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TASMANIA
__________
ROAD SAFETY (ALCOHOL AND DRUGS)
AMENDMENT BILL 2005
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 2 amended (Interpretation)
5. Section 6A inserted
6A. Driving with prescribed illicit drug in blood
6. Sections 7B and 7C inserted
7B. Power of police officer to require driver of motor
vehicle to undergo oral fluid test
7C. Liability to provide blood sample following oral
fluid test
7. Section 8A inserted
8A. Liability for oral fluid test as result of conduct
8. Section 10 amended (Enforcement of obligation to provide blood
sample or submit to breath analysis or medical examination)
9. Section 10A amended (Blood samples to be provided in certain
cases)
10. Section 13 amended (Duties of medical practitioners and nurses
in relation to taking of blood samples, &c.)
11. Section 13B amended (Analysis of blood and urine samples by
approved analyst)
12. Section 14 amended (Offences under Division 2)
[Bill 12]-IX
13. Section 17A amended (Penalties for other offences)
14. Section 19 amended (Special hardship orders)
15. Section 20 amended (Concurrent offences not treated separately)
16. Section 22 amended (Application of Division 1)
17. Section 23A inserted
23A. Statutory presumptions with respect to prescribed
illicit drugs
18. Section 30 amended (Evidence as to analyses, &c., inadmissible
in certain proceedings)
2
ROAD SAFETY (ALCOHOL AND DRUGS)
AMENDMENT BILL 2005
(Brought in by the Minister for Police and Public Safety, the
Honourable David Edward Llewellyn)
A BILL FOR
An Act to amend the Road Safety (Alcohol and Drugs) Act
1970
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Road Safety
(Alcohol and Drugs) Amendment Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
3. Principal Act
In this Act, the Road Safety (Alcohol and Drugs)
Act 1970* is referred to as the Principal Act.
*No. 77 of 1970
[Bill 12] 3
s. 4 No. Road Safety (Alcohol and Drugs) Amendment 2005
4. Section 2 amended (Interpretation)
Section 2 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "breath test" in
subsection (1):
"oral fluid test" means a test, for the
purpose of indicating whether a
prescribed illicit drug is present
in a person's blood, carried out
on that person's oral fluid by
means of a device of a type
approved for the purposes of such
a test by the Minister by notice in
the Gazette;
(b) by inserting the following definition after
the definition of "prescribed
concentration" in subsection (1):
"prescribed illicit drug" means a
drug prescribed in the regulations
as an illicit drug;
(c) by omitting from subsection (3A)(e)
"made." and substituting "made; and";
(d) by inserting the following paragraph after
paragraph (e) in subsection (3A):
(f) in relation to a person who,
following an oral fluid test,
becomes liable to submit to the
taking of a sample of blood for
analysis under section 7C - the
time of the act of driving which
gave rise to the oral fluid test.
4
2005 Road Safety (Alcohol and Drugs) Amendment No. s. 5
5. Section 6A inserted
After section 6 of the Principal Act, the
following section is inserted in Division 1:
6A. Driving with prescribed illicit drug in blood
(1) Subject to subsection (2), a person who
drives a motor vehicle while a prescribed
illicit drug is present in his or her blood
is guilty of an offence.
Penalty: Fine not exceeding 2 penalty
units.
(2) A person does not commit an offence
against subsection (1) if the prescribed
illicit drug was obtained and
administered in accordance with the
Poisons Act 1971.
(3) A court that convicts a person of an
offence against subsection (1) must, in
addition to imposing a fine, disqualify
the person from driving for a period not
exceeding 3 months.
(4) When a court imposes a disqualification
from driving under this section, it must
suspend or cancel any Australian driver
licence held by the person against whom
the disqualification is imposed, as
required by section 17 of the Vehicle and
Traffic Act 1999.
5
s. 6 No. Road Safety (Alcohol and Drugs) Amendment 2005
6. Sections 7B and 7C inserted
After section 7A of the Principal Act, the
following sections are inserted in Division 2:
7B. Power of police officer to require driver of
motor vehicle to undergo oral fluid test
(1) A police officer may require any person
who is driving a motor vehicle on a
public street to undergo, at or near the
place where the requirement is made, an
oral fluid test.
(2) For the purpose of making a requirement
under subsection (1), the police officer
may direct the person, by signal or
otherwise, to stop the vehicle.
