New South Wales Consolidated Acts New South Wales Consolidated Acts(cf STM Act, s 18A and Dict)
(1) In this Schedule--
"accident" --see clause 10(1).
"analyst" means--(a) any person employed by the Government as an analyst, or(b) any person who is an analyst within the meaning of the Poisons and Therapeutic Goods Act 1966 , or(c) a person (or a person belonging to a class or description of persons) prescribed by the statutory rules.
"approved oral fluid analysing instrument" means any instrument that--(a) is designed to ascertain, by analysis of a person's oral fluid, the presence of any prescribed illicit drug in that person's oral fluid, and(b) meets the standards prescribed by the statutory rules for such an instrument, and(c) is approved by the Governor by order published in the Gazette.
"approved oral fluid testing device" means a device that--(a) is designed to indicate the presence of any prescribed illicit drug in a person's oral fluid, and(b) meets the standards prescribed by the statutory rules for such a device, and(c) is approved by the Governor by order published in the Gazette.
"authorised sample taker" means any of the following--(a) a medical practitioner,(b) a registered nurse,(c) a person (or a person belonging to a class or description of persons) prescribed by the statutory rules as being authorised to take samples for the purposes of this Schedule.
"breath analysing instrument" means any instrument of a type approved by the Governor by order published in the Gazette as being designed to ascertain, by analysis of a person's breath, the concentration of alcohol present in that person's breath or blood.
"breath analysis" means a test carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of a person's breath, the concentration of alcohol present in that person's breath or blood.
"breath test" means a test for the purpose of indicating the concentration of alcohol present in a person's breath or blood, carried out on that person's breath by means of a device, not being a breath analysing instrument, of a type approved by the Governor by order published in the Gazette.
"hospital" means any of the following--(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997 ,(c) a private health facility within the meaning of the Private Health Facilities Act 2007 .
"oral fluid analysis" means a test carried out by an approved oral fluid analysing instrument for the purpose of ascertaining, by analysis of a person's oral fluid, the presence of prescribed illicit drugs in that person's oral fluid.
"oral fluid test" means a test carried out by an approved oral fluid testing device for the purpose of ascertaining whether any prescribed illicit drugs are present in that person's oral fluid.
"prescribed place" means any premises, institution or establishment that is prescribed by the statutory rules as a place where samples may be taken under this Schedule.
(2) Words, terms and expressions used in this Schedule that are defined for the purposes of Part 5.1 of this Act have the same meaning as they have in that Part.Note : Some of the words, terms and expressions used in this Schedule are also defined by section 4.
(cf STM Act, ss 17, 18F, 24C and 28)
(1) A police officer cannot require a person to submit to a test, analysis or assessment, or to provide a sample, under this Schedule--(a) if the person has been admitted to hospital for medical treatment unless--(i) the medical practitioner in immediate charge of the person's treatment has been notified of the intention to make the requirement, and(ii) the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person, or(b) in relation to the taking of a sample under clause 11--if an authorised sample taker has objected on the grounds that compliance would be dangerous to the person's health, or(c) if it appears to the officer that it would, by reason of injuries sustained by that person, be dangerous to the person's medical condition to submit to the test, analysis or assessment or provide the sample, or(d) at any time after the expiration of the relevant period (if any) for the test, analysis, assessment or sample concerned, or(e) at the person's home.
(2) The
"relevant period" for the purposes of subclause (1)(d) is--(a) for a breath test or breath analysis under Division 2--the period of 2 hours from the occurrence of the event by reason of which the officer was entitled under clause 3(1) to require the person to submit to a breath test, or(a1) for a blood sample taken under clause 5A--at any time after the expiration of 4 hours from the occurrence of the event that entitled the officer under clause 3(1) to require the person to submit to a breath test, or(b) for an oral fluid test given or an oral fluid sample taken under Division 3--at any time after the expiration of 2 hours from the occurrence of the event that entitled the officer under clause 6(1) to require the person to undergo an oral fluid test or provide a sample, or(c) for a blood sample taken under clause 9--at any time after the expiration of 4 hours from the occurrence of the event that entitled the officer under clause 6(1) to require the person to submit to an oral fluid test, or(d) for a blood or urine sample taken under clause 12--at any time after the expiration of 4 hours from the occurrence of the accident concerned, or(e) for a blood or urine sample taken under Division 5--at any time after the expiration of 4 hours from the occurrence of the event that entitled a police officer under clause 3(1) to require the person to submit to the breath test that entitled a police officer under clause 13(1) to require the person to submit to a sobriety assessment.
(3) This clause has effect despite any other provision of this Schedule that confers a power on a police officer to require a person to submit to a test, analysis or assessment, or to provide a sample, under this Schedule.Note : This clause does not limit or otherwise affect the duty of a medical practitioner to take a sample from an accident hospital patient under clause 11.
(cf STM Act, s 13(1) and (3A)-(5))
(1) A police officer may require a person to submit to a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that--(a) the person is or was driving a motor vehicle on a road, or(b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or(c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
(2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person's breath by requiring the person to talk into a device that indicates the presence of alcohol.
(3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
(4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3).: Maximum penalty--10 penalty units.
(cf STM Act, s 14)
(1) A police officer may exercise the powers referred to in subclause (2) in respect of a person if--(a) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of more than zero grams in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a novice driver in respect of the motor vehicle concerned, or(b) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of not less than 0.02 grams in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a special category driver in respect of the motor vehicle concerned, or(c) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of not less than 0.05 grams in 210 litres of breath or 100 millilitres of blood, or(d) the person refused to submit to a breath test required by a police officer under clause 3(1) or fails to submit to that test in accordance with the directions of the officer.
(2) A police officer may--(a) arrest a person referred to in subclause (1) without warrant, and(b) take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable, and(c) detain the person, or cause the person to be detained, at that police station or other place for the purposes of submitting to a breath analysis in accordance with this Division, and(d) if clause 5A permits the taking of a blood sample from the person--take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a prescribed place and there detain the person (or cause the person to be detained) for the purpose of the person providing such a blood sample in accordance with clause 5A.
(cf STM Act, s 15(1)-(3))
(1) A police officer may require a person who has been arrested under clause 4 to submit to a breath analysis in accordance with the directions of the officer.
(2) A breath analysis must be carried out by a police officer authorised to do so by the Commissioner of Police at or near a police station or such other place as that officer considers desirable.
(3) As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying the following--(a) the concentration of alcohol determined by the analysis to be present in that person's breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood,(b) the day on and time of the day at which the breath analysis was completed.
