the authorised
person.
Penalty:
(a) for a first offence—a fine of not less than $700 and not more
than $1 200;
(b) for a subsequent offence—a fine of not less than $1 500 and
not more than $2 500.
(9) It is a defence to a prosecution under subsection (8)
that—
(a) the requirement or direction to which the prosecution relates was not
lawfully made; or
(b) the person was not allowed the opportunity to comply with the
requirement or direction after having been given the prescribed oral advice in
relation to—
(i) the consequences of refusing or failing to comply with the requirement
or direction; and
(ii) the person's right to request the taking of a blood sample under
subsection (10); or
(c) there was, in the circumstances of the case, good reason for the
defendant to refuse or fail to comply with the requirement or
direction.
(10) If a person fails to comply with the requirement or direction under
this section by reason of some physical or medical condition of the person and
forthwith makes a request of an authorised person that a sample of his or her
blood be taken by a medical practitioner, an authorised person must do all
things reasonably necessary to facilitate the taking of a sample of the person's
blood—
(a) by a medical practitioner nominated by the person; or
(b) if—
(i) it becomes apparent to the authorised person that there is no
reasonable likelihood that a medical practitioner nominated by the person will
be available to take the sample within 1 hour of the time of the request at some
place not more than 10 kilometres distant from the place of the
request; or
(ii) the person does not nominate a particular medical
practitioner,
by any medical practitioner who is available to take the sample.
(11) A person is not entitled to refuse or fail to comply with a
requirement or direction under this section on the ground that—
(a) the person would, or might, by complying with that requirement or
direction, furnish evidence that could be used against himself or herself;
or
(b) the person consumed alcohol after the person last operated a vessel or
attempted to put a vessel in motion and before the requirement was made or the
direction was given.
(12) A person may not raise a defence that the person had good cause for a
refusal or failure to comply with a requirement or direction under this section
by reason of some physical or medical condition of the person
unless—
(a) a sample of the person's blood was taken in accordance with
subsection (10); or
(b) the person made a request as referred to in that subsection,
but—
(i) an authorised person failed to facilitate the taking of a sample of
the person's blood as required by that subsection; or
(ii) a medical practitioner was not reasonably available for the purpose
of taking such a sample; or
(c) the taking of a sample of a person's blood in accordance with
subsection (10) was not possible or reasonably advisable or practicable in
the circumstances by reason of some physical or medical condition of the
person.
(13) In determining whether an offence is a first or subsequent offence
for the purposes of this section, any previous prescribed alcohol or drug
offence for which the defendant has been convicted will be taken into account,
but only if the previous offence was committed within the period of 5 years
immediately preceding the date on which the offence under consideration was
committed.
(14) If a person—
(a) refuses or fails to comply with a direction under this section;
or
(b) submits to an alcotest and the alcotest indicates that the prescribed
concentration of alcohol may be present in the blood of the person,
there will be reasonable ground to suspect that the prescribed
concentration of alcohol is present in the person's blood for the purposes of
the exercise of any power conferred on a police officer (including a power of
arrest) to prevent the person committing an offence by operating a vessel in
contravention of this Division.
(15) Subsection (14) does not limit the circumstances in which such a
power may otherwise be exercised by a police officer under this or any other
Act.
72—Authorised person may require drug screening
test, oral fluid analysis and blood test
(1) If a person has submitted to an alcotest or a breath analysis as a
result of a requirement under section 71, an authorised person may require the
person to submit to a drug screening test.
(2) If—
(a) a person has submitted to a drug screening test as a result of a
requirement under subsection (1) and the drug screening test indicates the
presence of a prescribed drug in the person's oral fluid; or
(b) a person has submitted to an alcotest or breath analysis as a result
of a requirement under section 71(1) that was made in prescribed
circumstances,
an authorised person may require the person to submit to an oral fluid
analysis or a blood test.
(3) If a person submits to an oral fluid analysis in compliance with a
requirement made under subsection (2) but the person is unable to produce
sufficient oral fluid for a sample to be taken, an authorised person may require
that the person submit to a blood test.
(4) An authorised person may give reasonable directions for the purpose of
making a requirement under this section that a person submit to a drug screening
test, oral fluid analysis or blood test.
(5) A person must forthwith comply with a direction under
subsection (4).
Maximum penalty: $2 500.
(6) A drug screening test, oral fluid analysis or blood test to which a
person has been required to submit under this section may not be commenced more
than 8 hours after—
(a) the person ceased to operate a vessel; or
(b) the person was a member of the crew of a vessel who was, or ought to
have been, engaged in duties affecting the safe navigation, operation or use of
the vessel.
(7) The performance of a drug screening test, oral fluid analysis or blood
test that has been required under this section commences when a direction is
first given by an authorised person that the person concerned provide a sample
of oral fluid or blood (as the case may be) to be used for the drug screening
test, oral fluid analysis or blood test.
(8) A drug screening test or an oral fluid analysis may only be conducted
by a police officer authorised by the Commissioner of Police to conduct such
tests or analyses.
(9) The regulations may prescribe the manner in which a drug screening
test, oral fluid analysis or blood test is to be conducted.
(10) A person required under this section to submit to a drug screening
test, oral fluid analysis or blood test must not refuse or fail to comply with
all reasonable directions of an authorised person in relation to the requirement
and, in particular, must not refuse or fail to allow a sample of oral fluid or
blood to be taken in accordance with the directions of an authorised
person.
Penalty:
(a) for a first offence—a fine of not less than $500 and not more
than $900;
(b) for a subsequent offence—a fine of not less than $1 100 and not
more than $1 800.
(11) It is a defence to a prosecution under subsection (10)
that—
(a) the requirement or direction to which the prosecution relates was not
lawfully made; or
(b) the person was not allowed the opportunity to comply with the
requirement or direction after having been given the prescribed oral advice in
relation to—
(i) the consequences of refusing or failing to comply with the requirement
or direction; and
(ii) in the case of—
(A) a drug screening test or an oral fluid analysis—the person's
right to request the taking of a blood sample under subsection (12);
or
(B) a blood test—the person's right to request an oral fluid
analysis under subsection (13); or
(c) there was, in the circumstances of the case, good cause for the
refusal or failure of the defendant to comply with the requirement or
direction.
(12) If a person of whom a requirement is made or to whom a direction is
given under this section relating to a drug screening test or oral fluid
analysis refuses or fails to comply with the requirement or direction by reason
of some physical or medical condition of the person and forthwith makes a
request of an authorised person that a sample of his or her blood be taken by a
medical practitioner, an authorised person must do all things reasonably
necessary to facilitate the taking of a sample of the person's
blood—
(a) by a medical practitioner nominated by the person; or
(b) if—
(i) it becomes apparent to the authorised person that there is no
reasonable likelihood that a medical practitioner nominated by the person will
be available to take the sample within 1 hour of the time of the request at some
place not more than 10 kilometres distant from the place of the request;
or
(ii) the person does not nominate a particular medical
practitioner,
by any medical practitioner who is available to take the sample.
(13) If a person of whom a requirement is made or to whom a direction is
given under this section relating to a blood test refuses or fails to comply
with the requirement or direction by reason of some physical or medical
condition of the person and forthwith makes a request of an authorised person
that an oral fluid analysis be conducted, an authorised person must do all
things reasonably necessary to facilitate the conduct of an oral fluid analysis
unless—
(a) a requirement or direction under this section relating to a drug
screening test or oral fluid analysis has been made of, or been given to, the
person; and
(b) —
(i) the person refused or failed to comply with that requirement or
direction on the ground of some physical or medical condition of the person and
made a request under subsection (12) for a sample of his or her blood to be
taken in accordance with that subsection; or
(ii) the person was unable to produce sufficient oral fluid for a sample
to be taken.
(14) A person is not entitled to refuse or fail to comply with a
requirement or direction under this section on the ground that—
(a) the person would, or might, by complying with that requirement or
direction, furnish evidence that could be used against himself or herself;
or
(b) the person consumed a prescribed drug after the person last operated a
vessel or was on duty as a member of the crew of a vessel and before the
requirement was made or the direction was given.
(15) A person may not raise a defence that the person had good cause for a
refusal or failure to comply with a requirement or direction under this section
relating to a drug screening test or oral fluid analysis by reason of some
physical or medical condition of the person unless—
(a) a sample of the person's blood was taken in accordance with
subsection (12); or
(b) the person made a request as referred to in subsection (12),
but—
(i) an authorised person failed to facilitate the taking of a sample of
the person's blood as required by that subsection; or
(ii) a medical practitioner was not reasonably available for the purpose
of taking such a sample; or
(c) the taking of a sample of the person's blood in accordance with
subsection (12) was not possible or reasonably advisable or practicable in
the circumstances by reason of some physical or medical condition of the
person.
