Queensland Consolidated Acts

TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 - SECT 80

80 Breath and saliva tests, and analysis and laboratory tests

(1) Definitions In this section—

"authorised police officer" means any police officer authorised by the commissioner under subsection (8G) to operate either or both of the following—

(a) a breath analysing instrument;

(b) a saliva analysing instrument.

"breath analysing instrument" means an instrument—

(a) for finding out the concentration of alcohol in—

(i) a person’s blood by analysing a specimen of the person’s breath; or

(ii) a person’s breath by analysing a specimen of the person’s breath; and

(b) approved under a regulation.

"breath test" means a test to obtain an indication of the concentration of alcohol in a person’s breath using a device approved under a regulation.

Note—

As to devices previously approved by gazette notice, see the Statutory Instruments Act 1992 , section 20C .

"health care professional" means—

(a) a doctor; or

(b) a nurse; or

(c) a qualified assistant.

"nurse" means a person registered under the Health Practitioner Regulation National Law—

(a)

(b) in the registered nurses division of that profession.

"qualified assistant" means a person whose duties include the taking of blood.

"saliva analysing instrument" means an instrument, that is approved under a regulation, for finding out whether a relevant drug is present in a person’s saliva by analysing a specimen of the person’s saliva.

"saliva analysis" , for a specimen of saliva, means analysis of the specimen by using a saliva analysing instrument and, if the saliva analysing instrument indicates the presence of a relevant drug in the specimen, analysis of another part of the specimen of saliva by a laboratory test approved under a regulation.

"saliva test" means a test to obtain an indication of the presence of a relevant drug in a person’s saliva by using a device approved under a regulation.

"specimen" , in relation to saliva, includes parts of the saliva specimen.

"suspend" , in relation to a driver licence issued outside Queensland, includes suspend the authority to drive on a Queensland road under the licence.

(1A) When person taken not to have provided specimen If a person is required under this section to provide a specimen of breath for a breath test or analysis, a specimen of saliva for a saliva test or for saliva analysis or a specimen of blood for a laboratory test, the person is taken not to have provided the specimen unless it—

(a) is sufficient to enable the test or the analysis to be carried out; and

(b) is provided in a way that enables the objective of the test or analysis to be satisfactorily achieved.

(2) Request for specimen of breath or saliva A police officer may require any person found by the officer or who the officer reasonably suspects was during the last preceding 3 hours—

(a) driving a motor vehicle, tram or train on a road or elsewhere; or

(b) attempting to put in motion a motor vehicle, tram or train on a road or elsewhere; or

(c) in charge of a motor vehicle, tram or train on a road or elsewhere; or

(ca) otherwise operating, or interfering with the operation of, a motor vehicle dangerously on a road or elsewhere; or

(d) driving or in charge of or attempting to put in motion a vessel being used or apparently about to be used in navigation;

to provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person, or both.

(2A) Request for specimen of breath or saliva after incident If a motor vehicle, tram, train or vessel is involved in an incident resulting in injury to or death of any person or damage to property a police officer may require any person who the officer reasonably suspects—

(a) was driving or attempting to drive the motor vehicle, tram or train on a road or elsewhere; or

(b) was in charge of the motor vehicle, tram or train on a road or elsewhere; or

(ba) for an incident involving a motor vehicle—was otherwise operating, or interfering with the operation of, the motor vehicle dangerously; or

(c) was driving or in charge of or attempting to drive the vessel;

at the time of the incident to provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person or both.

(2B) Application of subsection (2C) Subsection (2C) applies if—

(a) a police officer requires a person to provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person, or both, under subsection (2) or (2A) ; and

(b) the person—

(i) is taken not to have provided the specimen of breath or saliva under subsection (1A) ; or

(ii) provides the specimen of breath or saliva; but—

(A) the device used for the test is or becomes defective precluding its satisfactory operation; or

(B) for any reason it is not possible to use or continue using the device to conduct the breath test or saliva test; or

(C) for any other reason it is not possible to complete the breath test or saliva test.

(2C) More than 1 specimen may be required Under subsection (2) or (2A) , the police officer may require the person to provide as many specimens of breath or saliva, or both, as the police officer considers reasonably necessary to carry out the breath test, the saliva test or both.

(3) Time and place for provision of specimen A police officer who is exercising a power conferred on the officer by subsection (2) or (2A) may require the person in question to provide the specimen of breath or saliva—

(a) at the time when and the place where the police officer makes the requirement including at any police station where the person may then be; or

(b) at the police station nearest to that place or at some other police station conveniently located as soon as practicable after the police officer makes the requirement if the police officer believes on reasonable grounds that it is reasonable for such person to be taken to a police station for the purpose, having regard to the circumstances of the case; or

(c) without limiting paragraph (b) , as soon as practicable after the police officer makes the requirement, at a place at which the police officer believes on reasonable grounds there is located a device that the police officer may use for carrying out a breath test or saliva test if the police officer does not have a device for the relevant test with him or her.

(4) Time limits for requirement for specimen A requirement must not be made under subsection (2) or (2A) unless it is made as soon as practicable and within 3 hours after the event happens that authorises the police officer to make the requirement under the subsection.

(5) Forcible taking of person to police station or other place If a person required by a police officer under subsection (2) or (2A) to provide at a police station or other place a specimen of breath for a breath test, or of saliva for a saliva test, by the person fails to go voluntarily to the police station or other place for that purpose, any police officer, using such force as is necessary, may take the person to the police station or, as the case may be, other place for that purpose.

