Schedule 1A makes further provision regulating blood and oral fluid sample processes for the purposes of this Division.
72C—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood
Where a person submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood.
73—Evidence
(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, if the requirements of this Act in relation to breath analysing instruments and breath analysis, including subsections (5) and (6), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 3 hours.
(2) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with Schedule 1A or in accordance with the regulations; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(3) If, in any proceedings for an offence, it is proved—
(a) that the defendant—
(i) operated a vessel; or
(ii) was a member of a crew of a vessel that was being operated and was or ought to have been engaged in duties affecting the safe navigation, operation or use of the vessel; and
(b) that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 3 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).
(4) No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin‑operated breath testing or breath analysing machine installed in a hotel or other licensed premises.
(5) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(6) If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the instrument is the prescribed concentration of alcohol, the person operating the breath analysing instrument must immediately—
(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
(7) In proceedings for an offence a certificate—
(a) purporting to be signed by the Minister and to certify that a person named in the certificate is an authorised person; or
(b) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(c) purporting to be signed by an authorised person and to certify that—
(i) a breath analysing instrument used by the person was in proper order and was properly operated; and
(ii) the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
will be accepted, in the absence of proof to the contrary, as proof of the matters so certified.
(8) A certificate purporting to be signed by an authorised person and to certify that—
(a) a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and
(b) the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
(9) A certificate purporting to be signed by an authorised person and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matter so certified.
(10) Subject to subsection (22), a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
(11) Subject to subsection (22), in legal proceedings a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b) the breath analysing instrument produced a reading specified in the certificate; and
(c) a statement in writing required by subsection (5) was delivered in accordance with that subsection,
will be accepted, in the absence of proof to the contrary, as proof of the matters so certified.
(12) A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a) that on a date and at a time stated in the certificate, a person named in the certificate submitted to a breath analysis; and
(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (6)(a); and
(c) that—
(i) the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii) at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (6)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (6) were complied with in relation to the person.
(13) A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (6)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved—
(a) that the defendant delivered the kit unopened to a medical practitioner or registered nurse for use in taking a sample of the defendant's blood; and
(b) by evidence of the medical practitioner or registered nurse, that the medical practitioner or registered nurse was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (2).
(14) Subject to subsection (22), an apparently genuine document purporting to be a certificate under Schedule 1A, or a copy of such a certificate, and purporting to be signed by an authorised person, medical practitioner, registered nurse or analyst under Schedule 1A is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.
(15) If a certificate of an analyst relating to a sample of blood taken under Schedule 1A is received in evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken.
(16) If it is proved by the prosecution in the proceedings for an offence that a concentration of alcohol was present in the defendant's blood at the time at which a sample of blood was taken under Schedule 1A, it will be conclusively presumed that concentration of alcohol was present in the defendant's blood throughout the period of 3 hours immediately preceding the taking of the sample.
(17) If certificates of an authorised person and analyst, or a medical practitioner and analyst, or a registered nurse and analyst, under Schedule 1A are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.
(18) If a certificate of an analyst relating to a sample of oral fluid or blood taken under Schedule 1A is received as evidence in proceedings before a court and states that a drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the drug stated in the certificate was present in the sample when the sample was taken.
(19) If it is proved by the prosecution in proceedings for an offence that a drug was present in the defendant's oral fluid or blood at the time at which a sample of oral fluid or blood was taken under Schedule 1A, it will be conclusively presumed that the drug was present in the defendant's oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample.
(20) A certificate purporting to be signed by an authorised person and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
(21) A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified.
(21a) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person appointed under Part 2 and named in the certificate is authorised by the Commissioner of Police to conduct drug screening tests; or
(b) purporting to be signed by a police officer or a person authorised by the Commissioner of Police to conduct drug screening tests and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted,
is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
(22) A certificate referred to in subsection (10), (11) or (14) cannot be received as evidence in proceedings for an offence—
(a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.
