Harbors and Navigation (Alcohol and Drug Testing) Regulations 2023

This instrument operationalises several core concepts that the Act uses more abstractly: prescribed class of offence, breath analysis procedure and admissible reading, voluntary/optional blood test, prescribed oral advice/written notice, custody and chain-of-evidence for biological samples, and the role of authorised persons, instrument operators, medical practitioners and analysts.

Prescribed class of offence (regulation 4)

• Regulation 4 lists offences that constitute a “prescribed class” for the definition of prescribed circumstances in section 4(1) of the Act. The list includes offences against sections 69, 69A, 70 and 85 of the Act, various numbered regulations in the Harbors and Navigation Regulations 2023, and offences under section 84 or regulations 113(2) or 114(2) if committed by a master or operator of a vessel. The effect is to trigger whatever procedural or evidential regime the Act links to “prescribed circumstances”.

Breath analysis mechanics and admissible reading (regulation 5)

• A person who submits to breath analysis must provide two separate breath samples, each not less than one litre (regulation 5(1)(a)-(b)).
• There must be an interval of not less than two minutes and not more than ten minutes between samples (regulation 5(1)(c)).
• If an instrument indicates an error, alcohol in the mouth, a >15% discrepancy between the two samples, or a failure to provide the second sample within 10 minutes, the sample(s) must be disregarded and the person may be required to provide two further samples, including possibly on a different instrument (regulation 5(2)(a)-(d)).
• For evidential purposes within Part 10 Division 4 and any other Act the operative reading is the lower admissible reading produced by the instrument from the compliant samples (regulation 5(3)).

Oral advice and written notice (regulations 6-8; Schedule 1)

• The regulations prescribe specific wording that authorised officers must use when advising a person who refuses or fails a test, or when a positive breath reading is recorded (Schedule 1 clauses 1-4). The text addresses criminal offence risk, available defences, and the process for obtaining a blood test kit and subsequent analysis.

Voluntary/optional blood test procedure (regulation 9; Schedule 2)

• If a person requests and receives an approved blood test kit, the sample must be taken by a medical practitioner or registered nurse chosen by the person (regulation 9(a)).
• The practitioner/nurse must divide the sample into two approximately equal containers provided in the kit, seal each with an adhesive seal bearing an identifying number, take steps to prevent adulteration or deterioration, and complete and sign a certificate in the form in Schedule 2 (regulation 9(b)-(h); Schedule 2 Part A).
• The original certificate and one sealed container go to the person; the other sealed container and a copy of the certificate must be delivered to a police officer or an approved courier and ultimately to Forensic Science SA for analysis (regulation 9(i)-(l)).
• Forensic Science SA must analyse the received container as soon as reasonably practicable and the analyst must complete a certificate of analysis stating the concentration of alcohol and any factors that might affect accuracy; that certificate must be posted to the person and copies retained and sent to the Minister and Commissioner (regulation 9(n)-(r)).

Sample retention and record keeping (regulations 10-12)

• The process for requesting a blood test kit is prescribed: the request may be oral or written, the operator or authorised person must complete the written request form in Schedule 3, obtain the person’s signature, attest to it, give the person the original (who may retain it), and deliver a copy to the operator or authorised person. The copy must be retained on behalf of the Minister for 12 months (regulation 10(1)-(2) and Schedule 3).
• Regulation 11 prescribes the retention period for blood and oral fluid sample containers as 12 months from the day the sample was taken.
• Regulation 12 requires an analyst’s certificate to identify any prescribed drug(s) found in a sample.

Interfacing bodies and approvals

• “Approved courier” is defined by reference to approval under the Road Traffic Act 1961 (regulation 3).
• Analysis is to be done by or under the supervision of an analyst at Forensic Science SA (regulation 9(n)).
• Delivery and retention obligations bring the Minister and Commissioner of Police into the record chain (regulation 9(q)-(r)).