(5A) Offence of failing to provide specimen as required Subject to subsection (5B) , if a person required by a police officer under subsection (2) or (2A) to provide a specimen of breath for a breath test, or a specimen of saliva for a saliva test, by the person either—

(a) fails to provide the specimen; or

(b) fails to provide the specimen in the manner directed by the police officer who makes the requirement;

the person commits an offence against this Act.

Penalty—

Maximum penalty—40 penalty units or 6 months imprisonment.

(5B) When person is not guilty under subsection (5A) A person referred to in subsection (5A) is not guilty of an offence under that subsection if—

(a) immediately after the requirement is made, the person produces to the police officer a certificate in the approved form from a doctor stating that—

(i) because of a stated illness or disability, the person is incapable of providing a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva; or

(ii) the provision of a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva could adversely affect the person’s health; or

(b) the person satisfies the justices that the requisition to provide a specimen of breath, a specimen of saliva or both a specimen of breath and of saliva was not lawfully made or that the person was, by reason of the events that occurred, incapable of providing the specimen as required or that there was some other reason of a substantial character for the person’s failure to provide the specimen as required other than a desire to avoid providing information that might be used in evidence.

(6) Powers of police for subsections (8)–(8L) If—

(a) it appears to a police officer in consequence of a breath test carried out by the officer on a specimen of breath of any person that the person is over the general alcohol limit; or

(aa) it appears to a police officer in consequence of a breath test carried out by the officer on a specimen of breath of any person that the person is over the no alcohol limit and the police officer reasonably suspects that the person is a person to whom section 79 (2A) , (2B) , (2D) , (2J) , (2K) or (2L) refers; or

(ab) it appears to a police officer in consequence of a saliva test carried out by the officer on a specimen of saliva of any person that a relevant drug is present in the person’s saliva; or

(b) a person required by a police officer under subsection (2) or (2A) to provide a specimen of breath for a breath test, or a specimen of saliva for a saliva test, by the person—

(i) fails to provide the specimen; or

(ii) fails to provide the specimen in the manner directed by the police officer who makes the requirement; or

(iii) declines to wait for such time as is reasonable in the circumstances to enable the test to be carried out satisfactorily; or

(ba) a police officer reasonably suspects that a person who produces a certificate under subsection (5B) (a) is, because of the external signs exhibited by the person, affected by liquor or a drug;

any police officer, using such force as is necessary, may—

(c) take the person to a police station, hospital or other place authorised under this section; or

(ca) take the person to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva; or

(d) if the person is already at a police station—detain the person there or take the person—

(i) to such other police station as is convenient and reasonable in the circumstances; or

(ii) to a vehicle or vessel, such as is convenient and reasonable in the circumstances, where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva; or

(e) if the person is already at a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva—detain the person there or take the person—

(i) to another such vehicle or vessel as is convenient and reasonable in the circumstances; or

(ii) to a police station such as is convenient and reasonable in the circumstances;

for the purposes of subsections (8) to (8L) .

(8) Particular persons under arrest or detained may be required to provide specimen Any person who—

(a) is arrested for an offence against section 79 or 83 ; or

(b) is arrested for any indictable offence in connection with or arising out of the driving of a motor vehicle by the person (including any offence against any provision of the Criminal Code , section 328A ); or

(ba) is arrested for an offence against the Criminal Code , section 328A in connection with or arising out of the operation, or interference with the operation, of a motor vehicle, other than an offence mentioned in paragraph (b) ; or

(c) is, for the purposes of subsections (8) to (8L) , detained at or taken to a police station, or detained at or taken to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva, or taken to a hospital or other place authorised under this section;

may, while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid, be required by any police officer to provide 1 or more of the following as any police officer requires—

(d) a specimen of the person’s breath for analysis by a breath analysing instrument;

(e) a specimen of the person’s saliva for saliva analysis;

(f) a specimen of the person’s blood for a laboratory test.

(8A) Detaining person mentioned in subsection (8) A person to whom subsection (8) applies may be detained at a police station, vehicle, vessel, hospital or other place as aforesaid for the purposes of subsections (8) to (8L) by a police officer.

(8B) Person may be taken to particular places for subsections (8)–(8L) Any person referred to in subsection (8) may, for the purposes of subsections (8) to (8L) , be taken—

(a) to a police station; or

(b) to a police station, vehicle or vessel where facilities are available for either or both of the following—

(i) analysing a specimen of breath by a breath analysing instrument;

(ii) analysing a specimen of saliva by a saliva analysing instrument; or

(c) to a hospital; or

(d) if there are reasonable grounds for believing that a doctor or nurse is available at any other place—to that place;

and such person may be taken to more than 1 of such places if the purposes of those subsections can not be carried out or effected at a place to which the person has been first taken.

(8C) Police officer may require specimen if person at hospital If a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of breath for a breath test, or a specimen of saliva for a saliva test, by the person (an
"authorising requirement" ) is at the hospital for treatment, that person may be required by any police officer to provide at the hospital—

(a) if the specimen that may be required under the authorising requirement is a specimen of breath—a specimen of the person’s breath for analysis by a breath analysing instrument or a specimen of the person’s blood for a laboratory test; or

(b) if the specimen that may be required under the authorising requirement is a specimen of saliva—a specimen of the person’s saliva for saliva analysis or a specimen of the person’s blood for a laboratory test.

(8D) Limitation applying to requisition under subsection (8C) A requirement for a person to provide a specimen under subsection (8C) must not be made under the subsection unless—

(a) a doctor who is familiar with the person’s injuries and apparent state of health at the time of the requirement approves of the person providing the specimen; and

(b) the requirement is made as soon as practicable and within 3 hours of the event that authorises the police officer to make the authorising requirement.