(1) A police officer may require a person to provide a sample of the person's blood (whether or not the person consents to the provision of the sample) in accordance with the directions of an authorised sample taker if the person has been physically unable to submit to a breath analysis as directed under this Division.
(2) An authorised sample taker is under a duty to take the sample if the authorised sample taker is informed by the police officer that the sample is required to be taken for the purposes of this clause.Note : A refusal or failure by the authorised sample taker to take a sample that the authorised sample taker is required to take under this Schedule may constitute an offence against clause 20.
(3) A blood sample taken under this clause may be used for the purpose of conducting an analysis to determine the concentration of alcohol in the blood.Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, s 18B(1), (4) and (5))
(1) A police officer may require a person to submit to one or more oral fluid tests for prescribed illicit drugs in accordance with the officer's directions if the officer has reasonable cause to believe that--(a) the person is or was driving a motor vehicle on a road, or(b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or(c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
(2) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
(3) A person must comply with any request or signal made or given to the person by a police officer under subclause (2).: Maximum penalty--10 penalty units.
(4) A police officer may direct a person who has submitted to an oral fluid test under subclause (1) to remain at or near the place of testing in accordance with the police officer's directions for such period as is reasonable in the circumstances to enable the test to be completed.
(5) A person must comply with any direction given to the person under subclause (4).: Maximum penalty--10 penalty units.
(cf STM Act, s 18C)
(1) A police officer may exercise the powers referred to in subclause (2) in respect of a person if--(a) it appears to the officer from one or more oral fluid tests carried out under clause 6(1) by the officer that the device by means of which the test was carried out indicates that there may be one or more prescribed illicit drugs present in the person's oral fluid, or(b) the person refused to submit to an oral fluid test required by an officer under clause 6(1) or fails to submit to that test in accordance with the directions of the officer.
(2) A police officer may--(a) arrest a person referred to in subclause (1) without warrant, and(b) take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the person (or cause the person to be detained) for the purpose of the person providing oral fluid samples in accordance with clause 8, and(c) if clause 9 permits the taking of a blood sample from the person--take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a prescribed place and there detain the person (or cause the person to be detained) for the purpose of the person providing such a blood sample in accordance with clause 9.
(cf STM Act, s 18D(1))
(1) A police officer may require a person who has been arrested under clause 7 to provide an oral fluid sample in accordance with the directions of the officer.
(2) An oral fluid sample taken under this clause may be used for the purpose of conducting an oral fluid analysis.
Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, s 18E(1) and (2))
(1) A police officer may require a person to provide a sample of the person's blood (whether or not the person consents to the provision of the sample) in accordance with the directions of an authorised sample taker if the person--(a) has attempted to provide an oral fluid sample as directed under clause 8(1), but(b) has been physically unable to comply with that direction (for example, because no oral fluid was physically able to be produced).
(2) An authorised sample taker is under a duty to take the sample if the authorised sample taker is informed by the police officer that the sample is required to be taken for the purposes of this clause.Note : A refusal or failure by the authorised sample taker to take a sample that the authorised sample taker is required to take under this Schedule may constitute an offence against clause 20.
(3) A blood sample taken under this clause may be used for the purpose of conducting an analysis to determine whether the blood contains any prescribed illicit drugs.Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, ss 19, 20(1) and 24A(1))
(1) In this Division--
"accident" means an accident on a road involving a motor vehicle or other vehicle or a horse.
"accident hospital patient" means a person who--(a) attends at, or is admitted into, a hospital for examination or treatment in consequence of an accident (whether occurring in this jurisdiction or elsewhere), and(b) is at least 15 years of age.
(2) A reference in this Division to a
"hospital" includes a reference to any premises, institution or establishment prescribed by the statutory rules as a hospital for the purposes of this Division.
(cf STM Act, s 20(2)-(6))
(1) Any medical practitioner by whom an accident hospital patient is attended at a hospital is under a duty to take a sample of the patient's blood for analysis as soon as practicable.
(2) The medical practitioner is under a duty to take the sample whether or not the accident hospital patient consents to the taking of the sample.
(3) If there is no medical practitioner present to attend the accident hospital patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.
(4) This clause does not require the taking of a sample of blood from an accident hospital patient unless, at the time of the accident concerned, the accident hospital patient was--(a) driving a motor vehicle involved in the accident, or(b) occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or(c) a pedestrian involved in the accident, or(d) driving or riding a vehicle (not being a motor vehicle) involved in the accident, or(e) driving or riding a horse involved in the accident, or(f) the holder of an applicable driver licence and occupying the seat in the motor vehicle next to a learner driver who was driving a motor vehicle involved in the accident.
(5) A medical practitioner or registered nurse is not required by this clause to take a sample of an accident hospital patient's blood if--(a) a sample of the accident hospital patient's blood has already been taken in accordance with this clause by another medical practitioner or nurse, or(b) the medical practitioner or nurse has been informed by a police officer (or has reasonable grounds to believe) that the sample is required to be taken for the purposes of clause 12.
(6) A blood sample taken under this clause may be used for the purpose of conducting an analysis to determine the concentration of alcohol in the blood.
Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, s 24A(2) and (3) and 24B(1) and (2))
(1) A police officer may exercise the powers referred to in subclause (2) in relation to an accident participant if--(a) the accident participant is not an accident hospital patient, and(b) the police officer believes that--(i) one or more persons have died as a result of the accident, or(ii) it is more likely than not that a person will die within 30 days as a consequence of the accident.
(2) A police officer may--(a) arrest the accident participant without warrant, and(b) take the accident participant (or cause the accident participant to be taken) with such force as may be necessary to a hospital or prescribed place, and(c) detain the accident participant (or cause the accident participant to be detained) at the hospital or other prescribed place to enable the person to provide blood and urine samples in accordance with this clause.
(3) A police officer may require an accident participant who has been arrested under subclause (2) to provide samples of the participant's blood and urine (whether or not the participant consents to the samples being taken) in accordance with the directions of an authorised sample taker.
(4) An authorised sample taker is under a duty to take the sample if the authorised sample taker is informed by the police officer that the sample is required to be taken for the purposes of this clause.Note : A refusal or failure by the authorised sample taker to take a sample that the authorised sample taker is required to take under this Schedule may constitute an offence against clause 20.
(5) A blood or urine sample taken under this clause may be used for the purpose of conducting an analysis to determine whether the blood or urine contains a drug.
(6) In this clause--
"accident" means--(a) an accident on a road involving a motor vehicle or other vehicle or a horse, or(b) an accident not on a road involving a motor vehicle.