Evidential presumption and rebuttal route

• Schedule 1 clause 3 and clause 4 restate the Act’s evidential presumption that a breath analyser reading accurately records blood alcohol at time of testing and over the preceding three hours (referencing section 73(1), (3) in the written notice text). The regulations therefore not only set procedural content but the exact mechanism by which an accused may rebut the breath-reading presumption: by obtaining a blood test conducted under the specified kit procedure and having it analysed (regulation 9 and Schedule 1 clauses 3-4).

Technical safeguards and potential failure points

• The instrument error and mouth alcohol rules (regulation 5(2)(a)-(b)), the 15% discrepancy rule (regulation 5(2)(c)), and the 10‑minute second-sample limit (regulation 5(2)(d)) are concrete, measurable procedural rules that specify when results are to be disregarded and further samples required.

The regulations are therefore both technical (specify sample sizes, seals, forms, timing, and descriptive wording) and procedural (prescribe rights and routes to optional testing, evidence delivery and retention).

These regulations affect several distinct groups by imposing duties, enabling rights, or creating procedural steps that alter operational behaviour.

Persons subject to alcohol or drug testing

• Masters, operators and crew members: Regulation 4 explicitly lists offences that, when committed by a master or operator of a vessel, are treated as a “prescribed class” of offence; the breath, oral fluid and blood testing provisions in the Act and these regulations apply to persons operating vessels and crew members who are engaged in duties affecting safe navigation (Schedule 1 clause 4, written notice, and broader Act references).
• Any person on whom an authorised person directs breath analysis, drug screening, oral fluid analysis or blood testing under the Act sections 71-73: the regulations prescribe how those tests must be conducted and the advice and notices that must be given (regulations 5-9 and Schedule 1).

Operational personnel and entities

• Authorised persons and breath analysing instrument operators: The regulations require operators to give prescribed oral advice (regulations 6-8, Schedule 1), to complete written request forms for blood test kits (regulation 10 and Schedule 3), and to follow the breath-analysis protocol (regulation 5). The operator or any other authorised person present must attest to the signature when a person requests a blood kit (regulation 10(1)(c)). Operators therefore carry evidentiary and administrative duties.
• Medical practitioners and registered nurses: Under regulation 9, the practitioner or nurse chosen by the person must take the sample, divide it into two approximately equal portions, seal them using provided adhesive seals, make reasonable efforts to prevent adulteration, complete the certificate in Schedule 2, witness the patient’s signature and deliver the containers/certificates as specified (regulation 9(b)-(j); Schedule 2). The practitioner/nurse therefore has professional and procedural duties beyond ordinary clinical practice, including chain-of-custody obligations.
• Forensic Science SA analysts: They must analyse the police-delivered container as soon as reasonably practicable, prepare an analyst’s certificate with specified content (regulation 9(n)-(o)), and send certificates to the person, Minister and Commissioner (regulation 9(p)-(r)).
• Police officers and approved couriers: Police officers or an approved courier receive the sealed police container and certificate from the practitioner/nurse and must deliver those items to Forensic Science SA (regulation 9(j)-(l)). “Approved courier” is a person approved under the Road Traffic Act 1961 for similar purposes (regulation 3). Police and couriers therefore form part of the evidence chain.

Administrative entities

• The Minister: a copy of the analyst’s certificate must be sent to or retained on behalf of the Minister (regulation 9(q)); the Minister also receives and retains copies of request forms for blood test kits for 12 months (regulation 10(2)).
• Commissioner of Police: receives a copy of the analyst’s certificate (regulation 9(r)).
• Agencies maintaining Forensic Science SA and the administrative records referenced are affected by the obligations to receive, analyse, and store samples and certificates.

Private third parties

• Laboratories or entities selected by a person to analyse the container they keep: Regulation 9(s) allows the person to cause the sample in the container delivered to them to be analysed. That creates a small market effect for private laboratories handling such samples and for practitioners who manage chain-of-custody.

Who pays and who arranges

• The text in Schedule 1 clauses 1 and 2 states that an authorised person will help the person to have a sample taken at Government expense if a blood sample is requested owing to a medical condition preventing breath testing. The regulations also require the operator to supply an approved blood test kit on written request (regulation 10). The regulations therefore create an expectation of government-arranged, or at least government-assisted, provision of the kit and assistance in obtaining the sample in specified circumstances.