(8E) Specimen of blood must be required if doctor’s certificate produced If a person who is required under subsection (8) or (8C) to provide a specimen of the person’s breath or saliva for analysis forthwith on being so required produces to the police officer who made the requisition a doctor’s certificate mentioned in subsection (5B) (a) material to the provision of the specimen, the police officer must not require a specimen of breath or saliva of the person but must require a specimen of the person’s blood.

(8F) Providing a specimen of breath A person who is required under subsection (8) or (8C) to provide a specimen of the person’s breath for analysis must do so, when directed by the doctor or authorised police officer operating or who is to operate the breath analysing instrument, by placing the person’s mouth over the mouthpiece of the instrument and blowing directly and continuously (and without escape of breath otherwise) through that mouthpiece into the instrument until told to stop by the doctor or authorised police officer operating the instrument.

(8FA) Providing a specimen of saliva A person required under subsection (8) or (8C) to provide a specimen of the person’s saliva for saliva analysis must do so by—

(a) placing a collection unit, that is prescribed under a regulation, into or adjacent to the person’s mouth when directed by the authorised police officer operating, or who is to operate, a saliva analysing instrument; and

(b) while providing the specimen, holding or otherwise dealing with the collection unit, in a way prescribed under a regulation, until told to stop by the authorised police officer.

(8G) Authorising a police officer to operate breath or saliva analysing instrument The commissioner may, by writing under the commissioner’s hand, authorise any police officer to be an authorised police officer to operate either or both of the following on being satisfied the officer is competent to operate the instrument—

(a) a breath analysing instrument;

(b) a saliva analysing instrument.

(8H) Lost, mislaid or destroyed instrument of authority If an authorised police officer’s instrument of authority issued under subsection (8G) is lost, mislaid, or destroyed or otherwise can not be produced—

(a) the police officer continues to be an authorised police officer even though the instrument of authority has been lost, mislaid, or destroyed or otherwise can not be produced; and

(b) the commissioner may issue to the officer a replacement instrument of authority; and

(c) the replacement instrument of authority is taken to have effect from the date the original instrument of authority was issued.

(8I) Certificate of commissioner about authorisation A certificate purporting to be signed by the commissioner that the police officer named in the certificate is authorised by the commissioner to operate a breath analysing instrument or saliva analysing instrument is, in the absence of proof to the contrary, proof that the named police officer is so authorised.

(8L) Application of subsection (8M) Subsection (8M) applies if—

(a) a person has been required to provide, under subsection (8) or (8C) , a specimen of the person’s breath for analysis by a breath analysing instrument, a specimen of the person’s saliva for saliva analysis or a specimen of the person’s blood for a laboratory test; and

(b) the person—

(i) is taken under subsection (1A) not to have provided the specimen that was required; or

(ii) provides a specimen of breath for analysis by a breath analysing instrument or a specimen of saliva for saliva analysis; but—

(A) the relevant breath analysing instrument or saliva analysing instrument is or becomes defective precluding its satisfactory operation to analyse the breath specimen or saliva specimen; or

(B) for any reason it is not possible to use or continue using the breath analysing instrument for analysing the breath specimen or the saliva analysing instrument for analysing the saliva specimen; or

(C) for an analysis by a breath analysing instrument, the instrument indicates to the authorised police officer operating the instrument that alcohol or some other substance is present in the mouth of the person supplying the breath specimen; or

(D) for any other reason it is not possible to complete the analysis.

(8M) Requiring as many specimens as considered reasonably necessary Under subsection (8) or (8C) , the police officer is authorised to require the person to provide as many specimens of breath, saliva or blood as the officer considers reasonably necessary to carry out the analysis or test.

(9) Requiring specimen of blood or urine for laboratory test If a person—

(a) is arrested for any offence referred to in subsection (8) ; or

(b) is, for the purposes of subsections (8) to (8L) , detained at or taken to a police station, vehicle or vessel, or taken to a hospital or other place authorised under this section;

and while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid is required by a police officer to provide a specimen of the person’s breath for analysis by a breath analysing instrument, or the person’s saliva for saliva analysis, the police officer making the requisition may—

(c) if the police officer who arrested, detained or took as aforesaid the person believes on reasonable grounds that at the time of the arrest, detaining or taking the person exhibited external signs indicating that the person was affected by liquor or a drug; and

(d) if—

(i) the analysis by the breath analysing instrument of the specimen of breath provided under the requisition indicates either that there is no alcohol in the person’s blood or breath or that the concentration of alcohol in the person’s blood or breath does not reasonably explain the external signs exhibited and observed; or

(ii) the analysis by the saliva analysing instrument of the specimen of saliva provided under the requisition indicates that there is no relevant drug in the person’s saliva;

require the person to provide a specimen of the person’s blood for a laboratory test and, subject to the direction of a doctor or nurse, a specimen of the person’s urine for a laboratory test.

(9A) Powers of a police officer making requisition under subsection (9) The police officer making the requisition may detain the person at a police station, vehicle, vessel, hospital or other place authorised under this section for a period of time that is reasonable in the circumstances to enable a doctor to attend there in connection with the provision by the person of a specimen of blood or urine or, as the case requires, such police officer may take the person to a place where, in the reasonable belief of such officer, a doctor or nurse is available for the purposes of the provision by the person of a specimen of the person’s blood.

