Road Traffic Act 1961

Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test.

If—

a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or

a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E that was made in prescribed circumstances, a police officer may require the person to submit to an oral fluid analysis or a blood test.

If a person submits to an oral fluid analysis in compliance with a requirement made under subsection (2) but the person is unable to produce sufficient oral fluid for a sample to be taken, a police officer may require that the person submit to a blood test.

A police officer may give reasonable directions for the purpose of making a requirement under this section that a person submit to a drug screening test, oral fluid analysis or blood test.

A person must forthwith comply with a direction under subsection (3).

Without derogating from section 47DA or 47EA, a drug screening test, oral fluid analysis or blood test to which a person has been required to submit under this section may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement that the person submit to the alcotest or breath analysis.

The performance of a drug screening test, oral fluid analysis or blood test that has been required under this section commences when a direction is first given by a police officer that the person concerned provide a sample of oral fluid or blood (as the case may be) to be used for the drug screening test, oral fluid analysis or blood test.

A drug screening test may only be conducted by a police officer.

The regulations may prescribe the manner in which a drug screening test, oral fluid analysis or blood test is to be conducted.

A person required under this section to submit to a drug screening test, oral fluid analysis or blood test 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 allow a sample of oral fluid or blood to be taken in accordance with the directions of a police officer.

for a first offence—a fine of not less than $900 and not more than

for a subsequent offence—a fine of not less than $1 500 and not more than $2 200.

If—

a person has engaged in conduct of a kind described in section 47E(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 (9), the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (9).

If a person is charged with an offence against subsection (9a) 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 (9) if the court is satisfied that an offence against subsection (9) has been so established.

It is a defence to a prosecution under subsection (9) or (9a) 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

in the case of—

a drug screening test or an oral fluid analysis—the person's right to request the taking of a blood sample under subsection (11);

a blood test—the person's right to request an oral fluid analysis under subsection (12);

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 of whom a requirement is made or to whom a direction is given under this section relating to a drug screening test or oral fluid analysis refuses or fails to comply with the requirement or direction 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.

If a person of whom a requirement is made or to whom a direction is given under this section relating to a blood test refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that an oral fluid analysis be conducted, a police officer must do all things reasonably necessary to facilitate the conduct of an oral fluid analysis unless—

a requirement or direction under this section relating to a drug screening test or oral fluid analysis has been made of, or been given to, the person; and

—

the person refused or failed to comply with that requirement or direction on the ground of some physical or medical condition of the person and made a request under subsection (11) for a sample of the person's blood to be taken in accordance with that subsection; or

the person was unable to produce sufficient oral fluid for a sample to be taken.

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 a prescribed drug 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 relating to a drug screening test or oral fluid analysis 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 (11);

the person made a request as referred to in subsection (11), 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 (11) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.

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 relating to a blood test by reason of some physical or medical condition of the person unless—

an oral fluid analysis was conducted in accordance with subsection (12);

the person made a request as referred to in subsection (12), but a police officer failed to facilitate the conduct of an oral fluid analysis as required by that subsection; or

the taking of a sample of the person's oral fluid in accordance with subsection (12) 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 (9) or (9a), 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

in the case of a subsequent offence—for such period, being not less than 3 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 requirement or direction under this section; or

submits to a drug screening test and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid, there will be reasonable ground to suspect that a prescribed drug is present in the person's oral fluid 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 (18) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act.