"accident participant" means a person who--(a) at the time of an accident, was--(i) driving a motor vehicle involved in the accident, or(ii) occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or(iii) the holder of an applicable driver licence and occupying the seat in the motor vehicle next to a learner driver who was driving a motor vehicle involved in the accident, and(b) is at least 15 years old.
Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, s 25)
(1) A police officer may require a person to submit to an assessment of the person's sobriety in accordance with the directions of the officer if--(a) the person has submitted to a breath test in accordance with Division 2 by reason of the occurrence of an event referred to in clause 3(1)(a) or (b), and(b) the result of the test does not permit the person to be required to submit to a breath analysis.
(2) A person cannot be required to submit to a sobriety assessment unless--(a) a police officer has a reasonable belief that the person may be under the influence of a drug--(i) by the way in which the person--(A) is or was driving a motor vehicle on a road, or(B) is or was occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion, or(ii) by the behaviour, condition or appearance of the person at the time of or after the relevant event referred to in subclause (1)(a), and(b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test.
Note : Clause 2(2)(e) provides for the period after the expiration of which a police officer cannot require a person who has been required to submit to a sobriety assessment, to provide a blood or urine sample under clause 15.
(cf
STM Act, s 26)
If the person refuses to submit to a sobriety assessment under this Division
or, after the assessment has been made, a police officer has a reasonable
belief that the person is under the influence of a drug, the police officer
may--
(a) arrest that person without warrant, and
(b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a prescribed place and there detain the person (or cause the person to be detained) for the purpose of providing a blood or urine sample in accordance with this Division.
(cf STM Act, s 27(1) and (2))
(1) A police officer may require a person who has been arrested under clause 14 to provide samples of the person's blood and urine (whether or not the person consents to them being taken) in accordance with the directions of an authorised sample taker.
(2) An authorised sample taker is under a duty to take the sample if the authorised sample taker is informed by the police officer that the sample is required to be taken for the purposes of this clause.Note : A refusal or failure by the authorised sample taker to take a sample that the authorised sample taker is required to take under this Schedule may constitute an offence against clause 20.
(3) A blood or urine sample taken under this clause may be used for the purpose of conducting an analysis to determine whether the blood or urine contains a drug.
Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this clause.
(cf STM Act, ss 13(2) and (3),15(4) and (5), 18B(2) and (3) and 29(1) and (3))
(1) A person must not, when required to do so by a police officer under this Part, refuse or fail--(a) to submit to a breath test under Division 2 in accordance with the officer's directions, or(b) to submit to a breath analysis under Division 2 in accordance with the officer's directions, or(c) to submit to an oral fluid test under Division 3 in accordance with the officer's directions, or(d) to submit to a sobriety assessment under Division 5 in accordance with the officer's directions.: Maximum penalty--(a) in the case of a breath test, oral fluid test or sobriety assessment--10 penalty units, or(b) in the case of a breath analysis--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(2) It is a defence to a prosecution for an offence against subclause (1) if the defendant proves to the court's satisfaction that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to the test, analysis or assessment concerned.
(cf STM Act, ss 18D(2) and (3), 18E(9), 22(2)(a) and (3)(a), 24D(1)(a) and (2) and 29(2)(a) and (3))
(1) A person must not, when required to do so by a police officer under this Part, refuse or fail--(a1) to submit to the taking of a blood sample under clause 5A in accordance with the directions of the sample taker, or(a) to submit to the taking of a blood sample under clause 9, 12 or 15 in accordance with the directions of the sample taker, or(b) to provide an oral fluid sample under Division 3 for an oral fluid analysis in accordance with the directions of the officer, or(c) to provide a urine sample in accordance with the directions of the sample taker.: Maximum penalty--(a) in the case of an offence against subclause (1)(a) in relation to a requirement to provide a sample under clause 9 or of an offence against subclause (1)(b)--30 penalty units (in the case of a first offence) or 50 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence), or(b) in any other case--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(2) A person (other than a secondary participant in an accident) must not, by reason of the person's behaviour, prevent a sample taker from taking a sample of the person's blood for the purposes of clause 11.: Maximum penalty--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(3) A secondary participant in an accident must not, by reason of the person's behaviour, prevent a sample taker from taking a sample of the person's blood for the purposes of clause 11.: Maximum penalty--30 penalty units.
(4) It is a defence to a prosecution for an offence against subclause (1) if the defendant proves to the court's satisfaction that the defendant was unable on medical grounds, at the time the person was required to do so, to submit to the taking of the sample or to provide the sample concerned.
(5) In this clause--
"sample taker" , in relation to a sample, means an authorised sample taker who is required to take the sample concerned under this Part.
"secondary participant" in an accident means a person involved in the accident who was--(a) a pedestrian, or(b) driving or riding a vehicle (other than a motor vehicle or a horse).
(cf STM Act, ss 16, 18G(1)-(3), 22(2)(b), (3)(b) and (4), 24D(1)(b) and (3) and 29(2)(b) and (c) and (4))
(1) A person (other than a secondary participant in an accident) must not wilfully do anything--(a) to alter the concentration of alcohol in the person's breath or blood between the time of the event referred to in clause 3(1)(a), (b) or (c) in respect of which the person has been required by a police officer to submit to a breath test under Division 2 and the time when the person submits to that test, or(b) to alter the concentration of alcohol in the person's breath or blood between the time of the event referred to in clause 3(1)(a), (b) or (c) in respect of which the person has been required by a police officer to submit to a breath test under Division 2 and the time when the person submits to a breath analysis or provides a sample of the person's blood under that Division, or(c) to introduce, or alter the amount of, any prescribed illicit drug in the person's oral fluid between the time of the event referred to in clause 6(1)(a), (b) or (c) in respect of which the person has been required by a police officer to submit to an oral fluid test under Division 3 and the time when the person submits to that test, or(d) to introduce, or alter the amount of, any prescribed illicit drug in the person's oral fluid or blood between the time of the event referred to in clause 6(1)(a), (b) or (c) in respect of which the person has been required by a police officer to submit to an oral fluid test under Division 3 and the time when the person provides a sample of the person's oral fluid or blood under that Division, or(e) in the case of an accident involving the person--to alter the concentration of alcohol in the person's blood (except at the direction or under the supervision of an appropriate health professional) between the time of the accident concerned and the taking of a sample of the person's blood in accordance with Division 4, or(f) to introduce, or alter the amount of, a drug in the person's blood or urine between the time of the event that entitled a police officer under clause 3(1) to require the person to submit to the breath test that entitled a police officer under clause 13(1) to require the person to submit to a sobriety assessment and the time when the person submits to that assessment, or(g) to introduce, or alter the amount of, a drug in the person's blood or urine between the time of the event that entitled a police officer under clause 3(1) to require the person to submit to the breath test that entitled a police officer under clause 13(1) to require the person to submit to a sobriety assessment and the time when the person provides a sample that the person is required to provide under Division 5.: Maximum penalty--(a) in the case of an offence against subclause (1)(a), (b), (e), (f) or (g)--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or(b) in the case of an offence against subclause (1)(c) or (d)--30 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence).