Evidence and litigation actors

• Defendants and their legal representatives: The regulations create specific procedural ways to obtain material to challenge breath-analysis presumptions; legal advisers must be aware of the precise signature, sealing, and retention requirements for blood kits and analyst certificates to mount evidentiary challenges in proceedings against section 70 or 70(1) offences (Schedule 1 clauses 3-4 read with regulation 9 and Schedule 2).

In short, the regulations affect tested persons, instrument operators and authorised officers, medical practitioners and nurses taking blood, forensic analysts, police and couriers, and administrative agencies (Minister’s office, Forensic Science SA). Each of these groups receives prescriptive obligations or rights specified in the regulations.

The regulations impose clear procedural duties on authorised officers and medical practitioners, and confer rights on tested persons. These duties and rights create specific compliance and evidentiary pathways.

Duties imposed on authorised persons and operators

• Give prescribed oral advice and written notice: Regulations 6-8 require that the oral advice referred to in sections 71(9)(b), 72(11)(b) and 73(6)(a) of the Act must be the prescribed wording in Schedule 1 clauses 1-3, and the written notice for 73(6)(a) must be the wording in Schedule 1 clause 4. The operator therefore must use the exact prescribed words when advising the person (regulations 6-8; Schedule 1).
• Conduct breath analyses to technical specification: Under regulation 5, the operator must ensure two separate samples of at least one litre each are provided, that the interval between samples is 2-10 minutes, and manage disregard and recollection in specified instrument-error, mouth-alcohol, discrepancy, or timing failure situations (regulation 5(1)-(2)).
• Provide approved blood test kit and complete request forms: Regulation 10 requires operators or other authorised persons to complete the request form in Schedule 3 when a person asks for a blood kit, attest the person’s signature, give the person the original signed request form (or allow them to retain it) and deliver/retain a copy for 12 months on behalf of the Minister (regulation 10(1)-(2), Schedule 3).

Duties on medical practitioners and registered nurses

• Take blood and split into two labelled, sealed containers: Regulation 9(b)-(d) requires the practitioner/nurse to place the sample in approximately equal proportions into the two containers provided in the kit, ensure each contains sufficient blood for an accurate evaluation, and seal each container with the adhesive seal bearing the identifying number.
• Prevent adulteration and deterioration: Regulation 9(e) requires the practitioner or nurse to take reasonable measures to ensure the blood is not adulterated or deteriorated so that proper assessment is possible.
• Complete and sign a specific certificate: Regulation 9(f)-(h) requires completion and signing of the certificate in Schedule 2, and that the person’s signature be attested by the practitioner/nurse.
• Deliver containers and certificates correctly: Regulation 9(i)-(l) prescribes delivery of the original certificate and one sealed container to the person, delivery of the other sealed container and a copy of the certificate to police or an approved courier, and the obligation of those recipients to deliver to Forensic Science SA.
• Record the manner of transfer to police or courier in the certificate: Schedule 2 Part C requires the practitioner/nurse to indicate that they delivered one of the sealed containers to a police officer or approved courier and to mark their signature that they have provided the police container.

Duties on analysts and Forensic Science SA

• Analyse the police container promptly: Regulation 9(n) requires analysis as soon as reasonably practicable by or under the supervision of an analyst at Forensic Science SA and calculation of concentration in grams per 100 ml.
• Produce an analyst’s certificate with specified content and send it to the person, Minister and Commissioner: Regulation 9(o)-(r) prescribes the content of the analyst’s certificate and the distribution of copies.

Rights granted to the tested person

• Right to request a blood test kit: Regulation 10 allows a person who has received a positive breath result to request an approved blood test kit; Schedule 1 clause 3 and 4 explain the right and the steps the person must take (seek medical practitioner/nurse, do not consume further alcohol, sign the request form, not open the kit, etc.).
• Right to choose the medical practitioner or registered nurse who takes the sample: Regulation 9(a) explicitly gives the person the choice of who takes the sample.
• Right to retain one sealed container and have it independently analysed: Regulation 9(i) and 9(s) give the person the original signed certificate and one sealed container and the right to have that container analysed by a third-party laboratory if they wish.
• Right to a copy of analyst’s certificate by post: Regulation 9(p) requires that the analyst’s certificate be posted to the person at the address shown on the certificate accompanying the blood sample container.