(16) A person may not raise a defence that the person had good cause for a
refusal or failure to comply with a requirement or direction under this section
relating to a blood test by reason of some physical or medical condition of the
person unless—
(a) an oral fluid analysis was conducted in accordance with
subsection (13); or
(b) the person made a request as referred to in subsection (13), but
an authorised person failed to facilitate the conduct of an oral fluid analysis
as required by that subsection; or
(c) the taking of a sample of the person's oral fluid in accordance with
subsection (13) was not possible or reasonably advisable or practicable in
the circumstances by reason of some physical or medical condition of the
person.
(17) In determining whether an offence is a first or subsequent offence
for the purposes of this section, any previous prescribed alcohol or drug
offence for which the defendant has been convicted will be taken into account,
but only if the previous offence was committed within the period of 5 years
immediately preceding the date on which the offence under consideration was
committed.
(18) If a person—
(a) refuses or fails to comply with a requirement or direction under this
section; or
(b) submits to a drug screening test or oral fluid analysis and the drug
screening test or preliminary result of the oral fluid analysis indicates the
presence of a prescribed drug in the person's oral fluid,
there will be reasonable ground to suspect that a prescribed drug is
present in the person's oral fluid for the purposes of the exercise of any power
conferred on a police officer (including a power of arrest) to prevent the
person committing an offence by operating a vessel in contravention of this
Division.
(19) Subsection (18) does not limit the circumstances in which such a
power may otherwise be exercised by a police officer under this or any other
Act.
72A—Schedule 1A further regulates blood and oral
fluid sample processes
Schedule 1A makes further provision regulating blood and oral fluid sample
processes for the purposes of this Division.
Section 73—delete the section and substitute:
73—Evidence
(1) Without affecting the admissibility of evidence that might be given
otherwise than in pursuance of this section, evidence may be given, in any
proceedings for an offence, of the concentration of alcohol indicated as being
present in the blood of the defendant by a breath analysing instrument operated
by a person authorised to operate the instrument by the Commissioner of Police
and, if the requirements of this Act in relation to breath analysing instruments
and breath analysis, including subsections (5) and (6), have been complied with,
it must be presumed, in the absence of proof to the contrary, that the
concentration of alcohol so indicated was present in the blood of the defendant
at the time of the analysis.
(2) No evidence can be adduced in rebuttal of the presumption created by
subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant
as indicated by analysis of a sample of blood taken and dealt with in accordance
with Schedule 1A or in accordance with the regulations; and
(b) evidence as to whether the results of analysis of the sample of blood
demonstrate that the breath analysing instrument gave an exaggerated reading of
the concentration of alcohol present in the blood of the defendant.
(3) If, in any proceedings for an offence, it is proved—
(a) that the defendant—
(i) operated a vessel; or
(ii) was a member of a crew of a vessel that was being operated and was or
ought to have been engaged in duties affecting the safe navigation, operation or
use of the vessel; and
(b) that a concentration of alcohol was present in the defendant's blood
at the time of a breath analysis performed within the period of 2 hours
immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was
present in the defendant's blood at the time of the conduct referred to in
paragraph (a).
(4) No evidence can be adduced as to a breath or blood alcohol reading
obtained from a coin-operated breath testing or breath analysing machine
installed in a hotel or other licensed premises.
(5) As soon as practicable after a person has submitted to an analysis of
breath by means of a breath analysing instrument, the person operating the
instrument must deliver to the person whose breath has been analysed a statement
in writing specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(6) If a person has submitted to an analysis of breath by means of a
breath analysing instrument and the concentration of alcohol indicated as being
present in the blood of that person by the instrument is the prescribed
concentration of alcohol, the person operating the breath analysing instrument
must immediately—
(a) give the person the prescribed oral advice and deliver to the person
the prescribed written notice as to the operation of this Act in relation to the
results of the breath analysis and as to the procedures prescribed for the
taking and analysis of a sample of the person's blood; and
(b) at the request of the person made in accordance with the regulations,
deliver an approved blood test kit to the person.
(7) In proceedings for an offence a certificate—
(a) purporting to be signed by the Minister and to certify that a person
named in the certificate is an authorised person; or
(b) purporting to be signed by the Commissioner of Police and to certify
that a person named in the certificate is authorised by the Commissioner of
Police to operate breath analysing instruments; or
(c) purporting to be signed by a person authorised under
subsection (1) and to certify that—
(i) the apparatus used by the person was a breath analysing instrument
within the meaning of this Act; and
(ii) the breath analysing instrument was in proper order and was properly
operated; and
(iii) the provisions of this Act with respect to breath analysing
instruments and the manner in which an analysis of breath by means of a breath
analysing instrument is to be conducted were complied with,
will be accepted, in the absence of proof to the contrary, as proof of the
matters so certified.
(8) A certificate purporting to be signed by an authorised person and to
certify that an apparatus referred to in the certificate is or was of a kind
approved under the Road Traffic Act 1961 for the purpose of
performing alcotests, drug screening tests or oral fluid analyses is, in the
absence of proof to the contrary, proof of the matter so certified.
(9) A certificate purporting to be signed by an authorised person and to
certify that a person named in the certificate submitted to an alcotest on a
specified day and at a specified time and that the alcotest indicated that the
prescribed concentration of alcohol may then have been present in the blood of
that person is, in the absence of proof to the contrary, proof of the matter so
certified.
(10) Subject to subsection (22), a certificate purporting to be
signed by an analyst, certifying as to the concentration of alcohol, or any
drug, found in a specimen of blood identified in the certificate expressed in
grams in 100 millilitres of blood is, in the absence of proof to the contrary,
proof of the matters so certified.
(11) Subject to subsection (22), in legal proceedings a certificate
purporting to be signed by a person authorised under subsection (1) and to
certify that—
(a) a person named in the certificate submitted to an analysis of breath
by means of a breath analysing instrument on a day and at a time specified in
the certificate; and
(b) the breath analysing instrument produced a reading specified in the
certificate; and
(c) a statement in writing required by subsection (5) was delivered
in accordance with that subsection,
will be accepted, in the absence of proof to the contrary, as proof of the
matters so certified.
(12) A certificate purporting to be signed by a person authorised under
subsection (1) and to certify—
(a) that on a date and at a time stated in the certificate, a person named
in the certificate submitted to a breath analysis; and
(b) that the prescribed oral advice and the prescribed written notice were
given and delivered to the person in accordance with subsection (6)(a);
and
(c) that—
(i) the person did not make a request for an approved blood test kit in
accordance with the regulations; or
(ii) at the request of the person, a kit that, from an examination of its
markings, appeared to the person signing the certificate to be an approved blood
test kit was delivered to the person in accordance with
subsection (6)(b),
is, in the absence of proof to the contrary, proof that the requirements of
subsection (6) were complied with in relation to the person.
(13) A prosecution for an offence will not fail because of a deficiency of
a kit delivered to the defendant in purported compliance with
subsection (6)(b) and the presumption under subsection (1) will apply
despite such a deficiency unless it is proved—
(a) that the defendant delivered the kit unopened to a medical
practitioner for use in taking a sample of the defendant's blood; and
(b) by evidence of the medical practitioner, that the medical practitioner
was, because of a deficiency of the kit, unable to comply with the prescribed
procedures governing the manner in which a sample of a person's blood must be
taken and dealt with for the purposes of subsection (2).
(14) Subject to subsection (22), an apparently genuine document
purporting to be a certificate under Schedule 1A, or a copy of such a
certificate, and purporting to be signed by an authorised person, medical
practitioner or analyst under Schedule 1A is admissible in proceedings before a
court and is, in the absence of proof to the contrary, proof of the matters
stated in the certificate.
(15) If a certificate of an analyst relating to a sample of blood taken
under Schedule 1A is received in evidence in proceedings before a court and
states that the prescribed concentration of alcohol has been found to be present
in the sample of blood to which the certificate relates, it will be presumed, in
the absence of proof to the contrary, that the concentration of alcohol stated
in the certificate was present in the sample when the sample was
taken.
(16) If it is proved by the prosecution in the proceedings for an offence
that a concentration of alcohol was present in the defendant's blood at the time
at which a sample of blood was taken under Schedule 1A, it will be conclusively
presumed that concentration of alcohol was present in the defendant's blood
throughout the period of 2 hours immediately preceding the taking of the
sample.
(17) If certificates of an authorised person and analyst, or a medical
practitioner and analyst under Schedule 1A are received as evidence in
proceedings before a court and contain the same identification number for the
samples of oral fluid or blood to which they relate, the certificates will be
presumed, in the absence of proof to the contrary, to relate to the same sample
of oral fluid or blood.