(2) A secondary participant in an accident must not do anything to alter the concentration of alcohol in the person's blood (except at the direction or under the supervision of an appropriate health professional) between the time of the accident concerned and the taking of a sample of the person's blood in accordance with clause 11.: Maximum penalty--30 penalty units.
(3) It is a defence--(a) in the case of the prosecution of a person for an offence against subclause (1)(c)--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 2 hours after the time of the event referred to in clause 6(1)(a), (b) or (c), or(b) in the case of the prosecution of a person for an offence against subclause (1)(d) in relation to oral fluid--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 2 hours after the time of the event referred to in clause 6(1)(a), (b) or (c), or(c) in the case of the prosecution of a person for an offence against subclause (1)(d) in relation to blood--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 4 hours after the time of the event referred to in clause 6(1)(a), (b) or (c), or(d) in the case of the prosecution of a person for an offence against subclause (1)(e) or (2) in relation to a non-fatal accident--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 2 hours after the accident occurred, or(e) in the case of the prosecution of a person for an offence against subclause (1)(e) or (2) in relation to a fatal accident--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 4 hours after the accident occurred, or(f) in the case of the prosecution of a person for an offence against subclause (1)(f)--if the person proves to the court's satisfaction that the thing that the person is accused of doing was done more than 4 hours after the time of the event that entitled a police officer under clause 3(1) to require the person to submit to the breath test that entitled a police officer under clause 13(1) to require the person to submit to the sobriety assessment.
(4) In this clause--
"appropriate health professional" means a medical practitioner or registered nurse (or a person belong to a class or description or persons prescribed by the statutory rules) who is responsible for the proper care and treatment of the person.
"secondary participant" in an accident means a person involved in the accident who was--(a) a pedestrian, or(b) driving or riding a vehicle (other than a motor vehicle or a horse).
(cf STM Act, ss 18G(6) and (7), 22(1), 24D(6) and 29(7))
(1) A person must not hinder or obstruct a police officer in attempting to administer an oral fluid test on, or take a sample of oral fluid from, any other person in accordance with Division 3.: Maximum penalty--20 penalty units.
(2) A person must not hinder or obstruct a sample taker in attempting to take a sample of the blood or urine of any other person in accordance with this Part.: Maximum penalty--20 penalty units.
(3) In this clause--
"sample taker" , in relation to a sample, means an authorised sample taker who is required to take the sample concerned under this Part.
(cf STM Act, ss 18G(4)(a) and (5), 21, 24D(4)(a) and (5) and 29(5)(a) and (6))
(1) An authorised sample taker must not refuse or fail to take a blood or urine sample that the authorised sample taker is required to take under this Part.: Maximum penalty--20 penalty units.
(2) It is a defence to a prosecution for an offence against subclause (1) if the defendant proves to the court's satisfaction that--(a) the defendant believed on reasonable grounds that the taking of the sample from the person from whom the sample was to be taken would be prejudicial to the proper care and treatment of the person, or(b) the defendant believed on reasonable grounds that the person was less than 15 years of age, or(c) the defendant was, because of the behaviour of the person, unable to take the sample, or(d) there was other reasonable cause for the defendant not to take the sample.
(3) Without limiting subclause (2), it is also a defence to a prosecution for an offence against subclause (1) in relation to a failure to take a sample under clause 11 from a person involved in an accident if the defendant proves to the court's satisfaction that--(a) the defendant did not believe that the person had attended at or been admitted into the hospital in consequence of an accident involving a vehicle or horse, or(b) without limiting paragraph (a), the defendant did not believe on reasonable grounds that the person was a person from whom the defendant was required under clause 11 to take a sample of blood, or(c) the requirement that the defendant take a sample of blood from the person arose after the expiration of 12 hours after the accident concerned occurred or the defendant believed on reasonable grounds that the requirement arose after the expiration of that period, or(d) the defendant did not know (and could not with reasonable diligence have ascertained) which of 2 or more persons involved in an accident involving a vehicle or horse was or were a person or persons from whom the defendant was required by clause 11 to take a sample or samples of blood.
(cf STM Act, s 18(1) and (2))
(1) A person who is required by a police officer under Division 2 of Part 2 to submit to a breath analysis may request the police officer to arrange for an authorised sample taker to take, in the presence of a police officer, a sample of that person's blood, for analysis in accordance with Part 4 to determine the concentration of alcohol in the blood at the person's own expense.Note : Part 4 provides for the procedures in relation to the taking and analysis of samples taken under this subclause.
(2) A request by a person under subclause (1), or the taking of a sample of that person's blood, does not excuse that person from the obligation imposed on the person to submit to a breath analysis in accordance with Division 2 of Part 2.
(cf STM Act, ss 18(5), 18D(5), 18E(5), 23(3), 24B(5) and 27(2C))
(1) A person from whom a blood, urine or oral fluid sample was taken under this Schedule may apply to an authorised laboratory for a portion of the sample to be sent for analysis, at that person's own expense, to a medical practitioner or laboratory nominated by the person.
(2) An application under subclause (1) must be made--(a) in the case of a blood or urine sample--within 12 months after the sample was taken, or(b) in the case of an oral fluid sample--within 6 months, or such longer period as may be prescribed by the statutory rules, after the sample was taken.
(3) In this clause--
"authorised laboratory" means a laboratory prescribed by the statutory rules for the purposes of this clause.
(cf STM Reg, cll 130(1) and 130A(1))
In this Part--
"prescribed laboratory" means a laboratory prescribed by the statutory rules
for the purposes of this Part.
"security box" means a locked security box of a type approved by the
Commissioner of Police.
(cf STM Act, ss 18(3), (4) and (5A), 18E(3), (4) and (5A), 23(1), (2) and (4)-(6), 24B(3), (4) and (5A) and 27(2A), (2B) and (2D); STM Reg, cl 130(1))
(1) This clause applies in relation to the taking of a blood sample under this Schedule by an authorised sample taker (a
"blood sample taker" ).