(9B) Taking of specimen of blood by health care professional A person who is required by a police officer, under this section, to provide a specimen of the person’s blood for a laboratory test must allow a doctor or nurse, or a qualified assistant directed by a doctor or nurse to take the specimen, to take the specimen when and as directed by and to the satisfaction of the health care professional, the health care professional being hereby authorised to take such specimen whether or not the person consents to the taking.

(9C) Providing specimen of urine as directed by doctor or nurse A person who is required under subsection (9) to provide a specimen of the person’s urine for a laboratory test must do so when and as directed by a doctor or nurse.

(10) Requiring doctor or nurse to obtain specimen of blood for laboratory test A police officer may require a doctor or nurse who is attending a person who is at a hospital for treatment to obtain a specimen of the person’s blood for a laboratory test, if the person—

(a) is a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of breath for a breath test or a specimen of saliva for a saliva test; and

(b) is, or appears to be, unable to consent to the taking of the specimen of blood because the person is, or appears to be, unconscious or otherwise unable to communicate.

(10A) Obligations of doctors and nurses when taking specimen of blood The doctor or nurse must—

(a) take a specimen of the person’s blood that will enable the laboratory test to be carried out; or

(b) ensure that a qualified assistant takes a specimen of the person’s blood that will enable the laboratory test to be carried out.

(10B) Qualified assistant may take specimen of blood A qualified assistant may take the specimen of the person’s blood if directed to do so by the doctor or nurse.

(10C) Specimen of blood also to be given to person The health care professional who takes the specimen of the person’s blood under subsection (10A) (a) or (10B) must, immediately after taking the specimen, take another specimen of the person’s blood and give it to the person as soon as practicable.

(10D) Doctor or nurse need not comply with subsection (10A) in particular circumstances The doctor or nurse need not comply with subsection (10A) if the doctor or nurse—

(a) reasonably believes that taking the specimen would be prejudicial to the person’s treatment; or

(b) has another reasonable excuse.

Example—

A doctor or nurse would have a reasonable excuse if he or she was required to attend to a patient suffering a heart attack and was unable to take the specimen of blood when required.

(10E) Limitation on requiring specimen of blood when specimen of breath previously provided and analysed A police officer must not make a requirement under subsection (10) relating to a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of breath for a breath test if—

(a) under this section, the person has provided a specimen of breath (the
"analysis specimen" ) for analysis by a breath analysing instrument in relation to the occurrence or event in relation to which the police officer may require a specimen of breath for a breath test as mentioned in subsection (10) (a) ; and

(b) the analysis specimen has been analysed by a breath analysing instrument; and

(c) there is a certificate under subsection (15) for the analysis.

(10EA) Limitation on requiring specimen of blood when specimen of saliva previously analysed Also, a police officer must not make a requirement under subsection (10) relating to a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of saliva for a saliva test if—

(a) under this section, the person has provided a specimen of saliva for saliva analysis in relation to the occurrence or event in relation to which the police officer may require a specimen of saliva for a saliva test as mentioned in subsection (10) (a) ; and

(b) the specimen for saliva analysis has been analysed by a saliva analysing instrument; and

(c) a notice about the analysis is retained by, or given to, the police officer as mentioned in subsection (15AB) (b) (i) and (ii) .

(10F) Subsections (10A) and (10C) do not create offences.

(10G) Lawful to take specimen of blood without consent It is lawful for a health care professional to take a specimen of a person’s blood under subsection (10A) (a) , (10B) or (10C) even though the person has not consented to the taking.

(11) Guilt of offence and liability for failing to provide specimen If a police officer makes a requisition under subsection (8) , (8C) or (9) in relation to a person driving, attempting to put in motion or in charge of a motor vehicle, tram, train or vessel, and the person fails to provide as prescribed in this section—

(a) a specimen of the person’s breath for analysis by a breath analysing instrument; or

(b) a specimen of the person’s saliva for saliva analysis; or

(c) a specimen of the person’s blood for a laboratory test;

each of the following applies—

(d) the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79 (1) ;

(e) the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver licence, as the person would be if the offence were actually an offence committed by the person against the appropriate provision of section 79 (1) .

(11AA) If a police officer makes a requisition under subsection (8) , (8C) or (9) in relation to a person other than a person mentioned in subsection (11) , and the person fails to provide as prescribed in this section—

(a) a specimen of the person’s breath for analysis by a breath analysing instrument; or

(b) a specimen of the person’s saliva for saliva analysis; or

(c) a specimen of the person’s blood for a laboratory test;

the person commits an offence against this Act.

Penalty—

Maximum penalty—40 penalty units or 6 months imprisonment.

(11A) Person not guilty under subsection (11) in particular circumstances A person referred to in subsection (11) or (11AA) is not guilty of an offence under that subsection if the person satisfies the justices that the requisition to provide the specimen was not lawfully made or that the person was, because of the events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the person’s failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.

(15) Breath analysis certificate As soon as practicable after a specimen of breath provided under a requisition has been analysed by means of a breath analysing instrument, the doctor or authorised police officer operating such instrument must sign 2 copies of a certificate in writing stating the concentration of alcohol indicated by the analysis to be present in the blood or breath of the person whose breath has been analysed, the date and time at which the analysis was made, and must—

(a) either—

(i) if the specimen was analysed by the police officer who made the requisition—retain 1 copy of the certificate; or

(ii) otherwise—deliver 1 copy of the certificate to the police officer who made the requisition; and

(b) deliver the other copy to the person whose breath has been analysed (or to another person on behalf of that person on request by that other person).