(18) If a certificate of an analyst relating to a sample of oral fluid or
blood taken under Schedule 1A is received as evidence in proceedings before a
court and states that a drug has been found to be present in the sample of oral
fluid or blood to which the certificate relates, it will be presumed, in the
absence of proof to the contrary, that the drug stated in the certificate was
present in the sample when the sample was taken.
(19) If it is proved by the prosecution in proceedings for an offence that
a drug was present in the defendant's oral fluid or blood at the time at which a
sample of oral fluid or blood was taken under Schedule 1A, it will be
conclusively presumed that the drug was present in the defendant's oral fluid or
blood (as the case may require) throughout the period of 3 hours immediately
preceding the taking of the sample.
(20) A certificate purporting to be signed by an authorised person and to
certify that a person named in the certificate submitted to a drug screening
test on a specified day and at a specified time and that the drug screening test
indicated that a prescribed drug may then have been present in the oral fluid of
the person is admissible in proceedings before a court and is, in the absence of
proof to the contrary, proof of the matters so certified.
(21) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify
that a person named in the certificate is authorised by the Commissioner of
Police to conduct oral fluid analyses or drug screening tests; or
(b) purporting to be signed by a police officer authorised to conduct oral
fluid analyses or drug screening tests under Schedule 1A and to certify that the
apparatus used to conduct an oral fluid analysis or a drug screening test was in
proper order and the oral fluid analysis or drug screening test was properly
conducted,
is admissible in proceedings before a court and is, in the absence of proof
to the contrary, proof of the matters so certified.
(22) A certificate referred to in subsection (10), (11) or (14)
cannot be received as evidence in proceedings for an offence—
(a) unless a copy of the certificate proposed to be put in evidence at the
trial of a person for the offence has, not less than 7 days before the
commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served has,
not less than 2 days before the commencement of the trial, served written notice
on the complainant or informant requiring the attendance at the trial of the
person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the
certificate was signed to attend at the trial.
After section 73A insert:
73B—Oral fluid analysis or blood test where
consumption of prescribed drug occurs after operation of
vessel
(1) This section applies to proceedings for an offence against
section 70(1) or (3) in which the results of an oral fluid analysis or a
blood test under section 72 are relied on to establish the commission of the
offence.
(2) If in proceedings to which this section applies the defendant
satisfies the court—
(a) that the defendant consumed the prescribed drug during the relevant
period; and
(b) that the prescribed drug was not consumed after an authorised person
first exercised powers under section 71 preliminary to the performance of the
alcotest or breath analysis referred to in section 72,
the court may, despite the other provisions of this Act, find the defendant
not guilty of the offence charged.
(3) In subsection (2)—
relevant period means the period between—
(a) the conduct of the defendant giving rise to the making of the
requirement that the defendant submit to the alcotest or breath analysis
referred to in section 72; and
(b) the performance of the oral fluid analysis or blood test (as the case
may be) under section 72.
10—Amendment of
section 74—Compulsory blood tests of injured persons including water
skiers
(1) Section 74(1)—delete "14" and substitute:
10
(2) Section 74(1)—delete "is admitted into" and
substitute:
attends at, or is admitted into,
(3) Section 74(2) and (3)—delete subsections (2) and (3)
(4) Section 74(4)—delete "14" and substitute:
10
(5) Section 74(7) to (17) (inclusive)—delete subsections (7) to
(17)
(6) Section 74(19)—delete "offence against this Division" and
substitute:
prescribed alcohol or drug offence
After Schedule 1 insert:
Schedule 1A—Blood and oral fluid sample
processes
Part 1—Preliminary
1—Interpretation
In this Schedule—
approved courier means a person approved by the Commissioner
of Police under the Road Traffic Act 1961 as a courier for the
purposes of Schedule 1 of that Act;
registered nurse means a person who is registered as a nurse
under the law of this State.
Part 2—Processes relating to blood samples under
section 71, 72 or 74
2—Blood sample processes
generally
The following provisions apply where a sample of blood is taken under
section 71, 72 or 74:
(a) a medical practitioner by whom a sample of blood is taken
must—
(i) place the sample of blood, in approximately equal proportions, in 2
separate containers marked with an identification number distinguishing the
sample from other samples of blood and seal the containers; and
(ii) give to the person from whom the sample was taken, or (in the case of
a sample taken under section 74) leave with the person's personal effects at the
hospital, a notice in writing—
(A) advising that the sample has been taken under the relevant section;
and
(B) advising that a container containing part of the sample and marked
with the identification number specified in the notice will be available for
collection by or on behalf of the person at a specified place; and
(C) containing any other information prescribed by the regulations;
and
(iii) complete and sign a certificate containing the information required
under paragraph (d); and
(iv) make the containers and the certificate available to a police
officer;
(b) each container must contain a sufficient quantity of blood to enable
an analysis to be made of the concentration of alcohol present in the blood or
of the presence of a prescribed drug in the blood;
(c) it is the duty of the medical practitioner by whom the sample is taken
to take such measures as are reasonably practicable in the circumstances to
ensure that the blood is not adulterated and does not deteriorate so as to
prevent a proper analysis of the concentration of alcohol present in the blood,
or the presence of a prescribed drug in the blood;
(d) the certificate referred to in paragraph (a) must
state—
(i) the identification number of the sample marked on the containers
referred to in that paragraph; and
(ii) the name and address of the person from whom the sample was taken;
and
(iii) the name of the medical practitioner by whom the sample was taken;
and
(iv) the date, time and place at which the sample was taken; and
(v) that the medical practitioner gave the notice referred to in that
paragraph to the person from whom the sample was taken, or, as the case may be,
left the notice with the person's personal effects;
(e) one of the containers containing the sample must—
(i) as soon as reasonably practicable be taken by a police officer or an
approved courier to the place specified in the notice given to the person or
left with the person's personal effects under paragraph (a); and
(ii) be kept available at that place for collection by or on behalf of the
person for the period prescribed by the regulations;
(f) after analysis of the sample in a container made available to a police
officer in accordance with paragraph (a), the analyst who performed or
supervised the analysis must sign a certificate containing the following
information:
(i) the identification number of the sample marked on the
container;
(ii) the name and professional qualifications of the analyst;
(iii) the date on which the sample was received in the laboratory in which
the analysis was performed;
(iv) the concentration of alcohol or other drug found to be present in the
blood;
(v) any factors relating to the sample or the analysis that might, in the
opinion of the analyst, adversely affect the accuracy or validity of the
analysis;
(vi) any other information relating to the sample or analysis or both that
the analyst thinks fit to include;
(g) on completion of an analysis of a sample, the certificate of the
medical practitioner by whom the sample was taken and the certificate of the
analyst who performed or supervised the analysis must be sent to the Minister or
retained on behalf of the Minister and, in either event, copies of the
certificates must be sent—
(i) to the Commissioner of Police; and
(ii) to the medical practitioner by whom the sample was taken;
and
(iii) to the person from whom the sample was taken or, if the person is
dead, a relative or personal representative of the deceased;
(h) if the whereabouts of the person from whom the sample is taken, or
(that person being dead) the identity or whereabouts of a relative or personal
representative of the deceased, is unknown, there is no obligation to comply
with paragraph (g)(iii) but copies of the certificates must, on application
made within 3 years after completion of the analysis, be furnished to any person
to whom they should, but for this paragraph, have been sent.
3—Blood tests by registered
nurses
If a person has made a request under section 71(10) or 72(12), or is
required to submit to a blood test under section 72(2) or (3), at a place
outside Metropolitan Adelaide—
(a) a sample of the person's blood may be taken by a registered nurse
instead of a medical practitioner for the purposes of section 71(10) or 72(12)
or this Schedule; and
(b) the provisions of this Act and the regulations under this Act apply in
relation to the taking of the sample of the person's blood and the subsequent
dealing with the sample as if a reference in those provisions to a medical
practitioner included a reference to a registered nurse.
4—Police officer to be present when blood sample
taken
The taking of a sample of blood under section 71(10) or 72(2), (3)
or (12) must be in the presence of a police officer.
5—Cost of blood tests under certain
sections
The taking of a sample of blood under section 71(10), 72(12) or 74 must be
at the expense of the Crown.
6—Provisions relating to medical practitioners
etc
(1) No proceedings lie against a medical practitioner or registered nurse
in respect of anything done in good faith and in compliance, or purported
compliance, with the provisions of this Act.
(2) A medical practitioner must not take a sample of a person's blood
under this Act if, in his or her opinion, it would be injurious to the medical
condition of the person to do so.
