Oral fluid testing and analysis
55E Oral fluid testing and analysis
In this section—
S. 55E(1) def. of authorised officer amended by Nos 50/2012 s. 29(7), 70/2013 s. 4(Sch. 2 item 44.8), 37/2014 s. 10(Sch. item 147.14(a)), substituted by No. 59/2015 s. 29(1)(a), amended by Nos 3/2017 s. 50(Sch. 1 item 9.9), 68/2017 s. 79(4)(a), 49/2019 s. 116(Sch. 1 item 129).
authorised officer means—
a police officer or police custody officer authorised in writing under subsection (6) by the Chief Commissioner of Police; or
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an employee in the Department authorised in writing under subsection (6) by the Secretary; or
an employee in the Department authorised in writing under subsection (6) by the Head, Transport for Victoria;
S. 55E(1) def. of enforcement officer amended by Nos 50/2012 s. 29(7), 70/2013 s. 4(Sch. 2 item 44.8), 59/2015 s. 29(1)(b), 49/2019 s. 116(Sch. 1 item 130).
enforcement officer means an employee in the Department authorised under section 55D(2) for the purposes of section 55D.
S. 55E(2) amended by No. 37/2014 s. 10(Sch. item 147.14(b)(i)).
If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and—
S. 55E(2)(a) amended by No. 37/2014 s. 10(Sch. item 147.14(b)(ii)).
the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or
S. 55E(2)(b) amended by No. 37/2014 s. 10(Sch. item 147.14(b)(ii)).
the person, in the opinion of the police officer or enforcement officer, refuses or fails to carry out the test in the manner specified in section 55D(6)—
any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer to a place or vehicle where the sample is to be provided and to remain there until—
the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or
3 hours after the driving, being an occupant of or being in charge of the motor vehicle—
whichever is the sooner.
Example
A person may be required to go to a police station, a public building, a booze bus or a police car to provide a sample of oral fluid under this section.
S. 55E(3) amended by No. 37/2014 s. 10(Sch. item 147.14(c)).
A police officer may require any person who is required to undergo an assessment of drug impairment under section 55A or to furnish a sample of breath for analysis by a breath analysing instrument under section 55 to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the assessment or furnishing the sample of breath until—
the person has provided the sample of oral fluid and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59 and the assessment has been carried out or the sample of breath has been furnished (as the case requires); or
3 hours after the driving, being an occupant of or being in charge of the motor vehicle—
whichever is the sooner.
The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.
The person who required a sample of oral fluid to be provided under subsection (2) or (3) may require the person who provided it to provide one or more further samples if it appears to him or her that the prescribed device is incapable of testing for the presence in the sample, or each of the samples, previously provided of a prescribed illicit drug because the amount of sample provided was insufficient or because of a power failure or malfunctioning of the device or for any other reason whatsoever.
S. 55E(6) amended by Nos 50/2012 s. 29(8), 70/2013 s. 4(Sch. 2 item 44.8), 37/2014 s. 10(Sch. item 147.14(c)), substituted by No. 59/2015 s. 29(2).
Only the following persons may carry out the procedure for the provision of a sample of oral fluid under this section—
a police officer or police custody officer authorised in writing by the Chief Commissioner of Police for the purposes of this section; or
S. 55E(6)(b) repealed by No. 49/2019 s. 116(Sch. 1 item 131(a)).
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S. 55E(6)(c) amended by Nos 3/2017 s. 50(Sch. 1 item. 9.10(a)), 49/2019 s. 116(Sch. 1 item 131(b)).
an employee in the Department authorised in writing by the Secretary for the purposes of this section; or
S. 55E(6)(d) inserted by No. 3/2017 s. 50(Sch. 1 item. 9.10(b)), amended by No. 49/2019 s. 116(Sch. 1 item 131(b)).
an employee in the Department authorised in writing by the Head, Transport for Victoria for the purposes of this section.
S. 55E(7) amended by Nos 37/2014 s. 10(Sch. item 147.14(d)), 59/2015 s. 29(3), 3/2017 s. 50(Sch. 1 item 9.11), 49/2019 s. 116(Sch. 1 item 132).
The Chief Commissioner of Police may only authorise a police officer or a police custody officer, and the Secretary or the Head, Transport for Victoria may only authorise an enforcement officer, for the purposes of this section if satisfied that the police officer, police custody officer or enforcement officer (as the case requires) has the appropriate training to carry out the prescribed procedure for the provision of a sample of oral fluid under this section.
A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.
S. 55E(9) substituted by No. 28/2009 s. 12.
A person required to provide a sample of oral fluid under this section must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the authorised officer, a sufficient sample of oral fluid has been captured by the device or unit.