(15A) Subsection (15) certificate evidence A copy of a certificate under subsection (15) —

(a) is evidence that the instrument operated by the doctor or officer was a breath analysing instrument; and

(b) is evidence that the instrument was in proper working order and properly operated by the doctor or officer; and

(c) is evidence that all regulations relating to breath analysing instruments were complied with; and

(d) is presumed to have been given to the person whose breath was analysed, unless the contrary is proved.

(15AB) Saliva analysis instrument record and notices As soon as practicable after a specimen of saliva provided under a requisition has been analysed by means of a saliva analysing instrument, the authorised police officer operating the instrument must—

(a) enter details in a notice, in the approved form, about the analysis; and

(b) either—

(i) if the specimen was analysed by the police officer who made the requisition—retain 1 copy of the notice; or

(ii) otherwise—give 1 copy of the notice to the police officer who made the requisition; and

(c) give a copy of the notice to the person whose saliva has been analysed (or, at the person’s request, to another person on the person’s behalf).

(15AC) Approved form for person whose saliva is tested is to include particular matters If a relevant drug is present in analysed saliva, the approved form given to a person as mentioned in subsection (15AB) (c) for the analysis must include notice about each of the following—

(a) the person may request a specimen of the person’s saliva be given to him or her as stated in subsection (20A) ;

(b) another part of the specimen that was analysed by the saliva analysing instrument will be delivered to a laboratory of an analyst to be tested for the presence of a relevant drug.

(15B) Certificate of failure to provide breath or saliva specimen If a person who is required under subsection (8) or (8C) to provide a specimen of the person’s breath for analysis or saliva for saliva analysis fails to do so as prescribed by that subsection, the doctor or authorised police officer operating or to operate the breath analysing instrument or the police officer operating or to operate the saliva analysing instrument must, as soon as practicable after the person fails to provide the specimen, sign 2 copies of a certificate in writing stating—

(a) the full name of the person concerned; and

(b) the name of the police officer who made the requisition; and

(ba) whether the requisition was for a specimen of the person’s breath for analysis or saliva for saliva analysis; and

(c) the name of the operator of the breath analysing instrument or saliva analysing instrument; and

(d) the name and patent number or name and model number appearing on the breath analysing instrument or saliva analysing instrument; and

(e) that the person concerned failed to provide as prescribed by that subsection a specimen of breath or saliva when required;

and must—

(g) either—

(i) if the operator of the breath analysing instrument is the police officer who made the requisition—retain 1 copy of the certificate; or

(ii) otherwise—deliver 1 copy of the certificate to the police officer who made the requisition; and

(h) deliver the other copy to the person who failed to provide as prescribed the specimen of breath or saliva when required (or to another person on behalf of that person on request by that other person).

(15F) Subsection (15B) certificate evidence A certificate referred to in subsection (15B) must, on its production in any proceeding, be accepted as evidence—

(a) that a requisition to provide a specimen of the person’s breath for analysis or saliva for saliva analysis was made to the person concerned by the police officer named in the certificate as the police officer making the requisition; and

(b) that the person concerned failed to provide as prescribed by subsections (8) to (8L) a specimen of breath or saliva when required; and

(c) that an approved breath analysing instrument or saliva analysing instrument was available at the place where and at the time when the requisition was made for the purpose of analysing a specimen provided in accordance with the requisition;

and until the contrary is proved is conclusive such evidence.

(15G) Evidence from breath analysing instrument Evidence by a doctor or an authorised police officer or by a copy of a certificate referred to in subsection (15) purporting to be signed by a doctor or an authorised police officer of the concentration of alcohol indicated to be present in the blood or breath of a person by a breath analysing instrument operated by such doctor or authorised police officer is, subject to subsection (15H) , conclusive evidence of the concentration of alcohol present in the blood or breath of the person in question at the time (being in the case of such certificate the date and time stated therein) the breath of that person was analysed and at a material time in any proceedings if the analysis was made not more than 3 hours after such material time, and at all material times between those times.

(15H) Evidence may be negatived The defendant may negative such evidence as aforesaid if the defendant proves that at the time of the operation of the breath analysing instrument it was defective or was not properly operated.

(16) Delivery of blood, urine or saliva specimen to laboratory As soon as practicable after—

(a) a specimen of blood or urine has been obtained under this section; or

(b) a specimen of saliva has been obtained under this section and a notice is retained by, or given to a police officer as mentioned in subsection (15AB) (b) (i) and (ii) stating that a relevant drug was present in the analysed specimen of saliva;

the police officer who required the specimen must deliver it, or arrange for it to be delivered on the police officer’s behalf, to the laboratory of an analyst.

(16A) Prescribed delivery of specimen to laboratory The specimen of blood, urine or saliva to be delivered under subsection (16) must be delivered to the analyst’s laboratory in the way prescribed under a regulation.

(16B) Certificate by analyst is evidence of stated matters A certificate purporting to be signed by an analyst and stating—

(a) that there was received at the laboratory of the analyst from the police officer named in the certificate a specimen of the blood, or a specimen of the saliva, as stated in the certificate (the
"delivered specimen" ) of the person named in the certificate provided by that person on the date and at the place and time stated in the certificate; and

(b) that the analyst or another analyst made a laboratory test of the delivered specimen on the date and at the place stated in the certificate; and

(ba) if a laboratory test of the delivered specimen was done by another analyst—the analyst who signed the certificate—

(i) examined the laboratory’s records about the receipt, storage and testing of the delivered specimen; and

(ii) confirms the records show that all quality assurance procedures for the receipt, storage and testing of the delivered specimen that were in place in the laboratory at the time of the laboratory test were complied with; and

(c) that—

(i) if the delivered specimen was a specimen of blood—

(A) the concentration of alcohol in the person’s blood indicated by the laboratory test was a stated number of milligrams of alcohol in the blood per 100mL of blood; or

(B) a stated drug or metabolite of a stated drug was indicated by the laboratory test to be present in the person’s blood; or

(ii) if the delivered specimen was a specimen of saliva—a stated relevant drug or metabolite of a stated relevant drug was indicated by the laboratory test to be present in the person’s saliva;

is evidence of those matters and until the contrary is proved is conclusive such evidence.