(3) A medical practitioner is not obliged to take a sample of a person's
blood under this Act if the person objects to the taking of the sample of blood
and persists in that objection after the medical practitioner has informed the
person that, unless the objection is made on genuine medical grounds, it may
constitute an offence against this Act.
(4) A medical practitioner who fails, without reasonable excuse, to comply
with a provision of, or to perform any duty arising under, section 74 is guilty
of an offence.
Maximum penalty: $2 500.
(5) No proceedings can be commenced against a medical practitioner for an
offence against subclause (4) unless those proceedings have been authorised
by the Attorney-General.
(6) An apparently genuine document purporting to be signed by the
Attorney-General and to authorise proceedings against a medical practitioner for
an offence under subclause (4) must, in the absence of proof to the
contrary, be accepted by any court as proof that those proceedings have been
authorised by the Attorney-General.
Part 3—Processes relating to oral fluid samples
under section 72
7—Oral fluid sample processes
The following provisions apply where a sample of oral fluid is taken under
section 72(2):
(a) the police officer who conducts the oral fluid analysis
must—
(i) place the sample of oral fluid (and any reagent or other substance
required by the regulations to be added to the sample) in approximately equal
proportions, in 2 separate containers marked with an identification number
distinguishing the sample from other samples of oral fluid and seal the
containers; and
(ii) give to the person from whom the sample was taken a notice in
writing—
(A) advising that the sample has been taken under section 72(2);
and
(B) advising that a container containing part of the sample and marked
with the identification number specified in the notice will be available for
collection by or on behalf of the person at a specified place; and
(C) containing any other information prescribed by the regulations;
and
(iii) complete and sign a certificate containing the information required
under paragraph (d);
(b) each container must contain a sufficient quantity of oral fluid to
enable an analysis to be made of the presence of a prescribed drug in the oral
fluid;
(c) it is the duty of the police officer who conducts the oral fluid
analysis to take such measures as are reasonably practicable in the
circumstances to ensure that the sample is not adulterated (other than as
required under paragraph (a)) and does not deteriorate so as to prevent a
proper analysis of the presence of a prescribed drug in the oral
fluid;
(d) the certificate referred to in paragraph (a) must
state—
(i) the identification number of the sample marked on the containers
referred to in that paragraph; and
(ii) the name and address of the person from whom the sample was taken;
and
(iii) the identification number of the police officer by whom the sample
was taken; and
(iv) the date, time and place at which the sample was taken; and
(v) that the police officer gave the notice referred to in that paragraph
to the person from whom the sample was taken;
(e) one of the containers containing the sample must—
(i) as soon as reasonably practicable be taken by a police officer or an
approved courier to the place specified in the notice given to the person under
paragraph (a); and
(ii) be kept available at that place for collection by or on behalf of the
person for the period prescribed by the regulations;
(f) after analysis of the sample in a container referred to in
paragraph (a), the analyst who performed or supervised the analysis must
sign a certificate containing the following information:
(i) the identification number of the sample marked on the
container;
(ii) the name and professional qualifications of the analyst;
(iii) the date on which the sample was received in the laboratory in which
the analysis was performed;
(iv) the information required by the regulations in relation to any
prescribed drug or drugs found to be present in the sample;
(v) any factors relating to the sample or the analysis that might, in the
opinion of the analyst, adversely affect the accuracy or validity of the
analysis;
(vi) any other information relating to the sample or analysis or both that
the analyst thinks fit to include;
(g) on completion of an analysis of a sample, the certificate of the
analyst who performed or supervised the analysis must be sent to the Minister or
retained on behalf of the Minister and, in either event, copies of the
certificates must be sent—
(i) to the Commissioner of Police; and
(ii) to the person from whom the sample was taken or, if the person is
dead, a relative or personal representative of the deceased;
(h) if the whereabouts of the person from whom the sample is taken, or
(that person being dead) the identity or whereabouts of a relative or personal
representative of the deceased is unknown, there is no obligation to comply with
paragraph (g)(ii) but copies of the certificates must, on application made
within 3 years after completion of the analysis, be furnished to any person to
whom they should, but for this paragraph, have been sent.
Part 4—Other provisions relating to blood or oral
fluid samples under Part 10 Division 4
8—Blood or oral fluid sample or results of analysis
etc not to be used for other purposes
(1) A sample of blood or oral fluid taken under Part 10 Division 4 (and
any other forensic material taken incidentally during a drug screening test,
oral fluid analysis or blood test) must not be used for a purpose other than
that contemplated by this Act.
(2) The results of a drug screening test, oral fluid analysis or blood
test under Part 10 Division 4, an admission or statement made by a person
relating to such a drug screening test, oral fluid analysis or blood test, or
any evidence taken in proceedings relating to such a drug screening test, oral
fluid analysis or blood test (or transcript of such evidence)—
(a) will not be admissible in evidence against the person in any
proceedings, other than proceedings for an offence against this Act or an
offence involving the operation or crewing of a vessel; and
(b) may not be relied on as grounds for the exercise of any search power
or the obtaining of any search warrant.
9—Destruction of blood or oral fluid sample taken
under Part 10 Division 4
The Commissioner of Police must ensure that a sample of blood or oral fluid
taken under Part 10 Division 4 (and any other forensic material taken
incidentally during a drug screening test, oral fluid analysis or blood test) is
destroyed—
(a) if proceedings for an offence of a kind referred to in
clause 8(2)(a) based on evidence of the results of analysis of the sample
are not commenced within the period allowed; or
(b) if such proceedings are commenced within the period allowed—when
the proceedings (including any proceedings on appeal) are finally determined or
discontinued.
Part 3—Amendment
of Motor Vehicles
Act 1959
12—Amendment of
section 5—Interpretation
(1) Section 5(1), definition of alcohol interlock scheme
conditions—delete the definition and substitute:
alcohol interlock means a device or system of a kind approved
by the Minister by notice in the Gazette as an alcohol interlock for the
purposes of this Act;
alcohol interlock scheme conditions means—
(a) the mandatory alcohol interlock scheme conditions; or
(b) the voluntary alcohol interlock scheme conditions;
approved alcohol interlock provider means a person, or a
person of a class, approved by the Minister by notice in the Gazette as a
provider of alcohol interlocks for the purposes of this Act;
(2) Section 5(1)—after the definition of caravan
insert:
category 1 offence means an offence against section 47B(1) of
the Road Traffic Act 1961 involving a concentration of alcohol of
less than .08 grams in 100 millilitres of blood;
category 2 offence means an offence against section 47B(1) of
the Road Traffic Act 1961 involving a concentration of alcohol of
less than .15 grams, but not less than .08 grams, in 100 millilitres of
blood;
category 3 offence means an offence against section 47B(1) of
the Road Traffic Act 1961 involving a concentration of alcohol of
.15 grams or more in 100 millilitres of blood;
(3) Section 5(1), definition of declared area—delete
the definition and substitute:
declared area means—
(a) the area of a municipal council; or
(b) a part of the State declared by regulation to be within the area for
the purposes of this definition;
(4) Section 5(1)—after the definition of District
Court insert:
drink driving offence has the same meaning as in the Road
Traffic Act 1961;
drug driving offence has the same meaning as in the Road
Traffic Act 1961;
(5) Section 5(1)—after the definition of licence
insert:
mandatory alcohol interlock scheme conditions means the
conditions referred to in section 81F;
(6) Section 5(1)—after the definition of motor vehicle
insert:
nominated vehicle for a person means a motor vehicle
nominated by the person to the Registrar in accordance with section
81F;
(7) Section 5(1)—after the definition of operator
insert:
oral fluid has the same meaning as in the Road Traffic
Act 1961;
(8) Section 5(1)—after the definition of prescribed
conditions insert:
prescribed drug has the same meaning as in the Road
Traffic Act 1961;
(9) Section 5(1)—after the definition of semi-trailer
insert:
serious drink driving offence—see section
81E;
(10) Section 5(1)—after the definition of vehicle
insert:
voluntary alcohol interlock scheme conditions—see
Schedule 6 clause 1;
(11) Section 5—after subsection (3a) insert:
(3b) The Minister may, by notice in the Gazette, approve or revoke the
approval of—
(a) a device or system as an alcohol interlock for the purposes of this
Act; or
(b) a person, or a person of a class, as a provider of alcohol interlocks
for the purposes of this Act.
