South Australian Current Acts South Australian Current Acts47E—Police may require alcotest or breath analysis
(1) Subject to this
Act, if a police officer (whether or not performing duties at or in connection
with a driver testing station) believes on reasonable grounds that a
person—
(a) is
driving, or has driven, a motor vehicle; or
(b) is
attempting, or has attempted, to put a motor vehicle in motion; or
(c) is
acting, or has acted, as a qualified supervising driver for the holder of a
permit or licence,
the police officer may require the person to submit to an alcotest or a
breath analysis, or both.
(2) A police officer
may direct a person driving a motor vehicle to stop the vehicle and may give
other reasonable directions for the purpose of making a requirement under this
section that a person submit to an alcotest or a breath analysis.
(2a) A person must
forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(2ab) A person must
not, in the exercise of random testing powers, be required to submit to a
breath analysis unless an alcotest conducted under subsection (1)
indicates that the prescribed concentration of alcohol may be present in the
blood of the person.
(2b) Without
derogating from section 47DA or 47EA, an alcotest or breath analysis to
which a person has been required to submit under subsection (1) may not
be commenced more than 8 hours after the conduct of the person giving rise to
the requirement.
(2d) The performance
of an alcotest or breath analysis commences when a direction is first given by
a police officer that the person concerned exhale into the alcotest apparatus
or breath analysing instrument to be used for the alcotest or breath analysis.
(2e) The regulations
may prescribe the manner in which an alcotest or breath analysis is to be
conducted and may, for example, require that more than one sample of breath is
to be provided for testing or analysis and, in such a case, specify which
reading of the apparatus or instrument will be taken to be the result of the
alcotest or breath analysis for the purposes of this and any other Act.
(3) A person required
under this section to submit to an alcotest or breath analysis must not refuse
or fail to comply with all reasonable directions of a police officer in
relation to the requirement and, in particular, must not refuse or fail to
exhale into the apparatus by which the alcotest or breath analysis is
conducted in accordance with the directions of a police officer.
Penalty:
(a) for
a first offence—a fine of not less than $1 100 and not more than
$1 600;
(b) for
a subsequent offence—a fine of not less than $1 900 and not more
than $2 900.
(a) a
person has engaged in conduct of a kind described in subsection (1)(a),
(b) or (c) involving a motor vehicle; and
(b) such
conduct occurred while a child under the age of 16 years was present in
or on that vehicle; and
(c) the
person refuses or fails to comply with a direction of a police officer (given
in relation to such conduct) in contravention of subsection (3),
the person commits an offence against this subsection and is liable to the
same penalty as is prescribed for an offence against subsection (3).
(3b) If a person is
charged with an offence against subsection (3a) but the court is not
satisfied that an offence against that subsection has been established beyond
reasonable doubt, the person may be convicted, on that charge, of an offence
against subsection (3) if the court is satisfied that an offence against
subsection (3) has been so established.
(4) It is a defence to
a prosecution under subsection (3) or (3a) that—
(a) the
requirement or direction to which the prosecution relates was not lawfully
made; or
(ab) the
person was not allowed the opportunity to comply with the requirement or
direction after having been given the prescribed oral advice in relation
to—
(i)
the consequences of refusing or failing to comply with
the requirement or direction; and
(ii)
the person's right to request the taking of a blood
sample under subsection (4a); or
(b)
there was, in the circumstances of the case, good cause for the refusal or
failure of the defendant to comply with the requirement or direction.
(4a) If a person
refuses or fails to comply with the requirement or direction under this
section by reason of some physical or medical condition of the person and
forthwith makes a request of a police officer that a sample of the person's
blood be taken by a medical practitioner or registered nurse, a police officer
must do all things reasonably necessary to facilitate the taking of a sample
of the person's blood—
(a) by a
medical practitioner or registered nurse nominated by the person; or
(b)
if—
(i)
it becomes apparent to the police officer that there is
no reasonable likelihood that a medical practitioner or registered nurse
nominated by the person will be available to take the sample within 1 hour of
the time of the request at some place not more than 10 kilometres distant from
the place of the request; or
(ii)
the person does not nominate a particular
medical practitioner or registered nurse,
by any medical practitioner or registered nurse who is available to take the
sample.
(5) No person is
entitled to refuse or fail to comply with a requirement or direction under
this section on the ground that—
(a) the
person would, or might, by complying with that requirement or direction,
furnish evidence that could be used against themself; or
(b) the
person consumed alcohol after the person last drove a motor vehicle or
attempted to put a motor vehicle in motion and before the requirement was made
or the direction given.
(5a) A person may not
raise a defence that the person had good cause for a refusal or failure to
comply with a requirement or direction under this section by reason of some
physical or medical condition of the person unless—
(a) a
sample of the person's blood was taken in accordance with
subsection (4a); or
(b) the
person made a request as referred to in subsection (4a), but—
(i)
a police officer failed to facilitate the taking of a
sample of the person's blood as required by that subsection; or
(ii)
a medical practitioner or registered nurse was not
reasonably available for the purpose of taking such a sample; or
(c) the
taking of a sample of the person's blood in accordance with
subsection (4a) was not possible or reasonably advisable or practicable
in the circumstances by reason of some physical or medical condition of the
person.
(6) If a court
convicts a person of an offence against subsection (3) or (3a), the
following provisions apply:
(a) the
court must order that the person be disqualified from holding or obtaining a
driver's licence—
(i)
in the case of a first offence—for such period,
being not less than twelve months, as the court thinks fit; or
(ii)
in the case of a subsequent offence—for such
period, being not less than three years, as the court thinks fit;
(b) the
disqualification prescribed by paragraph (a) cannot be reduced or
mitigated in any way or be substituted by any other penalty or sentence
unless, in the case of a first offence, the court is satisfied, by evidence
given on oath, that the offence is trifling, in which case the court may order
a period of disqualification that is less than the prescribed minimum period
but not less than one month;
(d) if
the person is the holder of a driver's licence—the disqualification
operates to cancel the licence as from the commencement of the period of
disqualification;
(e) the
court may, if it thinks fit to do so, order that conditions imposed by
section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's
licence issued to the person after the period of disqualification be effective
for a period greater than the period prescribed by that section.
(7) In determining
whether an offence is a first or subsequent offence for the purposes of this
section, any previous drink driving offence or drug driving offence for which
the defendant has been convicted will be taken into account, but only if the
previous offence was committed within the prescribed period immediately
preceding the date on which the offence under consideration was committed.
(a)
refuses or fails to comply with a direction under this section; or
(b)
submits to an alcotest and the alcotest indicates that the prescribed
concentration of alcohol may be present in the blood of the person,
there will be reasonable ground to suspect that the prescribed
concentration of alcohol is present in the person's blood for the purposes of
the exercise of any power conferred on a police officer (including a power of
arrest) to prevent the person committing an offence by driving a vehicle in
contravention of this Division.
(7b)
Subsection (7a) does not limit the circumstances in which such a power
may otherwise be exercised by a police officer under this or any other Act.
(8) The Commissioner
of Police must, in the Commissioner's annual report to the Minister
responsible for the administration of the Police Act 1998 , include the
numbers of drivers required to submit to an alcotest in the course of the
exercise of random testing powers (otherwise than at breath testing stations
established in accordance with section 47DA).