Evidential consequences and defences

• The written notice (Schedule 1 clause 4) restates that a breath analysis result will be presumed accurate in proceedings under section 73(1) and (3), but that the person may challenge the presumption by obtaining and presenting blood test evidence done in accordance with the prescribed procedure (Schedule 1 clauses 3-4 read with regulation 9). The regulations therefore preserve a statutory rebuttal route that depends on strict adherence to the kit procedure.

Record retention and administrative duties

• The operator/Minister must retain copies of the request form for 12 months (regulation 10(2)); Forensic Science SA and the Minister and Commissioner receive copies of analyst certificates (regulation 9(p)-(r)); and blood and oral fluid sample containers must be kept available for collection by or on behalf of the person for 12 months (regulation 11).

Cross-reference duties

• The role of “approved courier” is defined by the Road Traffic Act 1961 approvals process (regulation 3), making police or the Commissioner of Police responsible for authorisations under another statute that the regulations rely on operationally.

In sum, the regulations set out an administratively heavy but procedurally finite set of duties for authorised officers, operators, medical practitioners/nurses, police, analysts and administrative bodies, while preserving several rights for the tested individual, specifically the ability to request a blood test kit and to obtain an independent analysis of a retained sample.

The regulations themselves do not create new criminal penalties; rather, they operationalise enforcement and evidentiary pathways under the Harbors and Navigation Act 1993. However the instrument does do three enforcement‑adjacent things.

1. Prescribes offences of a “prescribed class” (regulation 4)

• Regulation 4 identifies certain offences as being of a prescribed class for the purposes of paragraph (a) of the definition of prescribed circumstances in section 4(1) of the Act. The listed items include:
  • Offences against sections 69, 69A, 70 or 85 of the Act;
  • Offences against specified regulations in the Harbors and Navigation Regulations 2023 (regulation 10(1), 115, 116, 119, 121, 124-126, 143);
  • Offences under section 84 of the Act or regulation 113(2) or 114(2) of the Regulations, when committed by a master or operator.
• The practical import is that where the Act ties special powers, procedures, or presumptions to “prescribed circumstances” or a “prescribed class” of offence, those powers will apply to the offences listed. The Act itself sets penalties for its own offences; those penalties are not restated in these regulations but the regulations expand the conditions under which breath and blood testing and the evidential presumptions apply.

2. Evidential presumptions and the formal route to rebuttal (Schedule 1 clauses 3-4; regulation 5)

• The written notice (Schedule 1 clause 4) recites the statutory evidentiary presumption under section 73(1) and (3): a breath‑analysis result will be presumed to accurately record blood alcohol at the time of analysis and for the preceding three hours. That presumption shifts the evidential burden such that, absent contrary evidence, the breath analysis is treated as accurate in prosecutions for the relevant offences.
• The regulations provide the precise mechanism for producing contrary evidence: a blood test taken using an approved blood test kit and analysed according to the prescribed procedure (regulation 9 and Schedule 2). The regulations therefore enforce a regime where the primary public enforcement route is breath analysis subject to a defined rebuttal pathway requiring adherence to the regulations’ handling steps.

3. Chain of custody, certificates, and administrative enforcement

• The regulations create enforceable procedural duties which, if not complied with, may affect admissibility or weight of evidence. Key enforcement-relevant points include: the requirement to record identifying numbers on adhesive seals (regulation 9(d), Schedule 2), the requirement that the practitioner take reasonable steps to prevent adulteration or deterioration (regulation 9(e)), the obligation that analyst certificates include specified content including factors that may affect accuracy (regulation 9(o)), and retention obligations (regulation 10(2), regulation 11). Failure to follow these could be raised by a defendant to attack chain of custody, integrity or admissibility, or could be a ground for internal disciplinary or administrative action in the agencies involved.

