Road Traffic Act 1961

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—

is driving, or has driven, a motor vehicle; or

is attempting, or has attempted, to put a motor vehicle in motion; or

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.

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.

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

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.

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.

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.

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.

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.

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.

If—

a person has engaged in conduct of a kind described in subsection (1)(a),

or (c) involving a motor vehicle; and

such conduct occurred while a child under the age of 16 years was present in or on that vehicle; and

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).

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.

It is a defence to a prosecution under subsection (3) or (3a) 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 (4a);

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.

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—

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

if—

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

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.

No person is 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 themself; or

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.

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 (4a);

the person made a request as referred to in subsection (4a), but—

a police officer 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 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.

If a court convicts a person of an offence against subsection (3) or (3a), the following provisions apply:

the court must order that the person be disqualified from holding or obtaining a driver's licence—

in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or

in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;

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;

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;

the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor

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.

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 driving a vehicle in contravention of this Division.

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.

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