(16BA) Request for laboratory’s records If the commissioner receives a written request for a copy of the laboratory’s records about the receipt, storage or testing of a delivered specimen from the person who gave the specimen, the commissioner must give a copy of the records to the person within 7 business days after receiving the request.

(16C) Certificate by health care professional of failure to provide blood specimen If a person who is required under subsection (8) , (8C) or (9) to provide a specimen of the person’s blood for a laboratory test fails to do so as prescribed by the subsection under which the requisition is made, the health care professional by whom the specimen is to be taken must, as soon as practicable thereafter, sign 2 copies of a certificate in writing stating—

(a) the full name of the person concerned; and

(b) the name of the police officer who made the requisition; and

(c) that the person concerned failed to provide a specimen of blood when required;

and must deliver—

(e) 1 copy of such certificate to the police officer who made the requisition; and

(f) the other copy to the person who failed to provide the specimen of blood when required (or to another person on behalf of that person on request by that other person).

(16E) Subsection (16C) certificate evidence A certificate referred to in subsection (16C) must, on its production in any proceeding, be accepted as evidence—

(a) that a requisition to provide a specimen of the person’s blood for a laboratory test was made to the person concerned by the police officer named in the certificate as the police officer making the requisition; and

(b) that the person concerned failed to provide as prescribed by the subsection under which the requisition was made a specimen of the person’s blood when required;

and until the contrary is proved is conclusive such evidence.

(16F) Three hours proof of alcohol or drug concentration by laboratory test Evidence by an analyst or by a certificate referred to in subsection (16B) of the concentration of alcohol indicated to be present in, or of the drug or metabolite of the drug indicated to be present in, the blood of a person by a laboratory test of a specimen of the blood of that person is, subject to subsection (16G) , conclusive evidence of the presence of the concentration of alcohol in, or the drug or the metabolite of the drug in, the blood of that person at the time (being in the case of such certificate the date and time stated therein) when the person provided the specimen and at a material time in any proceedings if the specimen was provided not more than 3 hours after such material time, and at all material times between those times.

Note—

The reference to drug in this subsection, because of its generality, includes a relevant drug.

(16FA) Three hours proof of relevant drug presence by laboratory test Evidence by an analyst, or by a certificate referred to in subsection (16B) , that a stated relevant drug or metabolite of a stated relevant drug is indicated to be present in the blood or saliva of a person by a laboratory test of a specimen of the blood or saliva of the person, subject to subsection (16G) , is conclusive evidence of the presence of the stated relevant drug or the metabolite of the stated relevant drug in the person’s blood or saliva—

(a) at the time (being for a certificate the date and time stated in the certificate) when the person provided the specimen; and

(b) at a material time in any proceedings if the specimen was provided not more than 3 hours after the material time; and

(c) at all material times between those times.

(16G) Evidence may be negatived The defendant may negative the evidence mentioned in subsection (16F) or (16FA) if the defendant proves the result of the laboratory test of that specimen of blood or saliva was not a correct result.

(16H) Adjournment of hearing for reasons relating to certificate of analyst The court must on the application of the complainant adjourn the hearing as necessary to enable the production in evidence of the certificate of the analyst and if within 3 days after providing the specimen the defendant has given to the police officer in charge of the police station at which or nearest to the hospital or other place where the specimen of blood for the laboratory test, or the specimen of saliva for saliva analysis, was provided a notice in writing that the defendant requires a copy of the certificate to be given to the defendant at the address stated in the notice must, at the request of the defendant, adjourn the hearing as necessary to ensure that such copy has been given to the defendant at such address not less than 3 days before the production of the certificate in evidence.

(16I) Such copy may be given either personally or by sending it by registered post or certified mail.

(16J) Deposition about giving certificate The person who gives the copy (whether personally or by sending it by registered post or certified mail) may attend before any justice of the peace having jurisdiction in the State or part of the State or part of the Commonwealth where the person gives the copy and depose on oath and in writing endorsed on a copy of the certificate to the giving thereof.

(16K) Subsection (16J) deposition evidence The deposition is, on production to the court, evidence of the matters contained therein and, until the contrary is proved, is conclusive such evidence.

(16L) Court may deal with a charge even if laboratory test result unknown Nothing contained in subsections (16H) to (16K) precludes the court in its discretion from dealing with a charge of an offence against section 79 (1) or (2AA) on the application of the defendant notwithstanding that at that time the result of the laboratory test of the specimen of the blood or of saliva of the defendant is not known if—

(a) the defendant pleads guilty to the offence; and

(b) the court is satisfied that the facts available to be put forward by the prosecution, and unchallenged by the defendant, are sufficient to enable it to deal properly with the matter.

(18) Certificate by health care professional is evidence of stated matters A certificate purporting to be signed by a health care professional that on a date and at a place and time stated therein the health care professional took a specimen of blood for a laboratory test, or a specimen of saliva for saliva analysis, of a person named in the certificate must, on its production in any proceeding, be accepted as evidence of those matters and until the contrary is proved is conclusive such evidence.

