Police powers to require breath or blood sample
66 Police powers to require breath or blood sample
A police officer may require the driver or person in charge of a motor vehicle, or any person the police officer has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of the person’s breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first‑mentioned requirement was made.
A police officer may —
call upon the driver of a motor vehicle to stop the vehicle;
direct the driver of a motor vehicle to wait at a place indicated by the police officer,
in order that a requirement may be made under subsection (1).
Where a police officer —
has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use,
the police officer may require any person who the police officer has reasonable grounds to believe may have been the driver or person in charge of the motor vehicle at that time to provide a sample of the person’s breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first‑mentioned requirement was made.
Where a person required under subsection (1) or (1a) to provide a sample of breath for a preliminary test is in a motor vehicle, a police officer may require the person to leave the vehicle for the purpose of providing the sample.
Where —
a person having provided a sample of the person’s breath for a preliminary test —
it appears to a police officer that the preliminary test indicates that the person has a blood alcohol content of or above 0.05 g of alcohol per 100 ml of blood; or
it appears to a police officer that the preliminary test indicates that there is alcohol present in the blood of the person and the police officer has reasonable grounds to believe that the person is a person to whom section 62B(4) or (5) or 64A(1) applies or that the motor vehicle concerned is a motor vehicle to which section 64A(4) applies;
or
a person having been so required, refuses or fails to provide, or appears to a police officer to be incapable of providing a sample of the person’s breath for a preliminary test or refuses or fails to provide, or appears to a police officer to be incapable of providing, a sample of the person’s breath in sufficient quantity to enable a preliminary test to be carried out; or
a police officer has reasonable grounds to believe that a person has committed an offence against section 63; or
a police officer —
has reasonable grounds to believe that an offence against section 59(1)(a), (ba) or (bb) or 59A(1)(a), (ba) or (bb) has been committed; and
does not know, or has doubt as to, who was the driver of the motor vehicle concerned,
but has reasonable grounds to believe that a person may have been the driver of the motor vehicle; or
a police officer has reasonable grounds to believe that —
an offence against section 59(1)(a), (ba) or (bb) or 59A(1)(a), (ba) or (bb) has been committed by a learner driver; and
a person may have been an instructor providing driving instruction to that learner driver at the time of that offence;
or
a police officer —
has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use,
but has reasonable grounds to believe that a person may have been the driver or person in charge of the motor vehicle at that time and that, if the person was, they have committed an offence against section 63; or
a police officer has reasonable grounds to believe that —
the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
a learner driver was driving or attempting to drive the motor vehicle at the time of that presence or use; and
a person may have been an instructor providing driving instruction to the learner driver at that time; and
at that time, the person would have committed an offence against section 63 if the person had been driving a motor vehicle,
a police officer may require that person to provide a sample of the person’s breath for analysis or to allow a prescribed sample taker to take a sample of the person’s blood for analysis or to allow a sample of blood to be so taken pursuant to the provisions of subsections (4) and (5), and for the purposes of this subsection may require that person to accompany a police officer to a police station or some other place, and may require that person to wait at any such police station or place.
A person who is required to supply a sample of the person’s breath for a preliminary test or for analysis must comply with that requirement by providing the sample of their breath into approved apparatus in accordance with the directions of a police officer or an authorised person, as the case may be.
A person must not be required under subsection (2) to provide a sample of the person’s breath for analysis if it appears to a police officer that —
[(a) deleted]
the sample of breath could not be provided within 4 hours after the time at which driving, attempted driving, use or management of a motor vehicle in circumstances giving rise to the requirement is believed to have taken place; or
because of the person’s physical condition they are incapable of providing the specimen of breath or a specimen of breath in sufficient quantity for analysis.
Where —
a police officer might require a person to provide a sample of the person’s breath for analysis under subsection (2) but is precluded from so doing by subsection (4) or section 68(11); or
a police officer might, by virtue of subsection (1) or (1a), require a person to provide a sample of the person’s breath for a preliminary test but it appears to the police officer that the physical condition of the person is such as to render the person incapable of providing a sample of the person’s breath in accordance with the directions of the police officer for a preliminary test,
then the police officer may require the person to allow a prescribed sample taker nominated by the police officer to take a sample of the person’s blood for analysis or where the person is incapable of complying with that requirement, that police officer may cause a prescribed sample taker to take a sample of the blood of the person for analysis.
A person must not be required to allow a prescribed sample taker to take a sample of the person’s blood, and a prescribed sample taker must not be caused to take a sample of the blood of a person under subsection (5) if it appears to the police officer that the sample cannot be taken within 4 hours after the time at which driving, attempted driving, use or management of a motor vehicle in circumstances giving rise to the requirement is believed to have taken place.
[(6a) deleted]
Subsection (8B) applies if a police officer has reasonable grounds to believe that —
the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of serious bodily harm to, or the death of, a casualty; and
a person may have been the driver or person in charge of the motor vehicle at the time of that presence or use.