(2) A blood sample taker must--(a) place the sample into a container, and(b) fasten and seal the container, and(c) mark or label the container for future identification, and(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's blood.
(3) The blood sample must be placed in a security box (whether by the blood sample taker, a police officer or a person acting under the direction of the sample taker or officer) as soon as is reasonably practicable after the procedures in subclause (2) have been completed.
(4) The blood sample must be kept in the security box until it is submitted to a prescribed laboratory for analysis.
(5) Subject to subclause (7), the blood sample taker must make arrangements for the blood sample to be submitted to a prescribed laboratory for analysis by an analyst to determine--(a) the concentration of alcohol in the blood if that is a purpose for which the sample may be used, or(b) whether the blood contains a prescribed illicit drug if that is a purpose for which the sample may be used, or(c) whether the blood contains another drug if that is a purpose for which the sample may be used.Note : See Part 2 for the purposes for which samples taken under that Part may be used.
(6) A medical practitioner of another jurisdiction who, under a law of the other jurisdiction that substantially corresponds to clause 11, takes a sample of blood from a person attended by the medical practitioner in consequence of an accident in this jurisdiction may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of alcohol in the blood.
(7) A police officer may make the arrangements referred to in subclause (5) instead of the blood sample taker. The making of such arrangements under this subclause operates to discharge the duty of the blood sample taker under subclause (5) to make those arrangements.
(8) The following additional provisions apply in relation to a sample taken under clause 11--(a) a police officer may arrange for a blood sample taken from a person under clause 11 to be submitted to a prescribed laboratory for analysis to determine the concentration of alcohol, or of alcohol and other drugs, in the blood,(b) a police officer may not make arrangements under paragraph (a) for analysis of a blood sample to determine the concentration in the person's blood of a drug (other than alcohol) unless--(i) the accident that caused the person to attend at or be admitted to hospital was fatal and the person was a person referred to in clause 11(4)(a), (b) or (f), or(ii) the officer has reasonable grounds to believe that, at the time of the accident concerned, the person was under the influence of a drug (other than alcohol) and either no police officer attended the scene of the accident or there was no reasonable opportunity for police officers attending the scene to require the person to submit to a sobriety assessment under Division 5 of Part 2.
(cf STM Act, ss 24B(6) and (7) and 27(3) and (4); STM Reg, cl 130(1))
(1) This clause applies in relation to the taking of a urine sample under this Schedule by an authorised sample taker (a
"urine sample taker" ).
(2) A urine sample taker must--(a) place the sample into a container, and(b) fasten and seal the container, and(c) mark or label the container for future identification, and(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's urine, and(e) make appropriate arrangements for the urine sample to be submitted to a prescribed laboratory for analysis by an analyst.
(3) The urine sample must be placed in a security box (whether by the urine sample taker, a police officer or a person acting under the direction of the sample taker or officer) as soon as is reasonably practicable after the procedures in subclause (2) have been completed.
(4) The urine sample must be kept in the security box until it is submitted to a prescribed laboratory for analysis.
(5) Subject to subclause (6), the urine sample taker must make arrangements for the urine sample to be submitted to a prescribed laboratory for analysis by an analyst to determine whether the urine contains a drug if that is a purpose for which the sample may be used.Note : See Part 2 for the purposes for which samples taken under that Part may be used.
(6) A police officer may make the arrangements referred to in subclause (5) instead of the urine sample taker. The making of such arrangements under this subclause operates to discharge the duty of the urine sample taker under subclause (5) to make those arrangements.
(cf STM Act, s 18D(4)-(4B); STM Reg, cl 130A(1))
(1) A police officer who is provided with an oral fluid sample under clause 8(1) must--(a) place the sample into a container, and(b) fasten and seal the container, and(c) mark or label the container for future identification, and(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's oral fluid.
(2) The oral fluid sample must be placed in a security box (whether by the police officer or a person acting under the direction of the officer) as soon as is reasonably practicable after the procedures in subclause (1) have been completed.
(3) The oral fluid sample must be kept in the security box until it is submitted to a prescribed laboratory for analysis.
(4) The police officer must make arrangements for the oral fluid sample to be submitted to a prescribed laboratory for an oral fluid analysis.
(5) A police officer may carry out an oral fluid test on a portion of an oral fluid sample provided under clause 8(1) before dealing with the remaining portion of the sample in accordance with subclause (1).
(6) If an oral fluid test is carried out under subclause (5) on a portion of an oral fluid sample, a reference in this clause and clauses 32 and 36 to the sample that is required under subclause (4) to be submitted to a laboratory is taken to be a reference to the remaining portion of the sample.
(cf STM Act, ss 18(6) and (7), 18D(6) and (7), 18E(6) and (8), 23(7) and (8), 24B(8), (10) and (11) and 27(5) and (7))
(1) Subject to subclause (2), an analyst at the laboratory to which a sample is submitted under this Part may carry out an analysis of the sample, or of a portion of the sample, to determine--(a) in the case of a blood sample submitted for alcohol analysis--the concentration of alcohol in the blood, or(b) in the case of a blood sample submitted for drug analysis--whether the blood contains a prescribed illicit drug or other drug (as the case requires), or(c) in the case of an oral fluid sample submitted for an oral fluid analysis--whether the oral fluid contains a prescribed illicit drug, or(d) in the case of a urine sample--whether the urine contains a drug.
(2) In the case of a blood or urine sample taken for the purposes of clause 12 that has been submitted for analysis, the analyst may carry out an analysis of the sample only if a police officer has notified the laboratory in writing that a person involved in the accident that led to the sample of blood or urine being submitted for analysis--(a) has died within 30 days of the accident, or(b) has died during the period beginning 30 days after the accident and ending 12 months after the accident and a medical practitioner has given advice that the person died as a result of the accident.
(3) A blood or urine sample of the kind referred to in subclause (2) must be destroyed by or at the direction of the analyst who has custody of the sample without being analysed if, at the expiry of 13 months after the accident concerned, no police officer has made a notification relating to a death under subclause (2).
(4) An analysis referred to in subclause (1) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample to be analysed and the breaking of any seal securing the sample) may be done, by a person acting at the direction or under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.
(cf STM Reg, cll 130(2) and (3) and
130A(2))
A person must not destroy or otherwise interfere or tamper with a sample, or a
portion of a sample, of a person's blood or urine taken under Part 2 except as
follows--
(a) after the expiration of 13 months (in the case of a sample taken under clause 12) or 12 months (in any other case) commencing on the day the sample was taken,Note : Clause 27(3) provides that a blood or urine sample that has been provided under clause 12 must be destroyed by or at the direction of the analyst who has custody of the sample without being analysed if, at the expiry of 13 months after the accident concerned, no police officer has made a notification relating to a death.
