Harbors and Navigation Act 1993

An authorised person may require—

a person who is operating a vessel or who has operated a vessel; or

a person who is or was a member of the crew of a vessel that is being operated or has been operated, and who is or was, or ought to be or to have been engaged in duties affecting the safe navigation, operation or use of the vessel, to submit to an alcotest or a breath analysis, or both.

An authorised person may direct a person who is apparently in charge of a vessel to stop the vessel 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.

A person must forthwith comply with a direction under subsection (2).

An alcotest or a breath analysis to which a person has been required to submit under this section may not be commenced more than 8 hours after—

the person ceased to operate a vessel; or

the person was a member of the crew of a vessel who was, or ought to have been, engaged in duties affecting the safe navigation, operation or use of the vessel.

The performance of an alcotest or a breath analysis that has been required under this section commences when a direction is first given by an authorised person that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.

A breath analysis may only be conducted by a person authorised by the

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 1 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 Division and any other Act.

A person required under this section to submit to an alcotest or a breath analysis must not refuse or fail to comply with all reasonable directions of an authorised person 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 the authorised person.

for a first offence—a fine of not less than $1 100 and not more than

for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.

It is a defence to a prosecution under subsection (8) that—

the requirement or direction to which the prosecution relates was not lawfully made; or

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—

the consequences of refusing or failing to comply with the requirement or direction; and

the person's right to request the taking of a blood sample under subsection (10);

there was, in the circumstances of the case, good reason for the defendant to refuse or fail to comply with the requirement or direction.

If a person 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 an authorised person that a sample of the person's blood be taken by a medical practitioner or registered nurse, an authorised person must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—

by a medical practitioner or registered nurse nominated by the person;

if—

it becomes apparent to the authorised person 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;

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.

A person is not entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—

the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against the person;

the person consumed alcohol after the person last operated a vessel or attempted to put a vessel in motion and before the requirement was made or the direction was given.

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 sample of the person's blood was taken in accordance with subsection (10);

the person made a request as referred to in that subsection, but—

an authorised person failed to facilitate the taking of a sample of the person's blood as required by that subsection; or

a medical practitioner or registered nurse was not reasonably available for the purpose of taking such a sample; or

the taking of a sample of a person's blood in accordance with subsection (10) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.

In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous prescribed alcohol or drug offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed.

If a person—

refuses or fails to comply with a direction under this section; or

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 operating a vessel in contravention of this Division.

Subsection (14) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other