(18A) Certificate by particular person is evidence of matters relating to the person If by any provision of this section a certificate of or purporting to be signed by a health care professional, an authorised police officer or an analyst is made evidence of any matter, a certificate purporting to be signed by a health care professional, an authorised police officer or an analyst, as the case may be, as to that matter must, on its production in any proceeding, be accepted as evidence—

(a) that the signature on the certificate is that of the person by whom the certificate purports to be made; and

(b) of all matters contained therein including the status, authority or qualification of the person by whom the certificate purports to be made;

and until the contrary is proved is conclusive such evidence.

(19) Evidence of compliance with subsection (16A) If a police officer delivers a specimen of blood (the
"specimen" ), or a specimen of saliva (also the
"specimen" ), or arranges for the specimen to be delivered on the officer’s behalf, to an analyst’s laboratory in a way prescribed by regulation, in any proceeding—

(a) evidence of that fact given by the officer and any person who delivered the specimen on the officer’s behalf; and

(b) a certificate, produced in evidence, purporting to be signed by the analyst certifying that the specimen was received at the analyst’s laboratory from the officer;

is sufficient evidence of compliance with subsection (16A) .

(20) Person providing specimen of blood or saliva may request specimen A person who, being thereunto required under subsection (8) , (8C) or (9) , has provided a specimen of blood for a laboratory test, or a specimen of saliva for saliva analysis, may when the person provides the specimen or immediately after providing it and where the person provides it (or another person on behalf of that person may when or immediately after the person provides the specimen and where the person provides it) request—

(a) the health care professional who took the specimen of blood to give the person a specimen of the person’s blood; or

(b) the police officer who took the specimen of saliva for saliva analysis to give to the person a specimen of the person’s saliva.

(21) Definition for subsection (22) In subsection (22) —

"relevant provision" means—

(a) subsection (8) to the extent it applies to a person mentioned in subsection (8) (a) , (b) or (c) ; or

(b) subsection (8C) to the extent it applies to a person who may be required to provide a specimen of breath for a breath test under subsection (2) (a) , (b) , (c) or (d) or (2A) (a) , (b) or (c) .

(20A) Health care professional must comply with request under subsection (20) Upon such request, subject to the person concerned then and there providing a second specimen of blood or saliva, the health care professional must give the second specimen of blood, or the police officer must give the second specimen of saliva, to the person or to the person requesting it on the person’s behalf.

(22) Application of subsection (22AA) Subsection (22AA) applies if—

(a) the analysis by means of a breath analysing instrument of a specimen of breath of a person required by a police officer to be provided under a relevant provision indicates that the person is over the general alcohol limit or in the case of a person to whom section 79 (2A) , (2B) , (2D) , (2J) , (2K) or (2L) refers, that the person is over the no alcohol limit; or

(ab) the analysis by means of a saliva analysing instrument of a specimen of saliva of a person required by a police officer to be provided under a relevant provision indicates that a relevant drug is present in the person’s saliva; or

(b) a person required to provide a specimen of breath, or a specimen of saliva for saliva analysis, as mentioned in paragraph (a) or (ab) fails to provide the specimen as prescribed under subsections (8) to (8L) ; or

(ba) a person has been arrested for an offence under section 79 (1) but has not been required by a police officer to provide a specimen of breath for analysis or a specimen of blood for a laboratory test under subsection (8) or (8C) —

(i) because the person is violent; or

(ii) because of the external signs exhibited by the person, the police officer reasonably believes the person is so affected by alcohol or a drug as to be unable to provide the specimen; or

(iii) because of the remoteness of the area—

(A) a breath analysing instrument is not available to analyse a specimen of the person’s breath; or

(B) a doctor or nurse is not available to take a specimen of blood from the person for a laboratory test or to direct a qualified assistant to take the specimen; or

(c) a person who is required by a police officer under a relevant provision to provide a specimen of the person’s blood for a laboratory test permits a specimen of the person’s blood to be taken for the purpose and thereupon such police officer requires that person to provide a specimen of breath for a breath test, or saliva for a saliva test, by the officer (the officer being hereby authorised to require such a specimen of breath for a breath test, or saliva for a saliva test, to be provided), and—

(i) it appears to the police officer in consequence of the breath test carried out by the officer that the device by means of which the test is carried out indicates that the person is over the general alcohol limit or in the case of a person to whom section 79 (2A) , (2B) , (2D) , (2J) , (2K) or (2L) refers, that the person is over the no alcohol limit; or

(ia) it appears to the police officer in consequence of the saliva test carried out by the officer that the device by means of which the test is carried out indicates a relevant drug is present in the person’s saliva; or

(ii) the person fails to provide such specimen of breath or saliva; or

(d) a person who is required by a police officer under a relevant provision, or under subsection (9) in relation to a relevant provision, to provide a specimen of the person’s blood for a laboratory test fails to provide such specimen; or

(e) a specimen of a person’s blood is taken under a relevant provision, or under another provision of this section in relation to a relevant provision, for a laboratory test and a doctor or nurse certifies in writing to the police officer who made the requisition for the provision or taking of the specimen of blood that, in respect of the person concerned, the case is a proper one for the suspension of that person’s driver licence for a period of 24 hours.

(22AA) Suspension of driver licence for 24 hours in particular circumstances The person’s driver licence is suspended for 24 hours from when—

(a) the analysis mentioned in subsection (22) (a) or (ab) was made; or

(b) the requirement mentioned in subsection (22) (b) , (c) (ii) or (d) was made; or

(c) the arrest mentioned in subsection (22) (ba) was made; or

(d) the breath test of the specimen of the person’s breath mentioned in subsection (22) (c) (i) , or the saliva test of the specimen of the person’s saliva mentioned in subsection (22) (c) (ia) , was carried out; or

(e) the certificate in writing mentioned in subsection (22) (e) was given.