(3) Where a police officer requires a person
to undergo an oral fluid test under
subsection (1), that person must comply
with the requirement in the presence of
that officer or another police officer and
in accordance with such directions as
may be given by that officer or that other
officer.
(4) A requirement or direction under this
section may be made by a police officer
whether or not the officer has grounds for
suspecting that a person may have a
prescribed illicit drug in his or her blood.
7C. Liability to provide blood sample following
oral fluid test
(1) Where, after requiring a person to
undergo an oral fluid test in accordance
with section 7B or 8A, a police officer
6
2005 Road Safety (Alcohol and Drugs) Amendment No. s. 7
reasonably believes that a prescribed
illicit drug may be present in that
person's blood, whether as a result of
such a test or not, the officer may require
that person to submit to the taking, by a
medical practitioner or qualified nurse, of
a sample of blood for analysis.
(2) A police officer may only require a
person to submit to the taking of a
sample of blood for analysis if the officer
reasonably believes that the analysis can
be carried out within 3 hours of the
relevant time.
(3) Where a police officer requires a person
to submit to the taking of a sample of
blood for analysis under subsection (1),
that person must comply with the
requirement in the presence of that
officer or another police officer and in
accordance with such directions as may
be given by that officer or that other
officer.
7. Section 8A inserted
After section 8 of the Principal Act, the
following section is inserted in Division 2:
8A. Liability for oral fluid test as result of
conduct
(1) Where at any time a police officer finds a
person in circumstances which give the
police officer cause to suspect that a
prescribed illicit drug may be present in
that person's blood and the police officer
7
s. 7 No. Road Safety (Alcohol and Drugs) Amendment 2005
reasonably believes that, immediately
preceding that time, that person drove a
motor vehicle on a public street while
that drug was so present, the police
officer may require the person to undergo
an oral fluid test.
(2) Where a police officer reasonably
believes that, while a motor vehicle was
in motion, a crime under section 167A of
the Criminal Code, or an offence under
the Traffic Act 1925 or the Vehicle and
Traffic Act 1999, was committed, the
police officer may require the person (if
any) who was driving the vehicle when it
was in motion to undergo an oral fluid
test.
(3) Where a police officer reasonably
believes that, while a motor vehicle was
in motion, the vehicle became involved
in an accident, the police officer may
require the person (if any) who was
driving the vehicle at the time of the
accident to undergo an oral fluid test.
(4) Without affecting the generality of
subsection (1), a police officer may, for
the purpose of forming the suspicion
referred to in that subsection, deduce
from the manner in which the person
concerned was behaving at the time
when the police officer found him or her
that that person may have had a
prescribed illicit drug in his or her blood
at that time.
(5) Where a motor vehicle continues in
motion after the commission of an
8
2005 Road Safety (Alcohol and Drugs) Amendment No. s. 8
offence referred to in subsection (2) or
after the occurrence of an accident
referred to in subsection (3), the police
officer concerned may, if necessary,
direct the person who is driving the
vehicle, by signal or otherwise, to stop
the vehicle.
(6) Where a police officer requires a person
to undergo an oral fluid test under
subsection (1), (2) or (3), that person
must comply with the requirement in the
presence of that officer or another police
officer and in accordance with such
directions as may be given by that officer
or that other officer.
8. Section 10 amended (Enforcement of obligation to
provide blood sample or submit to breath analysis
or medical examination)
Section 10 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "submit to
the taking of a sample of blood for
analysis or" after "Part to";
(b) by inserting in subsection (1) "or herself
to the taking of that sample or" after
"himself";
(c) by inserting in subsection (3) "the taking
of the sample of blood or" after "believe
that";
(d) by omitting subsection (4) and
substituting the following subsection:
9
s. 9 No. Road Safety (Alcohol and Drugs) Amendment 2005
(4) Where a person who is liable to
submit to the taking of a sample
of blood for analysis or submit to
a breath analysis or a medical
examination is at a place where,
or in a vehicle in which, that
sample can forthwith be taken or
that analysis or medical
examination can forthwith be
carried out, a police officer may
direct him or her there to submit
to the taking of the sample or to
the analysis or examination.
