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RAIL SAFETY (LOCAL OPERATIONS) ACT 2006 - SECT 85

Additional matters for breath analyses

    (1)     This section applies if a rail safety worker is required by a transport safety officer or police officer to submit to testing by means of a breath analysis under section 83(1).

    (2)     For the purposes of section 83(1), a requirement of the transport safety officer or police officer under that section may be that the rail safety worker submit to testing by doing one or both of the following—

        (a)     furnishing a sample of breath for analysis by a breath analysing instrument;

        (b)     furnishing one or more further samples if it appears to the transport safety officer or police officer that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air—

              (i)     because the amount of sample furnished was insufficient; or

              (ii)     because of a power failure or malfunctioning of the instrument; or

              (iii)     for any other reason whatsoever.

    (3)     In addition, for the purposes of section 83(1)(a) to (e), the transport safety officer or police officer may require the rail safety worker to—

        (a)     accompany the transport safety officer or police officer to a police station or other place where the sample of breath may be furnished; and

        (b)     remain there until he or she has furnished the sample of breath and been given the certificate referred to in subsection (8) or until 3 hours after the carrying out of the rail safety work, whichever is the sooner.

    (4)     In addition, for the purposes of section 83(1)(f), the transport safety officer or police officer may require the rail safety worker to remain at the place at which the rail safety worker is required to remain for the purposes of the drug assessment until—

        (a)     the person has furnished the sample of breath and been given the certificate referred to in subsection (8) and the drug assessment has been carried out; or

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

whichever is the sooner.

    (5)     If the rail safety worker is required to furnish a sample of breath for analysis, the rail safety worker must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.

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

    (7)     A breath analysing instrument referred to in this section must be operated by a person authorised to do so by the Chief Commissioner of Police.

    (8)     As soon as practicable after a sample of a rail safety worker's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the rail safety worker whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.

    (9)     A rail safety worker must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

    (10)     The person who required a sample of breath under section 83(1) from a rail safety worker may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of blood for analysis if it appears to him or her that—

        (a)     the rail safety worker is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or

        (b)     the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by the rail safety worker for any reason whatsoever—

and for that purpose may further require that rail safety worker to accompany a transport safety officer or police officer to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

S. 85(11) repealed by No. 68/2017 s. 97.

    *     *     *     *     *

    (12)     A rail safety worker who allows the taking of a sample of his or her blood in accordance with subsection (10) must not be convicted or found guilty of refusing to furnish under section 83(1) a sample of breath for analysis.

    (13)     A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (10).

Penalty:     $10 000.

    (14)     No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (10).

S. 86 substituted by No. 23/2013 s. 89.



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