13—Amendment of
section 72A—Qualified supervising drivers
Section 72A(4), definitions of oral fluid and
prescribed drug—delete the definitions
14—Amendment of
section 74—Duty to hold licence or learner's permit
(1) Section 74—after subsection (2) insert:
(2a) Subject to this Act, if a person—
(a) drives a motor vehicle on a road; and
(b) the person has, as a consequence of being convicted of a serious drink
driving offence, been disqualified from holding or obtaining a licence;
and
(c) the person has not, since the end of the period of that
disqualification, been authorised, under this Act or the law of another State or
Territory of the Commonwealth, to drive a motor vehicle,
the person is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(2b) An offence against this section is not expiable if the maximum
penalty for the offence is $5 000 or imprisonment for 1 year.
(2) Section 74(5)—delete "an offence against subsection (2) that is
a subsequent offence," and substitute:
an offence against this section for which the maximum penalty is
$5 000 or imprisonment for 1 year,
15—Amendment of
section 75A—Learner's permit
Section 75A(3a), definitions of oral fluid and
prescribed drug—delete the definitions
After section 79A insert:
79B—Alcohol and drug dependency assessments and
issue of licences
(1) If an applicant for the issue of a licence has, during the period of
5 years immediately preceding the date of application, expiated or been
convicted of—
(a) 3 or more category 1 offences; or
(b) 2 category 1 offences and 1 category 2 offence; or
(c) 2 or more serious drink driving offences,
the Registrar must, before determining the application for the licence,
direct the applicant to attend an assessment clinic for the purpose of
submitting to an examination to determine whether the applicant is dependent on
alcohol.
(2) If an applicant for the issue of a licence has, during the period of
5 years immediately preceding the date of application, expiated or been
convicted of 2 or more drug driving offences, the Registrar must, before
determining the application for the licence, direct the applicant to attend an
assessment clinic for the purpose of submitting to an examination to determine
whether the applicant is dependent on drugs.
(3) The superintendent of an assessment clinic must, as soon as
practicable after the assessment of a person has been completed under this
section, furnish a report on the examination to the Registrar, and send a copy
of the report to the person.
(4) Subject to subsection (6), if the Registrar is satisfied, on the
basis of the report of the superintendent of an assessment clinic, that the
applicant is dependent on alcohol, the Registrar must refuse to issue a licence
to the applicant until the applicant satisfies the Registrar, on the basis of a
report of the superintendent of an assessment clinic or such other evidence as
the Registrar may require, that the applicant is no longer dependent on
alcohol.
(5) If the Registrar is satisfied, on the basis of the report of the
superintendent of an assessment clinic, that the applicant is dependent on
drugs, the Registrar must refuse to issue a licence to the applicant until the
applicant satisfies the Registrar, on the basis of a report of the
superintendent of an assessment clinic or such other evidence as the Registrar
may require, that the applicant is no longer dependent on drugs.
(6) If the Registrar is satisfied, on the basis of the report of the
superintendent of an assessment clinic, that the applicant is dependent on
alcohol, but the applicant is willing to accept a licence subject to the
mandatory alcohol interlock scheme conditions, the Registrar may, subject to
this Act, issue such a licence to the applicant.
(7) The mandatory alcohol interlock scheme conditions of a licence issued
under this section are effective until the holder of the licence satisfies the
Registrar, on the basis of a report of the superintendent of an assessment
clinic or such other evidence as the Registrar may require, that the holder of
the licence is no longer dependent on alcohol.
(8) In this section—
assessment clinic means a place approved as an assessment
clinic for the purposes of this section by the Minister to whom the
administration of the Health Care Act 2008 is committed.
(9) Nothing in this section derogates from the Registrar's powers under
section 80 or 81.
17—Amendment of
section 80—Ability or fitness to be granted or hold licence or
permit
Section 80(5), penalty provision—delete "$250" and
substitute:
$1 250
18—Amendment of
section 81—Restricted licences and learner's permits
(1) Section 81(4)—after "licence" insert "or permit"
(2) Section 81(4), penalty provision—delete "$250" and
substitute:
$1 250
19—Amendment of
section 81A—Provisional licences
(1) Section 81A(a1), definitions of oral fluid and
prescribed drug—delete the definitions
(2) Section 81A(3d)—delete "under this Act or the Road Traffic
Act 1961"
20—Amendment of
section 81AB—Probationary licences
(1) Section 81AB(3)—after "subsection (3a)" insert:
or (3b)
(2) Section 81AB(3a)(b)—delete "under this Act or the Road
Traffic Act 1961"
(3) Section 81AB(3a)(c)—delete paragraph (c) and
substitute:
(c) the conditions imposed by subsection (1) are effective
for—
(i) the period for which the licence is required to be subject to the
alcohol interlock scheme conditions; or
(ii) 12 months,
whichever is the longer period.
(4) Section 81AB—after subsection (3a) insert:
(3b) If a licence is not issued subject to the alcohol interlock scheme
conditions but the application for the licence was made following a period of
disqualification ordered by a court for a serious drink driving offence
committed on or after the commencement of section 81E, the conditions
imposed by subsection (1) are effective for—
(a) a period equal to the period of disqualification for the offence
ordered by the court; or
(b) a period of 3 years,
whichever is the lesser.
(5) Section 81AB(7), definitions of oral fluid and
prescribed drug—delete the definitions
21—Amendment of
section 81B—Consequences of holder of learner's permit, provisional
licence or probationary licence contravening conditions etc
(1) Section 81B(1)—delete subsection (1)
(2) Section 81B(2a)—delete subsection (2a)
22—Amendment
of section 81C—Disqualification for certain drink driving
offences
(1) Section 81C(2)(c)—delete paragraph (c)
(2) Section 81C(3) to (6) inclusive—delete subsections (3) to
(6)
(3) Section 81C(7)—delete subsection (7) and substitute:
(7) In determining whether an offence to which this section applies is a
first, second, third or subsequent offence for the purposes of this section, any
previous drink driving offence or drug driving offence for which the person has
been convicted or that the person has expiated will be taken into account, but
only if the previous offence was committed or, in the case of an offence that
has been expiated, was alleged to have been committed, by the person within the
prescribed period immediately preceding the date on which the offence to which
this section applies is alleged to have been committed.
23—Amendment of
section 81D—Disqualification for certain drug driving
offences
Section 81D(3)—delete subsection (3) and substitute:
(3) In determining whether an offence to which this section applies is a
first, second, third or subsequent offence for the purposes of this section, any
previous drink driving offence or drug driving offence for which the person has
been convicted or that the person has expiated will be taken into account, but
only if the previous offence was committed or, in the case of an offence that
has been expiated, was alleged to have been committed, by the person within the
prescribed period immediately preceding the date on which the offence to which
this section applies is alleged to have been committed.
24—Insertion
of sections 81E to 81H
After section 81D insert:
81E—Circumstances in which licence will be subject
to mandatory alcohol interlock scheme conditions
(1) In this section—
disqualification means disqualification from holding or
obtaining a licence or learner's permit;
serious drink driving offence means any drink driving offence
other than—
(a) a category 1 offence; or
(b) a category 2 offence that is a first offence.
(2) In determining whether a category 2 offence is a first offence for the
purposes of this section, any previous drink driving offence (other than a
category 1 offence) for which the defendant has been convicted will be taken
into account, but only if the previous offence was committed within the period
of 5 years immediately preceding the date on which the offence under
consideration was committed.
(3) Subject to subsection (4), if a person who applies for a
licence—
(a) has been disqualified from holding or obtaining a licence by order of
a court on conviction for a serious drink driving offence committed on or after
the commencement of this section; and
(b) the person has not held a licence since the end of the period of
disqualification,
a licence issued to the person will be subject to the mandatory alcohol
interlock scheme conditions (in addition to any conditions otherwise required)
until—
(c) the conditions have been effective for the following period (the
prescribed minimum period):
(i) in the case of a person who has been given a notice of immediate
licence disqualification or suspension under section 47IAA of the Road
Traffic Act 1961 in respect of the offence—
(A) a period equal to the aggregate of the period of licence
disqualification or suspension that has applied as a result of the notice and
the period of disqualification for the offence ordered by the court;
or
(B) a period of 3 years,
whichever is the lesser;
(ii) in any other case—
(A) a period equal to the period of disqualification for the offence
ordered by the court; or
(B) a period of 3 years,
whichever is the lesser; and
(d) the person qualifies for the issue of a licence that is not subject to
the mandatory alcohol interlock scheme conditions in accordance with
subsection (5).
(4) If the applicant satisfies the Registrar, on such evidence as the
Registrar may require, that prescribed circumstances exist in the particular
case, a licence issued to the applicant will not be subject to the mandatory
alcohol interlock scheme conditions.
(5) The holder of a licence subject to the mandatory alcohol interlock
scheme conditions qualifies for the issue of a licence not subject to such
conditions if—
(a) the conditions have been effective for the prescribed minimum period;
and
(b) the Registrar is satisfied that, during the immediately preceding
period of 3 months, the alcohol interlock fitted to the nominated vehicle for
the person has not recorded any incidents of a kind specified in a notice by the
Minister in the Gazette.