(b) in the case of a sample--by or at the direction of an analyst--(i) so as to permit a portion of the sample to be sent for analysis by a medical practitioner or laboratory nominated, under clause 22, in an application made under that clause by the person from whom the sample was taken, or(ii) in the course of, or on completion of, an analysis of the sample,
(c) in the case of a portion of a sample--by or at the direction of the medical practitioner or laboratory nominated under clause 22 by the person from whom the sample was taken.
: Maximum penalty--20 penalty units.
(cf STM Act, ss
18G(4)(b), 23(1) and (2), 24D(4)(b) and 29(5)(b))
An authorised sample taker who takes a blood or urine sample for the purposes
of a provision of this Schedule must--
(a) in the case of a blood sample--comply with the requirements of clause 24(2) and (3), or
(b) in the case of a urine sample--comply with the requirements of clause 25(2) and (3).
: Maximum penalty--20 penalty units.
(cf STM Act, s 18H)
(1) A person must not intentionally or recklessly--(a) supply a drug testing sample (or cause or permit a drug testing sample to be supplied) to a person for analysis for a non-drug testing purpose, or(b) carry out an analysis (or cause or permit an analysis to be carried out) of a drug testing sample for a non-drug testing purpose, or(c) include information on a DNA database (or cause information to be included on a DNA database) if that information has been derived from an analysis of a drug testing sample for a non-drug testing purpose.: Maximum penalty--30 penalty units.Note : For example, deriving a DNA profile from the sample is a non-drug testing purpose.
(2) In this clause--
"DNA database" means any database containing DNA data that is kept under a law of this or any other jurisdiction, and includes any DNA database system within the meaning of the Crimes (Forensic Procedures) Act 2000 .
"drug testing sample" means a sample of oral fluid or blood taken from, or furnished or provided by, a person under Division 3 of Part 2.
"non-drug testing purpose" , in relation to the analysis of a drug testing sample, means a purpose other than determining whether any prescribed illicit drugs are present in the sample.
(cf STM Act, s 32)
(1) This clause applies to any proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood).
(2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged as determined by--(a) a breath analysis carried out by a police officer authorised to do so by the Commissioner of Police, or(b) an analysis of the person's blood under this Schedule.
(3) In any such proceedings, the concentration of alcohol so determined is taken to be the concentration of alcohol in the person's breath or blood at the time of the occurrence of the relevant event referred to in clause 3(1)(a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant's breath or blood at the time concerned was--(a) in the case of an offence against section 110(1)--zero grams of alcohol in 210 litres of breath or 100 millilitres of blood, or(b) in the case of an offence against section 110(2)--less than 0.02 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or(c) in the case of an offence against section 110(3)--less than 0.05 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or(d) in the case of an offence against section 110(4)--less than 0.08 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or(e) in the case of an offence against section 110(5)--less than 0.15 grams of alcohol in 210 litres of breath or 100 millilitres of blood.
(4) Nothing in subclause (3) affects the operation of section 110(6) and (7).
(cf STM Act, ss 33A and 33C)
(1) This clause applies to any proceedings for an offence against section 111 (Presence of certain drugs (other than alcohol) in oral fluid, blood or urine).
(2) In proceedings to which this clause applies in relation to a prescribed illicit drug--(a) evidence may be given of the presence of a prescribed illicit drug in the oral fluid of the person charged as determined by an oral fluid analysis under this Schedule of a sample of the person's oral fluid, and(b) the presence of a prescribed illicit drug in a person's oral fluid so determined is taken to show the presence of the drug at the time of the occurrence of the relevant event referred to in section 111(1)(a), (b) or (c) if the oral fluid sample analysed was provided within 2 hours after the event, unless the defendant proves the absence of the drug when the event occurred.
(3) In proceedings to which this clause applies--(a) evidence may be given of the presence of a prescribed illicit drug or morphine in the blood or urine of the person charged as determined by an analysis of the person's blood or urine under this Schedule, and(b) the drug the presence of which is so determined is taken to be so present at the time of the occurrence of the relevant event referred to in section 111(1)(a), (b) or (c) or (3)(a), (b) or (c) if the blood or urine sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug when the event occurred.
(1) This clause applies to proceedings for an offence against section 111A in relation to evidence of alcohol concentration.
(2) Evidence may be given in the proceedings of the concentration of alcohol present in the breath or blood of the person charged as determined by--(a) a breath analysis carried out by a police officer authorised to do so by the Commissioner of Police, or(b) an analysis of the person's blood under this Schedule.
(3) In the proceedings, the concentration of alcohol determined under subsection (2) is taken to be the concentration of alcohol in the person's breath or blood at the time of the occurrence of the relevant event referred to in clause 3(1)(a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant's breath or blood at the time was--(a) less than an amount in the range of the prescribed concentration of alcohol relevant to the offence charged, or(b) zero grams of alcohol in 210 litres of breath or 100 millilitres of blood.
(4) Nothing in subclause (3) affects the operation of section 111A(5).
(1) This clause applies to proceedings for an offence against section 111A in relation to evidence of a prescribed illicit drug.
(2) In the proceedings in relation to a prescribed illicit drug--(a) evidence may be given of the presence of a prescribed illicit drug in the oral fluid of the person charged as determined by an oral fluid analysis under this Schedule of a sample of the person's oral fluid, and(b) the presence of a prescribed illicit drug in a person's oral fluid determined by an oral fluid analysis under this Schedule is taken to show the presence of the drug at the time of the occurrence of the relevant event referred to in section 111A(1), (2) or (3) if the oral fluid sample analysed was provided within 2 hours after the event, unless the defendant proves the absence of the drug when the event occurred.
(3) In the proceedings in relation to a prescribed illicit drug--(a) evidence may be given of the presence of a prescribed illicit drug in the blood or urine of the person charged as determined by an analysis of the person's blood or urine under this Schedule, and(b) the drug the presence of which is determined by an analysis of the person's blood or urine under this Schedule is taken to be present at the time of the occurrence of the relevant event referred to in section 111A(1), (2) or (3) if the blood or urine sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug when the event occurred.
(cf STM Act, s 34)
(1) This clause applies to any proceedings for an offence against section 112(1) (Use or attempted use of a vehicle under the influence of alcohol or any other drug).