S. 55E(9A) inserted by No. 28/2009 s. 12.
An authorised officer who, under this section, is requiring another person to provide a sample of oral fluid may give any reasonable direction as to the physical actions that are necessary for the person to provide the sample.
A person is not obliged to provide a sample of oral fluid under this section if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.
S. 55E(11) amended by No. 37/2014 s. 10(Sch. item 147.14(e)).
If a test by a prescribed device of a sample of oral fluid provided under this section indicates, in the opinion of the authorised officer who carried out the procedure in the course of which the sample was provided, that the person's oral fluid contains a prescribed illicit drug, the authorised officer must deliver a part of the sample to the police officer or the enforcement officer who required the sample to be provided and another part to the person by whom the sample was provided.
A person must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section 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.
S. 55E(13) amended by No. 37/2014 s. 10(Sch. item 147.14(e)).
The person who required a sample of oral fluid to be provided under subsection (2) or (3) may require that person to allow a registered medical practitioner or an approved health professional nominated by the person who required the sample to take from him or her a sample of that person's blood for analysis if it appears to him or her that—
that person is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition; or
the prescribed device is incapable of testing for the presence in the sample of a prescribed illicit drug for any reason whatsoever—
and for that purpose may further require that person to accompany a police officer to a place where the sample of blood is to be taken and to remain there until the sample has been taken or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is the sooner.
S. 55E(14) repealed by No. 70/2016 s. 32.
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A person who allows the taking of a sample of his or her blood in accordance with subsection (13) must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section.
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 (13).
- Penalty applying to this subsection: 12 penalty units.
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 (13).
S. 55E(18) amended by No. 37/2014 s. 10(Sch. item 147.14(e)).
A person who is required under this section to provide a sample of oral fluid may, immediately after being given a part of the sample under subsection (11), request the person making the requirement to arrange for the taking in the presence of any police officer (or, if the requirement for the provision of the sample was made by an enforcement officer, any police officer or any enforcement officer) of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the police officer or the enforcement officer in whose presence the sample is taken.
S. 55E(19) repealed by No. 70/2016 s. 32.
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Nothing in subsection (18) relieves a person from any penalty under section 49(1)(eb) for refusing to provide a sample of oral fluid.
Evidence derived from a sample of oral fluid provided in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (18) if reasonable efforts were made to comply with the request.
S. 55E(22) amended by Nos 37/2014 s. 10(Sch. item 147.14(f)(i)), 59/2015 s. 29(4), 49/2019 s. 116(Sch. 1 item 133(a)).
In any proceeding under this Act—
S. 55E(22)(a) amended by Nos 50/2012 s. 29(8), 70/2013 s. 4(Sch. 2 item 44.8), 49/2019 s. 116(Sch. 1 item 133(a)).
the statement of any employee in the Department that on a particular date he or she was authorised under section 55D(2) for the purposes of section 55D; or
S. 55E(22)(b) amended by Nos 50/2012 s. 29(8), 70/2013 s. 4(Sch. 2 item 44.8), 3/2017 s. 50(Sch. 1 item 9.11), 49/2019 s. 116(Sch. 1 item 133(a)(b)).
a certificate purporting to be issued by the Head, Transport for Victoria or signed by the Secretary, as the case requires, certifying that a particular employee in the Department named in it is authorised under section 55D(2) for the purposes of section 55D; or
S. 55E(22)(c) amended by Nos 50/2012 s. 29(8), 70/2013 s. 4(Sch. 2 item 44.8), 37/2014 s. 10(Sch. item 147.14(f)(ii)), 49/2019 s. 116(Sch. 1 item 133(a)).
the statement of any police officer, police custody officer or employee in the Department that on a particular date he or she was authorised under subsection (6) for the purposes of this section; or
S. 55E(22)(d) amended by Nos 50/2012 s. 29(8), 70/2013 s. 4(Sch. 2 item 44.8), 37/2014 s. 10(Sch. item 147.14(f)(ii)), 68/2017 s. 79(4)(b), 49/2019 s. 116(Sch. 1 item 133(a)(c)).
a certificate purporting to be signed by the Chief Commissioner of Police, issued by the Head, Transport for Victoria or signed by the Secretary, as the case requires, certifying that a particular police officer, police custody officer or employee in the Department named in it is authorised under subsection (6) for the purposes of this section—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer, police custody officer or employee in the Department.
S. 56 amended by No. 44/1989 s. 41(Sch. 2 item 34.4), amended by No. 19/1991 s. 11(1).
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