(6) For the purposes of this section, in determining whether the mandatory
alcohol interlock conditions of a person's licence have been effective for the
prescribed minimum period, the following periods are not to be taken into
account:
(a) any period during which an alcohol interlock was not fitted to the
nominated vehicle for the person;
(b) any period during which there was no nominated vehicle for the
person.
81F—Mandatory alcohol interlock scheme
conditions
(1) The mandatory alcohol interlock scheme conditions to which a licence
is subject are as follows:
(a) a condition that the holder of the licence must not drive a motor
vehicle on a road other than a motor vehicle that the person has nominated to
the Registrar in accordance with this section;
(b) a condition that the holder of the licence must not drive the
nominated vehicle on a road unless it is fitted with a properly functioning
alcohol interlock that has been installed by an approved alcohol interlock
provider;
(c) a condition that the nominated vehicle must only be operated in
accordance with instructions published by the Minister by notice in the
Gazette;
(d) a condition that the holder of the licence must not interfere with the
alcohol interlock, or cause or permit the alcohol interlock to be interfered
with;
(e) a condition that the holder of the licence must, when driving the
nominated vehicle on a road, carry in the vehicle a certificate, in a form
approved by the Minister, issued by an approved alcohol interlock provider
certifying that the alcohol interlock fitted to the vehicle was properly
functioning when the vehicle was last examined by the provider;
(f) a condition that the holder of the licence must, if required to do so
by a police officer or an authorised officer when the nominated vehicle is in
the person's charge on a road, produce the certificate for inspection by the
officer;
(g) a condition that the holder of the licence must produce the nominated
vehicle for examination by an approved alcohol interlock provider at times and
places from time to time fixed by the Registrar by written notice served on the
person personally or by post;
(h) a condition that the holder of the licence must comply with any
requirements prescribed by the regulations.
(2) A motor vehicle must be nominated by the person in the person's
application for the licence, or by written notice to the Registrar, by
specifying the vehicle's registration number and any other details required by
the Registrar.
(3) Nomination of a motor vehicle by the person is of no effect if the
vehicle is a nominated vehicle for any other person.
(4) A motor vehicle ceases to be a nominated vehicle for the person if the
nomination is withdrawn by the person or, if the person is not the registered
owner of the vehicle, by the registered owner, by written notice to the
Registrar.
(5) In this section—
authorised officer does not include—
(a) an authorised person as defined in the Local Government
Act 1999; or
(b) any other person who is not an employee in the public
service.
81G—Cessation of licence subject to mandatory
alcohol interlock scheme conditions
If a person voluntarily surrenders a licence subject to the mandatory
alcohol interlock scheme conditions or ceases to hold such a licence for any
other reason before the person qualifies for the issue of a licence not subject
to such conditions in accordance with section 81E, a licence subsequently issued
to the person will be subject to the conditions until—
(a) the aggregate of the periods for which the conditions have applied in
relation to the person equals the prescribed minimum period specified in
section 81E; and
(b) the person qualifies for the issue of a licence not subject to the
conditions in accordance with that section.
81H—Contravention of mandatory alcohol interlock
scheme conditions
(1) The holder of a licence subject to the mandatory alcohol interlock
scheme conditions must not contravene any of the conditions.
Maximum penalty: $2 500.
(2) A person must not assist the holder of a licence subject to the
mandatory alcohol interlock scheme conditions to operate a motor vehicle, or
interfere with an alcohol interlock, in contravention of any of the
conditions.
Maximum penalty: $2 500.
(3) In proceedings for an offence against this section, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that—
(a) a specified motor vehicle was or was not, or no vehicle was, at a
specified time, a nominated vehicle for a specified person; or
(b) a written notice was served on a specified person fixing specified
times and places at which a specified motor vehicle must be produced for
examination by an approved alcohol interlock provider,
will be accepted as proof of the matters stated in the certificate in the
absence of proof to the contrary.
(4) In proceedings for an offence against this section, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that an alcohol interlock fitted to a specified motor vehicle
recorded electronically that the vehicle was operated at a specified time in
contravention of an instruction published by the Minister by notice in the
Gazette will be accepted as proof that the vehicle was operated at that time in
contravention of that instruction in the absence of proof to the
contrary.
(5) Subsection (4) does not apply unless it is proved that the alcohol
interlock fitted to the motor vehicle was tested by an approved alcohol
interlock provider (or an employee of an approved alcohol interlock provider)
not more than the prescribed number of days before and not more than the
prescribed number of days after the time of the vehicle's operation specified in
the certificate and found on each occasion to be properly functioning.
(6) In proceedings for an offence against this section, an apparently
genuine document purporting to be a certificate signed by an approved alcohol
interlock provider (or an employee of an approved alcohol interlock provider)
certifying that—
(a) an alcohol interlock was, on a specified date, installed in a
specified motor vehicle; or
(b) an alcohol interlock fitted to a specified motor vehicle was tested by
that person on a specified day and found to be properly functioning;
or
(c) an alcohol interlock was, on a specified date, removed from a
specified motor vehicle,
will be accepted as proof of the matters stated in the certificate in the
absence of proof to the contrary.
(7) In proceedings for an offence against this section, if it is proved
that—
(a) a specified motor vehicle was operated at a specified time in
contravention of an instruction published by the Minister by notice in the
Gazette; and
(b) the vehicle was a nominated vehicle for a specified person at that
time,
it will be presumed, in the absence of proof to the contrary, that the
vehicle was so operated by that person at that time.
(8) In proceedings for an offence against this section, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that a specified motor vehicle was not produced for examination by an
approved alcohol interlock provider at a specified time and place will be
accepted as proof of the matters stated in the certificate in the absence of
proof to the contrary.
25—Amendment of
section 93—Notice to be given to Registrar
Section 93(1)—after paragraph (d) insert:
(da) makes an order under section 47J(9) of the Road Traffic
Act 1961 revoking a disqualification; or
After Schedule 5 insert:
Schedule 6—Transitional voluntary alcohol interlock
scheme
1—Interpretation
In this Schedule—
disqualification means disqualification from holding or
obtaining a licence;
relevant drink driving offence means—
(a) an offence against section 47(1) of the Road Traffic
Act 1961 involving driving a motor vehicle, or attempting to put a
motor vehicle in motion, while so much under the influence of intoxicating
liquor as to be incapable of exercising effective control of the vehicle;
or
(b) an offence against section 47B(1), 47E(3) or 47I(14) of the Road
Traffic Act 1961;
required period—see clause 4;
voluntary alcohol interlock scheme conditions means the
conditions referred to in clause 5.
2—Voluntary alcohol interlock scheme conditions to
continue to apply to certain licences issued before commencement of
Schedule
If a licence in force under this Act on the commencement of this Schedule
is subject to the voluntary alcohol interlock scheme conditions, those
conditions continue to be effective after that commencement for the balance of
the required period unexpired on the commencement of this Schedule.
3—Voluntary alcohol interlock scheme conditions to
apply to certain licences issued on or after commencement of
Schedule
(1) If—
(a) —
(i) before the commencement of this Schedule, a person who expiates a
relevant drink driving offence to which section 81C applies is given a notice of
disqualification under that section stating that, despite the disqualification
imposed for that offence, the person will, on application made to the Registrar
at any time after the half-way point in the period of disqualification, be
entitled to be issued with a licence subject to the alcohol interlock scheme
conditions; or
(ii) before the commencement of this Schedule, a person who is convicted
of a relevant drink driving offence is disqualified by order of a court and the
court also makes an order against the person under section 50 of the Road
Traffic Act 1961 to the effect that, despite the disqualification
imposed for that offence, the person will, on application made to the Registrar
at any time after the half-way point in the period of disqualification, be
entitled to be issued with a licence that is subject to the alcohol interlock
scheme conditions; or
(iii) before the commencement of this Schedule, a person allegedly commits
a relevant drink driving offence to which section 81C applies and, after the
commencement of this Schedule, the person expiates the alleged offence and in
consequence of that expiation is disqualified under that section for a period of
at least 6 months; or
(iv) before the commencement of this Schedule, a person commits a relevant
drink driving offence and in consequence of the commission of that offence, the
person is, after the commencement of this Schedule and while the holder of a
licence, convicted of the offence and disqualified for a period of at least
6 months; and
(b) after the half-way point in the period of disqualification and within
the period of 5 years after the commencement of this Schedule, the person
applies for a licence subject to the alcohol interlock scheme conditions;
and
(c) the person meets the requirements of this Act for the issue of the
licence; and
(d) no disqualification (other than the disqualification for the offence
referred to in paragraph (a)) is in force at the date of the application or
will commence at a later date,
the person is entitled to be issued a licence subject to the voluntary
alcohol interlock scheme conditions for the required period (in addition to any
other conditions otherwise required).