(2) In proceedings to which this clause applies--(a) evidence may be given of the presence of a drug, or the presence of a particular concentration of drug, in the blood or urine of the person charged, as determined pursuant to an analysis under this Schedule of a sample of the person's blood or urine, and(b) the drug the presence of which is so determined or the particular concentration of the drug the presence of which is so determined (as the case may be) is to be taken to have been present in the blood or urine of that person when the event referred to in section 112(1)(a) or (b) (as the case may be) occurred if the sample was taken within 4 hours after the event, unless the defendant proves the absence of the drug, or the presence of the drug in a different concentration, when the event occurred.
(cf STM Act, s 37)
(1) For the purposes of any contract of insurance, any of the following facts are not admissible as evidence of the fact that a person was at any time under the influence of or in any way affected by intoxicating liquor or incapable of driving or of exercising effective control over a motor vehicle--(a) the fact that a person has submitted to a breath test or breath analysis under this Schedule,(b) the result of a breath test or breath analysis,(c) the fact that a person has submitted to an oral fluid test or provided a sample for oral fluid analysis under this Schedule,(d) the result of an oral fluid test or oral fluid analysis,(e) the fact that a person has been convicted of an offence against any of the following provisions--(i) section 110,(ii) section 111,(iia) section 111A,(iii) clause 16,(iv) clause 17,(v) clause 18.
(2) For the purposes of any contract of insurance, the results of any analysis of blood or urine under this Schedule are not admissible as evidence of the fact that a person was at any time under the influence of or in any way affected by intoxicating liquor or any other drug or incapable of driving or of exercising effective control over a vehicle or horse.
(3) Nothing in subclause (1) or (2) precludes the admission of any other evidence to show a fact referred in the subclause.
(4) The provisions of this clause have effect despite anything contained in any contract of insurance.
(5) Any covenant, term, condition or provision in any contract of insurance is void--(a) to the extent that the operation of this clause is excluded, limited, modified or restricted, or(b) to the extent that it purports to exclude or limit the liability of the insurer in the event of any person being convicted of--(i) an offence against section 110, 111(1) or (3) or 111A, or(ii) an offence against a provision of Part 2.
(6) However, nothing in subclause (5) precludes the inclusion in a contract of insurance of any other covenant, term, condition or provision under which the liability of the insurer is excluded or limited.
(cf STM Act, s 33(1)-(3))
(1) This clause applies to any of the following proceedings--(a) proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood),(a1) proceedings for a combined alcohol and drug driving offence,(b) proceedings for an offence against clause 3(4), 16(1)(a) or (b) or 18(1)(a) or (b).
(2) A certificate purporting to be signed by a police officer certifying the following particulars is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in or by the certificate--(a) the officer is authorised by the Commissioner of Police to carry out a breath analysis,(b) a person named in the certificate submitted to a breath analysis,(c) the apparatus used by the officer to make the breath analysis was a breath analysing instrument within the meaning of this Act,(d) the analysis was made on the day and completed at the time stated in the certificate,(e) a concentration of alcohol determined by that breath analysing instrument and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood was present in the breath or blood of that person on the day and at the time stated in the certificate,(f) a statement in writing required by clause 5(3) was delivered in accordance with that subclause.
(3) A certificate purporting to be signed by the Commissioner of Police that the police officer named in the certificate is authorised by the Commissioner of Police to carry out a breath analysis is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate.
(4) Evidence of the condition of a breath analysing instrument, or of the manner in which it was operated, is not required in proceedings to which this clause applies unless evidence sufficient to raise doubt that the instrument was in proper condition and properly operated has been adduced.
(cf STM Act, ss 33(4)-(7), 33B, 33D and 35)
(1) Proceedings to which clause applies This clause applies to any of the following proceedings--(a) proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood),(b) proceedings for an offence against section 111 (Presence of certain drugs (other than alcohol) in oral fluid, blood or urine),(b1) proceedings for a combined alcohol and drug driving offence,(c) proceedings for an offence against section 112(1) (Use or attempted use of a vehicle under the influence of alcohol or any other drug).
(2) Certificates from sample takers A certificate purporting to be signed by an authorised sample taker (the
"certifier" ) certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate--(a) that the certifier was an authorised sample taker who attended a specified person,(b) that the certifier took a sample of the person's blood or urine in accordance with this Schedule, and any relevant provisions of the statutory rules, on the day and at the time stated in the certificate,(c) that the certifier dealt with the sample in accordance with this Schedule and any relevant provisions of the statutory rules,(d) that the certifier used equipment of a specified description in so taking and dealing with the sample,(e) that the container was sealed, and marked or labelled, in a specified manner.
(3) A certificate purporting to be signed by a police officer certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate--(a) that the officer took a sample of the oral fluid of the person named in the certificate in accordance with this Schedule, and any relevant provisions of the statutory rules, on the day and at the time stated in the certificate,(b) that the officer dealt with the sample in accordance with this Schedule and any relevant provisions of the statutory rules,(c) that the container was sealed, and marked or labelled, in a specified manner,(d) that the officer arranged for the sample to be submitted for oral fluid analysis to determine the presence of any prescribed illicit drugs in the oral fluid.
(4) Certificates from police officers about arrangements for analysis A certificate purporting to be signed by a police officer certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate--(a) that the officer received a sample of a specified person's blood or urine in accordance with this Schedule for submission to a prescribed laboratory for analysis,(b) that the officer arranged for the sample to be submitted for analysis by an analyst to determine the concentration of alcohol in the sample or the presence or concentration of another drug in the sample (as the case requires),(c) that the sample was in a container which was sealed, or marked or labelled, in a specified manner.
(5) Certificates from analysts A certificate purporting to be signed by an analyst certifying any one or more of the following matters--(a) that a sample of a specified person's blood, urine or oral fluid was received, on a specified day, in a container submitted for analysis under this Schedule,(b) that the container, as received, was sealed, and marked or labelled, in a specified manner,(c) that on receipt of the container, the seal was unbroken,(d) in the case of an analysis of a blood sample carried out to determine the concentration of alcohol in the blood of the specified person--(i) that an analysis of the sample was carried out to determine the concentration of alcohol in the sample, and(ii) that the concentration of alcohol determined pursuant to the analysis and expressed in grams of alcohol in 100 millilitres of blood was present in that sample,(e) in the case of an analysis of a blood or urine sample carried out to determine the presence or concentration of a prescribed illicit drug or other drug in the blood or urine of the specified person--(i) that an analysis of the sample was carried out to determine whether any prescribed illicit drug or other drug (as the case requires) was present in the sample, and(ii) that a specified prescribed illicit drug or other drug (as the case requires) ascertained pursuant to the analysis was present in that sample and, if so certified, was present in that sample in a specified concentration,(f) in the case of an oral fluid analysis carried out on the oral fluid of the specified person--(i) that an oral fluid analysis of the sample was carried out to determine the presence of any prescribed illicit drugs in the sample, and(ii) that a specified prescribed illicit drug was determined pursuant to the oral fluid analysis to be present in that sample,(g) that the analyst was, at the time of the analysis, an analyst within the meaning of this Schedule,is admissible and is prima facie evidence--(h) of the particulars certified in and by the certificate, and(i) that the sample was a sample of the blood, urine or oral fluid of that specified person, and(j) that the sample had not been tampered with before it was received.