(22A) Police officer to give statement of suspension The police officer who required the specimen must sign and deliver to the person concerned (or to another person on behalf of that person at the request of that other person) a statement in writing that the driver licence of the person concerned is suspended as prescribed by subsection (22AA) for the period of 24 hours commencing at the time stated therein.

(22B) Arrest immaterial It is immaterial, in any of the cases referred to in subsection (22) , whether the person concerned is arrested or not.

(22C) No review or appeal lies for suspension Notwithstanding any other provision of this Act, a review or an appeal does not lie in respect of the suspension of a driver licence under subsection (22AA) .

(22D) Offence of driving motor vehicle during suspension Any person who, while the person’s driver licence is suspended under subsection (22AA) , drives a motor vehicle on a road or elsewhere is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 1 year.

(23) If doctor unavailable, police officer may take person to another place for taking of specimen If under this section a police officer may in the performance, exercise or carrying out of the officer’s functions, powers or duties under this section take a person to a hospital or police station for the taking of a specimen and the police officer believes on reasonable grounds that a doctor is not available at the hospital or to go to the police station, or that, for the taking of a specimen of blood at the hospital, a nurse also is not available, the officer may, whether the person concerned is under arrest or not, take such person to a place where to the officer’s knowledge or in the officer’s reasonable belief a doctor is available for the taking of a specimen.

(24) Evidence of concentration of alcohol, drug etc. is admissible in trial on indictment Evidence of either or both of the following—

(a) the presence of the concentration of alcohol in the blood or breath of a person, or the concentration of a drug or metabolite of a drug (other than a relevant drug or a metabolite of a relevant drug) in the blood of a person;

(b) the presence of a relevant drug in the blood or saliva of a person;

at a time material to the time of an offence as hereinafter mentioned obtained in accordance with any of the provisions of this section is admissible in the trial on indictment of that person of any offence in connection with or arising out of the driving, operation, or interference with the operation, of a motor vehicle or on any hearing of a charge summarily against the person of an offence against any provision of the Criminal Code , section 328A , and must not be excluded only because the evidence was compulsorily obtained or otherwise obtained in accordance with this section.

(24A) Provisions about evidence admissible under subsection (24) Evidence admissible under subsection (24) —

(a) may be given in the same manner, whether by a witness or by a certificate, as it may be given under the provisions of this section, other than that subsection, in respect of an offence against this Act; and

(b) is admissible in the same circumstances and in all respects to the same extent as it would be admissible under the provisions of this section, other than subsection (24) , in respect of an offence against this Act and, subject to paragraph (c) , has the same evidentiary value in relation to the same matters and times as are provided for by the provisions of this section, other than that subsection, in respect of such evidence; and

(c) where such evidence indicates a person was over the high alcohol limit, is conclusive evidence that the person was adversely affected by alcohol at all times in relation to which such evidence has evidentiary value under this section.

(26) Defendant to give 14 days notice of intention to lead evidence of particular matters If a defendant proposes to lead evidence to prove in any proceeding—

(a) under subsection (15H) , that at the time of the operation of a breath analysing instrument it was defective or was not properly operated; or

(b) under subsection (16G) , that the result of a laboratory test of a specimen of blood or saliva referred to in subsection (16F) or (16FA) was not a correct result; or

(c) under subsection (18) or (18A) , that the signature referred to therein is not the signature of the health care professional, authorised police officer or analyst by whom the certificate referred to therein purports to be signed or that any matter contained in the said certificate is not correct;

the defendant must give notice thereof to the complainant not less than 14 clear days before the return date of the summons or the appointed date for the hearing of the charge.

(27) Requirements for notice under subsection (26) The notice must—

(a) be written; and

(b) be signed by the defendant or the defendant’s solicitor; and

(c) for a notice under subsection (26) (a) —state the grounds on which the defendant intends to rely to prove that the breath analysing instrument was defective or was not properly operated; and

Example of paragraph (c)—

a claim that the breath analysing instrument was defective because it mistook the presence of mouthwash in the defendant’s mouth for the presence of alcohol in the defendant’s blood

(d) for a notice under subsection (26) (b) —state the grounds on which the defendant intends to rely to prove that the result of the laboratory test was not a correct result.

(28) Court’s leave necessary for particular persons to be required to attend hearing A defendant who gives a notice under subsection (26) (b) may, only with the court’s leave, require a person who was involved in the taking, receipt, storage or testing of the specimen of blood or saliva to attend the hearing to give evidence.

(29) When court may grant leave under subsection (28) The court may grant the leave only if satisfied—

(a) that the complainant has been given an opportunity to make a submission to the court about granting the leave; and

(b) that—

(i) there is a reasonable possibility that an irregularity or defect exists in relation to the taking, receipt, storage or testing of the specimen of blood or saliva about which the person required to attend the hearing is able to give evidence; or

(ii) it is otherwise in the interests of justice that the person be required to attend the hearing to give evidence relevant to the proceeding.

(30) Matters for proceedings for offence against section 79 or 83 or the Criminal Code, section 328A In a proceeding for an offence against section 79 or 83 or the Criminal Code , section 328A , unless the contrary is proved—

(a) a qualified assistant who takes a specimen of blood from a person for a laboratory test is to be taken to have been directed by a doctor or nurse to take the specimen; and

(b) any equipment used in a laboratory test of a specimen of blood or saliva is to be taken to have given accurate results.