9. Section 10A amended (Blood samples to be
provided in certain cases)
Section 10A(1) of the Principal Act is amended
as follows:
(a) by omitting "was sustained and that
alcohol or a drug may have been present
in that person's blood at the time of the
accident" and substituting "to any person
was sustained";
(b) by omitting "that person" and
substituting "the driver".
10. Section 13 amended (Duties of medical practitioners
and nurses in relation to taking of blood samples,
&c.)
Section 13(2)(a) of the Principal Act is amended
by inserting "or a prescribed illicit drug" after
"alcohol".
10
2005 Road Safety (Alcohol and Drugs) Amendment No. s. 11
11. Section 13B amended (Analysis of blood and urine
samples by approved analyst)
Section 13B(3) of the Principal Act is amended
by omitting "section 9" and substituting
"section 7C, 9 or 10A".
12. Section 14 amended (Offences under Division 2)
Section 14 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(a) ", 7C"
after "(1)";
(b) by inserting in subsection (1)(b) "7B,"
after "(1),";
(c) by inserting in subsection (4) ", or
required under section 7C," after "(6)";
(d) by omitting subsection (6) and
substituting the following subsection:
(6) Any person who, having been
required under section 7A(1),
section 7B(1), section 7C(1),
section 8(6) or section 8A(1), (2)
or (3) to undergo a breath test or
an oral fluid test, does anything
before he or she undergoes that
test with intent to alter the
concentration of alcohol or a
prescribed illicit drug in his or her
blood is guilty of an offence.
11
s. 13 No. Road Safety (Alcohol and Drugs) Amendment 2005
(e) by inserting in subsection (7) "or to the
taking of a sample of blood for analysis"
after "submit to a breath analysis";
(f) by inserting in subsection (7) "or a
prescribed illicit drug" after "alcohol".
13. Section 17A amended (Penalties for other offences)
Section 17A(1) of the Principal Act is amended
by inserting "section 6A or" after "in".
14. Section 19 amended (Special hardship orders)
Section 19(1A) of the Principal Act is amended
by omitting paragraphs (e) and (ea) and
substituting the following paragraphs:
(e) except in the case of an offence against
section 6A, the offender was the holder
of a learner licence or a provisional
licence; or
(ea) except in the case of an offence against
section 6A, at the time of the offence the
offender was not authorised under an
Australian driver licence to drive the
vehicle in respect of which the offence
was committed or cannot satisfy the
court that he or she would, but for an
unintentional failure to comply with an
administrative requirement, have been so
authorised to drive that vehicle at that
time; or
12
2005 Road Safety (Alcohol and Drugs) Amendment No. s. 15
15. Section 20 amended (Concurrent offences not
treated separately)
Section 20 of the Principal Act is amended by
omitting "or section 6" and substituting ",
section 6 or section 6A".
16. Section 22 amended (Application of Division 1)
Section 22(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c)
"analysis." and substituting "analysis;";
(b) by inserting the following paragraph after
paragraph (c):
(d) the presence of a prescribed illicit
drug in a person's blood at the
time of the commission of the
crime or offence.
17. Section 23A inserted
After section 23 of the Principal Act, the
following section is inserted in Division 1:
23A. Statutory presumptions with respect to
prescribed illicit drugs
Where in any proceedings for an offence
under section 6A it is shown that a
prescribed illicit drug was present in the
blood of a person at any time within 4
hours after the relevant time, the drug is
taken to have been present in the
13
s. 18 No. Road Safety (Alcohol and Drugs) Amendment 2005
person's blood at the relevant time unless
the contrary is proved.
18. Section 30 amended (Evidence as to analyses, &c.,
inadmissible in certain proceedings)
Section 30 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) ",
section 6A" after "section 6";
(b) by inserting in subsection (1) "or a
prescribed illicit drug" after "liquor";
(c) by inserting the following subsection
after subsection (2):
(2A) The fact that a prescribed illicit
drug has been detected in a
person's blood in accordance
with this Act is not admissible as
evidence in any legal proceedings
against the person under the
Forensic Procedures Act 2000 or
in respect of an offence against
Division 3 of Part 3 of the Misuse
of Drugs Act 2001, but is
admissible in respect of an
offence against Part 2, or
Division 4 of Part 3, of the
Misuse of Drugs Act 2001 and
may be taken into account in
consideration of an application
for a search warrant under the
Search Warrants Act 1997.
14 Government Printer, Tasmania