(6) Certificates from interstate sample takers and analysts A certificate purporting to be signed by an interstate sample taker or interstate analyst in accordance with a provision of a law of another jurisdiction that substantially corresponds to the relevant provisions of this Schedule concerning sample taking or analysis is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate.
(7) An analysis to which a certificate referred to in subclause (6) relates is taken to be an analysis under this Schedule.
(8) Special provisions regarding proceedings for offences against section 112 Subclauses (1)-(3)--(a) do not apply to proceedings for an offence against section 112(1) brought on a charge that, by the operation of clause 40(1), cannot be laid, and(b) do not enable evidence to be given of or in relation to--(i) the presence of a drug other than alcohol, or(ii) the presence of a particular concentration of a drug other than alcohol,in the blood of a person charged with an offence against section 112(1), as determined by an analysis under this Schedule, unless the court is satisfied that the analysis was not arranged in contravention of clause 24(8).
(9) Definitions In this clause--
"interstate analyst" means a person (however described) who analyses, or who supervised or directed the analysis of, a blood, urine or oral fluid sample in another jurisdiction.
"interstate sample taker" means a person (however described) who takes, or who supervised or directed the taking of, a blood, urine or oral fluid sample in another jurisdiction.
(cf STM Act, s 36)
(1) This clause applies to a certificate under this Part if--(a) evidence is given by the certificate in proceedings in which evidence is permitted to be given of the results of an analysis undertaken for the purposes of this Act of a sample of a person's blood or urine, and(b) the certificate is to the effect that alcohol or another specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration.
(2) A certificate to which this clause applies is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration.
(3) Evidence given by a certificate to which this clause applies is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of this Act.
(cf STM Act, s 39A)
(1) Nothing in this Act prevents a police officer requiring a person to submit to both breath testing and oral fluid testing.
(2) If a police officer requests or signals a driver of a motor vehicle to stop for the purpose of both clause 3 (Power to conduct random breath testing) and clause 6 (Power to conduct random oral fluid testing) and the driver fails to comply with the request or signal, the driver may be convicted of an offence against clause 3(4) or an offence against clause 6(3), but not both.
(cf STM Act, s 73)
(1) If a sample of blood is provided in accordance with clause 11--(a) the sample or any part of it, and(b) any sample of saliva voluntarily provided at the same time,may be used in any research program that is related to safety and has been approved by the Minister.
(2) The results of research carried out under this clause with respect to the blood or saliva of a person are not admissible as evidence of the presence of any drug in the blood or saliva of the person.
(3) A person who carries out research under this clause with respect to blood or saliva must not carry out the research in such a way as identifies the person who provided the blood or saliva.: Maximum penalty--20 penalty units.
(cf STM Act, s 38)
(1) A person is not liable to be convicted of both an offence against section 112(1) and a related alcohol or drug offence if the offences arose directly or indirectly out of the same circumstances.
(2) A person who--(a) is required by a police officer to submit to a breath test by reason of the occurrence of an event referred to in clause 3(1)(a), (b) or (c) and, as a consequence, to submit to a breath analysis or to provide a sample of the person's blood under Division 2 of Part 2, and(b) submits to the breath analysis in accordance with the directions of a police officer, or to the taking of a blood sample in accordance with the directions of an authorised sample taker,cannot be charged with any of the following offences against section 112(1)--(c) the offence of driving a motor vehicle, at the time of that event, while the person was under the influence of alcohol,(d) the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, while the person was under the influence of alcohol.
(3) A person who has had a sample of blood taken in accordance with clause 11 because of an accident is not to be charged with an offence against section 112(1) if it is alleged as a component of the offence that the person was under the influence of alcohol and the offence relates to the same accident.
(3A) A person--(a) who submits to the taking of a blood sample under clause 5A, or(b) who is prosecuted for failing or refusing to submit to the taking of a blood sample under clause 5A but who is able to establish the defence under clause 17(4) in relation to the prosecution,is not liable to be convicted of an offence against clause 16(1)(b) in relation to the person's inability to submit to a breath analysis that gave rise to the requirement to provide a blood sample.
(3B) A person is not liable to be convicted of both an offence against clause 16(1)(b) and an offence against clause 17(1)(a1) if the offences arose directly or indirectly out of the same circumstances.
(4) In this clause--
"related alcohol or drug offence" means an offence against any of the following provisions--(a) section 110,(b) section 111,(b1) section 111A,(c) clause 16,(d) clause 17,(e) clause 18.
(cf STM Act, s 39)
(1) An authorised sample taker does not incur any civil or criminal liability in respect of anything properly and necessarily done by the sample taker in the course of taking a sample of blood or urine from a person for the purpose of its being used by an analyst to determine the concentration of alcohol or detect the presence of any drug if the authorised sample taker--(a) believed on reasonable grounds that the authorised sample taker was required under this Schedule to take the sample of blood or urine from the person, or(b) believed on reasonable grounds that the person was involved in an accident (whether in this jurisdiction or elsewhere) and the authorised sample taker did not know, and could not with reasonable diligence have ascertained, whether or not the authorised sample taker was required to take the sample from the person under Division 4 of Part 2, or(c) was informed by a police officer that the person was a person from whom the sample taker was required under this Schedule to take the sample of blood or urine.
(2) Subclause (1) extends to any person acting at the direction or under the supervision of the sample taker as referred to in clause 42.
(3) This clause applies despite section 275.
(cf STM Act, ss 18E(7), 24, 24B(9) and 27(6))
(1) Any duty of an authorised sample taker under this Schedule and any relevant provisions of the statutory rules may be performed by a person acting at the direction or under the supervision of the authorised sample taker.
(2) A duty performed by any such person is taken to have been performed by the authorised sample taker.