(2) A disqualification referred to in subclause (1)(a) ends if the
person is issued with a licence subject to the voluntary alcohol interlock
scheme conditions.
4—Period for which licence is required to be
subject to voluntary alcohol interlock scheme conditions
The required period for which a licence is subject to the voluntary alcohol
interlock scheme conditions is a number of days equal to twice the number of
days remaining in the period of the person's disqualification for the relevant
drink driving offence immediately before the issuing of the licence.
5—Voluntary alcohol interlock scheme
conditions
(1) The voluntary alcohol interlock scheme conditions to which a licence
is subject are as follows:
(a) a condition that the person must not drive a motor vehicle on a road
other than a motor vehicle that the person has nominated to the Registrar in
accordance with this clause;
(b) a condition that the person must not drive the nominated vehicle on a
road unless it is fitted with a properly functioning alcohol interlock that has
been installed by an approved alcohol interlock provider;
(c) a condition that the nominated vehicle must only be operated in
accordance with instructions published by the Minister by notice in the
Gazette;
(d) a condition that the person must not interfere with the alcohol
interlock, or cause or permit the alcohol interlock to be interfered
with;
(e) a condition that the person must, when driving the nominated vehicle
on a road, carry in the vehicle a certificate, in a form approved by the
Minister, issued by an approved alcohol interlock provider certifying that the
alcohol interlock fitted to the vehicle was properly functioning when the
vehicle was last examined by the provider;
(f) a condition that the person must, if required to do so by a police
officer or an authorised officer when the vehicle is in the person's charge on a
road, produce the certificate for inspection by the officer;
(g) a condition that the person must produce the nominated vehicle for
examination by an approved alcohol interlock provider at times and places from
time to time fixed by the Registrar by written notice served on the person
personally or by post;
(h) a condition that the person must comply with any requirements as to
counselling prescribed by the regulations;
(i) a condition that the person must comply with any other requirements
prescribed by the regulations.
(2) A vehicle must be nominated by the person in the person's application
for the licence, or by written notice to the Registrar, by specifying the
vehicle's registration number and any other details required by the
Registrar.
(3) Nomination of a vehicle by the person is of no effect if the vehicle
is a nominated vehicle for any other person.
(4) A vehicle ceases to be a nominated vehicle for the person if the
nomination is withdrawn by the person or, if the person is not the registered
owner of the vehicle, by the registered owner, by written notice to the
Registrar.
(5) In this clause—
authorised officer does not include—
(a) an authorised person as defined in the Local Government
Act 1999; or
(b) any other person who is not an employee in the public
service.
6—Cessation of licence subject to voluntary alcohol
interlock scheme conditions
If a person—
(a) voluntarily surrenders a licence subject to the voluntary alcohol
interlock scheme conditions; or
(b) ceases to hold such a licence for another reason (other than
cancellation of the licence in consequence of the person being convicted of a
serious drink driving offence),
before the conditions have applied in relation to the person for the
required period, the person is, from the day on which the person surrenders or
ceases to hold the licence, disqualified from holding or obtaining a licence or
learner's permit for a period equal to the number of days remaining in the
period of the person's disqualification for the relevant drink driving offence
immediately before the issuing of the licence.
7—Contravention of voluntary alcohol interlock
scheme conditions
(1) The holder of a licence subject to the voluntary alcohol interlock
scheme conditions must not contravene any of the conditions.
Maximum penalty: $1 250.
(2) A person must not assist the holder of a licence subject to the
voluntary alcohol interlock scheme conditions to operate a motor vehicle, or
interfere with an alcohol interlock, in contravention of any of the
conditions.
Maximum penalty: $1 250.
(3) A court convicting a person of an offence against subclause (2)
may order that the person be disqualified from holding or obtaining a licence or
learner's permit for a period not exceeding 6 months.
(4) A disqualification under subclause (3) operates to cancel the
person's licence as from the commencement of the period of
disqualification.
(5) In proceedings for an offence against this clause, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that—
(a) a specified motor vehicle was or was not, or no vehicle was, at a
specified time, a nominated vehicle for a specified person; or
(b) a written notice was served on a specified person fixing specified
times and places at which a specified motor vehicle must be produced for
examination by an approved alcohol interlock provider,
will be accepted as proof of the matters stated in the certificate in the
absence of proof to the contrary.
(6) In proceedings for an offence against this clause, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that an alcohol interlock fitted to a specified motor vehicle
recorded electronically that the vehicle was operated at a specified time in
contravention of an instruction published by the Minister by notice in the
Gazette will be accepted as proof that the vehicle was operated at that time in
contravention of that instruction in the absence of proof to the
contrary.
(7) Subclause (6) does not apply unless it is proved that the alcohol
interlock fitted to the vehicle was tested by an approved alcohol interlock
provider (or an employee of an approved alcohol interlock provider) not more
than the prescribed number of days before and not more than the prescribed
number of days after the time of the vehicle's operation specified in the
certificate and found on each occasion to be properly functioning.
(8) In proceedings for an offence against this clause, an apparently
genuine document purporting to be a certificate signed by an approved alcohol
interlock provider (or an employee of an approved alcohol interlock provider)
certifying that an alcohol interlock fitted to a specified motor vehicle was
tested by that person on a specified day and found to be properly functioning
will be accepted as proof of the matters stated in the certificate in the
absence of proof to the contrary.
(9) In proceedings for an offence against this clause, if it is proved
that—
(a) a specified motor vehicle was operated at a specified time in
contravention of an instruction published by the Minister by notice in the
Gazette; and
(b) the vehicle was a nominated vehicle for a specified person at that
time,
it will be presumed, in the absence of proof to the contrary, that the
vehicle was so operated by that person at that time.
(10) In proceedings for an offence against this clause, an apparently
genuine document purporting to be a certificate signed by the Registrar
certifying that—
(a) a specified motor vehicle was not produced for examination by an
approved alcohol interlock provider at a specified time and place; or
(b) a specified person did not attend for counselling at a specified time
and place,
will be accepted as proof of the matters stated in the certificate in the
absence of proof to the contrary.
8—Financial assistance for use of alcohol
interlocks
(1) The scheme established under section 53AA(1) of the Road Traffic
Act 1961 continues in existence after the repeal of that section to
enable persons entitled to the issue of a licence subject to the voluntary
alcohol interlock scheme conditions to obtain loans or other assistance (subject
to a means test and conditions determined by the Minister) for the purpose of
gaining the use of alcohol interlocks.
(1) The Minister may issue a certificate signed by the Minister certifying
that a default has occurred in payment of an amount payable by a person in
accordance with conditions applying to a loan or other assistance provided to
the person under the scheme and that an amount stated in the certificate is
owing by that person.
(2) In any legal proceedings, an apparently genuine document purporting to
be a certificate under subclause (1) will be accepted as proof of the
matters stated in the certificate in the absence of proof to the
contrary.
9—Fees
(1) The holder of a licence subject to the voluntary alcohol interlock
scheme conditions is liable to pay the fees prescribed by regulation.
(2) Subclause (1) applies in relation to a licence whether issued before
or after the commencement of this Schedule.
Part 4—Amendment
of Rail Safety
Act 2007
27—Amendment of
Schedule 2—Provisions relating to alcohol and other drug
testing
(1) Schedule 2, clause 1—after the definition of approved
blood kit insert:
approved courier means a person approved by the Minister as a
courier for the purposes of this Schedule;
(2) Schedule 2—after clause 1 insert:
1A—Approval of couriers
The Minister may, by notice in the Gazette—
(a) approve a person as a courier for the purposes of this Schedule;
or
(b) revoke an approval under paragraph (a).
(3) Schedule 2, clause 5(10)—after "analysis" last occurring
insert:
unless—
(a) a requirement or direction under this clause relating to a drug
screening test or oral fluid analysis has been made of, or been given to, the
person; and
(b) —
(i) the person refused or failed to comply with that requirement or
direction on the ground of some physical or medical condition of the person and
made a request under subclause (9) for a sample of his or her blood to be
taken in accordance with that subclause; or
(ii) the person was unable to produce sufficient oral fluid for a sample
to be taken.