In subsection (7) —
serious bodily harm, in relation to a casualty,, means bodily harm that the police officer has reasonable grounds to believe is likely to require the attendance of the casualty at a hospital (whether or not that is practicable).
If this subsection applies, a police officer may —
require the person to allow a prescribed sample taker to take a sample of the person’s blood for analysis; or
where the person is incapable of complying with that requirement — cause a prescribed sample taker to take a sample of the person’s blood for analysis.
For the purposes of subsection (8B), a police officer may require the person to accompany a police officer to a police station or some other place, and may require the person to wait at the police station or place.
A police officer must not make a requirement under subsection (8B)(a), or cause a prescribed sample taker to take a sample under subsection (8B)(b), if it appears to the police officer that the sample cannot be taken or provided within 12 hours after the time of the presence or use of the motor vehicle referred to in subsection (7)(a).
[(9) deleted]
Where a person is apparently unconscious or seriously injured a police officer must facilitate the provision of medical assistance for that person.
A police officer may require a person to allow a prescribed sample taker nominated by the police officer to take a sample of the person’s blood for analysis, and require the person to accompany a police officer to a place and wait at that place for the purposes of taking the sample, if —
the person provides a sample of their breath for analysis pursuant to a requirement made under subsection (2)(c), (ca), (cb), (d) or (e); and
the analysis result obtained pursuant to section 68 indicates —
that there is no alcohol present in the blood of the person; or
that the person’s blood alcohol content is such that it does not reasonably explain the conduct, condition or appearance of the person by reason of which the requirement was made.
If it appears to a police officer that a blood sample cannot be taken from a person under subsection (11) within 4 hours after the time at which driving, attempted driving, use or management of a vehicle in circumstances giving rise to the requirement under subsection (11) is believed to have taken place —
the person must not be required to allow a prescribed sample taker to take a sample of the person’s blood under that subsection; and
a prescribed sample taker must not be caused to take a sample of the blood of a person under that subsection.
[Section 66 amended: No. 71 of 1979 s. 10; No. 81 of 1980 s. 8; No. 105 of 1981 s. 12 and 19; No. 82 of 1982 s. 15; No. 121 of 1987 s. 6; No. 11 of 1988 s. 12; No. 16 of 1988 s. 4; No. 13 of 1992 s. 11; No. 50 of 1997 s. 9; No. 39 of 2000 s. 36; No. 44 of 2004 s. 9; No. 54 of 2006 s. 17(3); No. 6 of 2007 s. 8; No. 39 of 2007 s. 11 and 36; No. 51 of 2010 s. 7; No. 14 of 2011 s. 12; No. 8 of 2012 s. 37; No. 2 of 2015 s. 8; No. 25 of 2016 s. 34, 40 and 47; No. 27 of 2020 s. 15.]
[Section 66. Modifications to be applied in order to give effect to Cross‑border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
66A. Drug impairment, police powers to require driver assessment for etc.
In this section an instructor providing driving instruction to a learner driver is not to be taken, under section 49AA, to be in charge of the motor vehicle driven by the learner driver.
A police officer may require —
the driver or person in charge of a motor vehicle; or
any person the police officer has reasonable grounds to believe was the driver or person in charge of a motor vehicle,
to undergo an assessment of drug impairment if a police officer has reasonable grounds to believe that the person is, or was while driving or attempting to drive the motor vehicle, impaired by something, other than alcohol alone, affecting the person’s capacity to drive a motor vehicle.
Where a police officer —
has reasonable grounds to believe that the presence of a motor vehicle has occasioned, or its use has been an immediate or proximate cause of, personal injury or damage to property; and
does not know, or has doubt as to, who was the driver or person in charge of the motor vehicle at the time of that presence or use,
but has reasonable grounds to believe —
that the person may have been the driver or person in charge of the motor vehicle at that time; and
that the person was at that time impaired by something, other than alcohol alone, affecting the person’s capacity to drive a motor vehicle,
a police officer may require the person to undergo an assessment of drug impairment.
For the purposes of subsection (1) or (2) a police officer may require a person who is required to undergo a driver assessment to wait at the place at which the requirement was made.
Where a person required under subsection (1) or (2) to undergo a driver assessment is in a motor vehicle, a police officer may require the person to leave the vehicle for the purpose of undergoing the assessment.
A person who is required to undergo a driver assessment shall comply with that requirement by undergoing the assessment in accordance with the directions of a police officer.
A person shall not be required to undergo a driver assessment if it appears to a police officer that —
the driver assessment could not be conducted within 4 hours after the time at which driving, attempted driving, use or management of a motor vehicle in circumstances giving rise to the requirement is believed to have taken place; or
because of the person’s physical condition the person is incapable of undergoing the driver assessment.
A driver assessment shall be conducted by a police officer in accordance with regulations prescribing the procedure for assessing drug impairment.
[Section 66A inserted: No. 6 of 2007 s. 9; amended: No. 8 of 2012 s. 37; No. 25 of 2016 s. 48.]
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