73A—Breath analysis where drinking occurs after operation of vessel
(1) This section applies to proceedings for an offence against this Division in which the results of a breath analysis under this Division are relied on to establish the commission of the offence.
(2) If in proceedings to which this section applies the defendant satisfies the court—
(a) that the defendant consumed alcohol during the relevant period; and
(b) in a case where the defendant was required to submit to the breath analysis after involvement of the vessel in an accident—
(i) that the requirements of section 76 were complied with in relation to the accident; and
(ii) that alcohol was not consumed by the defendant during the relevant period while at the scene of the accident; and
(c) that, after taking into account the quantity of alcohol consumed by the defendant during the relevant period and its likely effect on the concentration of alcohol indicated as being present in the defendant's blood by the breath analysis, the defendant should not be found guilty of the offence charged or, in the case of an offence against section 70(2), should be found guilty of an offence of a less serious category,
the court may, despite the other provisions of this Division, find the defendant not guilty of the offence charged or guilty of an offence of a less serious category.
relevant period means the period—
(a) commencing when 3 hours have elapsed since the conduct of the defendant giving rise to the making of the requirement under section 71(1) that the defendant submit to the breath analysis; and
(b) ending when the performance of the breath analysis commences.
73B—Oral fluid analysis or blood test where consumption of prescribed drug occurs after operation of vessel
(1) This section applies to proceedings for an offence against section 70(1) or (3) in which the results of an oral fluid analysis or a blood test under section 72 are relied on to establish the commission of the offence.
(2) If in proceedings to which this section applies the defendant satisfies the court—
(a) that the defendant consumed the prescribed drug during the relevant period; and
(b) in a case where the defendant was required to submit to a drug screening test after involvement of the vessel in an accident—
(i) that the requirements of section 76 were complied with in relation to the accident; and
(ii) that the prescribed drug was not consumed after an authorised person first exercised powers under section 71 preliminary to the performance of the alcotest or breath analysis referred to in section 72,
the court may, despite the other provisions of this Act, find the defendant not guilty of the offence charged.
(3) In subsection (2)—
relevant period means the period—
(a) commencing when 3 hours have elapsed since the conduct of the defendant giving rise to the making of the requirement referred to in section 72 that the defendant submit to the alcotest or breath analysis; and
(b) ending when the performance of the oral fluid analysis or blood test (as the case may be) commences.
74—Compulsory blood tests of injured persons including water skiers
(1) If a vessel is involved in an accident and, within 8 hours after the accident, a person apparently over the age of 10 years who was injured in the accident attends at, or is admitted into, a hospital for the purpose of receiving treatment for that injury, it is the duty of the medical practitioner by whom that patient is attended to ensure that, as soon as practicable, a sample of that patient's blood (despite the fact that the patient may be unconscious) is taken in accordance with this section.
(2) If a vessel is involved in an accident and a person apparently over the age of 10 years who was injured in the accident is dead on arrival at the hospital, or dies before a sample of blood has been taken in accordance with this section and within 8 hours after admission to the hospital, it is the duty of the medical practitioner who, under Part 5 of the Coroners Act 2003, notifies the State Coroner or a police officer of the death—
(a) to ensure that a sample of blood from the body of the deceased is taken in accordance with this section; or
(b) to notify the State Coroner as soon as practicable that, in view of the circumstances in which the death of the deceased occurred, a sample of blood should be taken from the body under this section.
(3) A sample of blood under subsection (1) or (2) may be taken by a medical practitioner or a registered nurse.
(4) The State Coroner, on receiving a notification under subsection (2), may authorise and direct a pathologist to take a sample of blood from the body of the deceased in accordance with this section.
(18) A person who, on being requested to submit to the taking of a sample of blood under this section, refuses or fails to comply with that request and who—
(a) fails to assign a reason based on genuine medical grounds for that refusal or failure; or
(b) assigns a reason for that refusal or failure that is false or misleading; or
(c) makes any other false or misleading statement in response to the request,
(a) for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
(19) 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.