(4) Schedule 2, clause 10(e)(i)—after "authorised person"
insert:
or approved courier
(5) Schedule 2, clause 11(e)(i)—after "authorised person"
insert:
or approved courier
Part 5—Amendment
of Road Traffic
Act 1961
28—Amendment of
section 5—Interpretation
(1) Section 5(1)—after the definition of cycle
insert:
drink driving offence means—
(a) an offence against section 47(1) involving the driving of a motor
vehicle, or attempting to put a motor vehicle in motion, while so much under the
influence of intoxicating liquor as to be incapable of exercising effective
control of the vehicle; or
(b) an offence against section 47B(1), 47E(3) or 47I(14);
(2) Section 5(1)—after the definition of driver's
licence insert:
drug driving offence means—
(a) an offence against section 47(1) involving the driving of a motor
vehicle, or attempting to put a motor vehicle in motion, while so much under the
influence of a drug as to be incapable of exercising effective control of the
vehicle; or
(b) an offence against section 47BA(1), 47EAA(9) or 47I(14);
29—Amendment of
section 47—Driving under influence
Section 47(4)—delete subsection (4) and substitute:
(4) In determining whether an offence is a first or subsequent offence for
the purposes of this section, any previous drink driving offence or drug driving
offence for which the defendant has been convicted will be taken into account,
but only if the previous offence was committed within the prescribed period
immediately preceding the date on which the offence under consideration was
committed.
30—Amendment of
section 47A—Interpretation
Section 47A(1), definition of prescribed
circumstances—delete "2 hours or, in relation to a drug screening
test, 3 hours" and substitute:
8 hours
31—Amendment of
section 47B—Driving while having prescribed concentration of alcohol in
blood
(1) Section 47B(3)—delete "(other than a category 1 offence that is
a first offence)"
(2) Section 47B(3)(a)(i)—before subsubparagraph (A)
insert:
(AA) being a category 1 offence—for such period, being not less than
3 months, as the court thinks fit;
(3) Section 47B(3)(a)(ii)(A)—delete "3" and substitute:
6
(4) Section 47B(3)(a)(iii)(A)—delete "6" and substitute:
9
(5) Section 47B(4)—delete subsection (4) and substitute:
(4) In determining whether an offence is a first, second, third or
subsequent offence for the purposes of this section (other than
subsection (5)), any previous drink driving offence or drug driving offence
for which the defendant has been convicted will be taken into account, but only
if the previous offence was committed within the prescribed period immediately
preceding the date on which the offence under consideration was
committed.
(6) Section 47B(6)—delete subsection (6) and substitute:
(6) In determining whether a category 1 offence is a first offence for the
purposes of subsection (5), any previous drink driving offence or drug
driving offence for which the defendant has been convicted or that the defendant
has expiated will be taken into account, but only if the previous offence was
committed or alleged to have been committed within the prescribed period
immediately preceding the date on which the offence under consideration was
allegedly committed.
32—Amendment of
section 47BA—Driving with prescribed drug in oral fluid or
blood
(1) Section 47BA(4)—delete "(other than a first offence)"
(2) Section 47BA(4)(a)—before subparagraph (i) insert:
(ai) in the case of a first offence—for such period, being not less
than 3 months, as the court thinks fit;
(3) Section 47BA(5)—delete subsection (5) and substitute:
(5) In determining whether an offence is a first, second, third or
subsequent offence for the purposes of this section (other than
subsection (6)), any previous drink driving offence or drug driving offence
for which the defendant has been convicted will be taken into account, but only
if the previous offence was committed within the prescribed period immediately
preceding the date on which the offence under consideration was
committed.
(4) Section 47BA(7)—delete subsection (7) and substitute:
(7) In determining whether an offence is a first offence for the purposes
of subsection (6), any previous drink driving offence or drug driving
offence for which the person has been convicted or that the person has expiated
will be taken into account, but only if the previous offence was committed or
alleged to have been committed within the prescribed period immediately
preceding the date on which the offence under consideration was allegedly
committed.
33—Amendment of
section 47E—Police may require alcotest or breath
analysis
Section 47E(7)—delete subsection (7) and substitute:
(7) In determining whether an offence is a first or subsequent offence for
the purposes of this section, any previous drink driving offence or drug driving
offence for which the defendant has been convicted will be taken into account,
but only if the previous offence was committed within the prescribed period
immediately preceding the date on which the offence under consideration was
committed.
34—Amendment of
section 47EAA—Police may require drug screening test, oral fluid analysis
and blood test
(1) Section 47EAA—after subsection (2) insert:
(2a) If a person submits to an oral fluid analysis in compliance with a
requirement made under subsection (2) but the person is unable to produce
sufficient oral fluid for a sample to be taken, a police officer may require
that the person submit to a blood test.
(2) Section 47EAA(12)—after "analysis" last occurring
insert:
unless—
(a) a requirement or direction under this section relating to a drug
screening test or oral fluid analysis has been made of, or been given to, the
person; and
(b) —
(i) the person refused or failed to comply with that requirement or
direction on the ground of some physical or medical condition of the person and
made a request under subsection (11) for a sample of his or her blood to be
taken in accordance with that subsection; or
(ii) the person was unable to produce sufficient oral fluid for a sample
to be taken.
(3) Section 47EAA(17)—delete subsection (17) and
substitute:
(17) In determining whether an offence is a first or subsequent offence
for the purposes of this section, any previous drink driving offence or drug
driving offence for which the defendant has been convicted will be taken into
account, but only if the previous offence was committed within the prescribed
period immediately preceding the date on which the offence under consideration
was committed.
35—Amendment of
section 47I—Compulsory blood tests
(1) Section 47I(1)—delete "14" and substitute:
10
(2) Section 47(4)—delete "14" and substitute:
10
(3) Section 47I(14b)—delete subsection (14b) and
substitute:
(14b) In determining whether an offence is a first or subsequent offence
for the purposes of this section, any previous drink driving offence or drug
driving offence for which the defendant has been convicted will be taken into
account, but only if the previous offence was committed within the prescribed
period immediately preceding the date on which the offence under consideration
was committed.
36—Amendment of
section 47IAA—Power of police to impose immediate licence disqualification
or suspension
(1) Section 47IAA(1)—after paragraph (c) insert:
(ca) an offence against section 47EAA(9);
(2) Section 47IAA(12)(b)(iv)—after "offence" second occurring
insert:
or an offence against section 47EAA(9)
37—Amendment of
section 47J—Recurrent offenders
(1) Section 47J(1)(a)—delete paragraph (a) and substitute:
(a) is convicted of a prescribed offence that was committed in
Metropolitan Adelaide before the prescribed day; and
(2) Section 47J(1)—delete "suffers from alcoholism or addiction to
other drugs, or both" and substitute:
is dependent on alcohol or drugs, or both
(3) Section 47J(4)(a)—delete "suffers from alcoholism or addiction
to other drugs" and substitute:
is dependent on alcohol or drugs
(4) Section 47J(9)—delete "no longer suffers from alcoholism or
addiction to other drugs" and substitute:
is no longer dependent on alcohol or drugs
(5) Section 47J(12), definitions of assessment clinic and
prescribed area—delete the definitions and
substitute:
assessment clinic means a place approved as an assessment
clinic for the purposes of this section by the Minister to whom the
administration of the Health Care Act 2008 is committed;
prescribed day means a day prescribed by the regulations for
the purposes of this section;
38—Amendment of
section 47K—Evidence
(1) Section 47K(1)—after "analysis" second occurring
insert:
and throughout the preceding period of 2 hours
(2) Section 47K(9)—delete subsection (9) and substitute:
(9) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify
that a person named in the certificate is authorised by the Commissioner of
Police to conduct oral fluid analyses or drug screening tests; or
(b) purporting to be signed by a person authorised to conduct oral fluid
analyses or drug screening tests under section 47EAA and to certify that
the apparatus used to conduct an oral fluid analysis or a drug screening test
was in proper order and the oral fluid analysis or drug screening test was
properly conducted,
is admissible in proceedings before a court and is, in the absence of proof
to the contrary, proof of the matters so certified.
39—Repeal
of Part 3 Division 5A
Part 3 Division 5A—delete the Division
40—Amendment of
Schedule 1—Oral fluid and blood sample processes
(1) Schedule 1, clause 1—before the definition of forensic
material insert:
approved courier means a person approved by the Commissioner
of Police as a courier for the purposes of this Schedule;
(2) Schedule 1—after clause 1 insert:
1A—Approval of couriers
The Commissioner of Police may, by notice in the Gazette—
(a) approve a person as a courier for the purposes of this Schedule;
or
(b) revoke an approval under paragraph (a).
(3) Schedule 1, clause 2(e)(i)—after "police officer"
insert:
or an approved courier
(4) Schedule 1, clause 7(e)(i)—after "police officer"
insert:
or an approved courier
(5) Schedule 1, clause 9(a)—delete "against that Division" and
substitute:
of a kind referred to in clause 8(2)(a)