Administrative enforcement and roles

• Police officers and approved couriers have duties to deliver sealed containers and certificates to Forensic Science SA (regulation 9(k)-(l)). Forensic Science SA is obliged to analyse the police container as soon as reasonably practicable and provide certificates to the person, Minister and Commissioner (regulation 9(n)-(r)). The regulations thus allocate enforcement‑relevant actions among agencies and create record traces that can be audited.

Statements of criminality in the prescribed oral advice and written notice

• Schedule 1 clauses 1 and 2 inform tested persons that refusal or failure to provide a breath or oral fluid/blood sample without good cause is a criminal offence and refer to available defences (presence of relevant medical condition coupled with requesting the alternative sample). Those statements are part of the mandated advisory content; they do not themselves create new offences but are part of the enforcement apparatus by informing persons of legal consequences and defences.

Limits and missing penalty detail

• The regulations do not specify fines, imprisonment terms or specific enforcement penalties; these remain in the Act and in the referenced regulations cited in regulation 4. The regulations focus on procedure, evidence protocol, and notification requirements rather than directly setting sanctions.

Practical enforcement implications

• The prescribed technical rules (sample sizes, intervals, sealing and numbering, timelines for analysis and retention) increase the evidentiary structure available to prosecutors, but they also create discrete points where noncompliance can be alleged by defence, creating potential enforcement and litigation disputes focused on adherence to the regulations rather than the underlying statutory offence elements. For example, an analyst’s certificate must record any factors that could affect accuracy (regulation 9(o)(v)), providing a formal channel to record issues that could mitigate enforcement outcomes.

In sum, the regulations shape enforcement by defining the technical processes that create admissible evidence and by prescribing the route and form of statutory notices and opportunities to rebut breath-reading presumptions. The penal outcomes themselves continue to be governed by the Act and other cited regulatory instruments.

The regulations explicitly cross‑reference a number of statutory instruments and administrative systems and are drafted to operate as subordinate detail for the Harbors and Navigation Act 1993. The interaction points are concrete and procedural.

Primary interaction: Harbors and Navigation Act 1993

• The regulations flow from and implement powers in the Act, notably sections 71, 72 and 73 which authorise breath analysis, drug screening and blood testing and set evidential presumptions and procedural rights. The regulations repeatedly frame requirements as being “for the purposes of” particular subsections of the Act (for example, regulation 5 pursuant to section 71(7), regulations 6-8 for sections 71(9)(b), 72(11)(b) and 73(6)(a), regulation 9 for section 73(2)(a), regulation 10 for section 73(6)(b), regulation 11 for Schedule 1A of the Act etc.). This makes them subordinate, implementing rules aimed at giving practical effect to the Act’s broader statutory scheme.

Cross-reference to Road Traffic Act 1961

• The definition of “approved courier” invokes approval by the Commissioner of Police under the Road Traffic Act 1961 as a courier for the purposes of Schedule 1 of that Act (regulation 3). That creates an administrative link: couriers used to transport police containers and certificates must be approved under a separate statutory approval mechanism in the Road Traffic Act. Practically, chain-of-custody logistics for evidence are therefore governed by procedural approvals in another statutory regime.

Potential cross-use of forms under other statutes

• Schedule 2’s note states the form may be combined with a form required for the purposes of section 47K of the Road Traffic Act 1961 and section 20(2) of the Rail Safety National Law (South Australia) Act 2012. That indicates an intent to harmonise forms and reduce duplication where overlapping transport and rail safety tests and evidence regimes operate. It also means that practitioners and agencies may use a single combined form to comply with multiple statutory regimes.

Forensic Science SA and administrative law

• Regulation 9 requires Forensic Science SA to analyse the container and to produce analyst certificates; the practical interaction includes administrative and possibly public-service procedural requirements, record-keeping policies, and standards for analysts. The regulations do not displace Forensic Science SA’s internal standards or accreditation requirements but import their outputs into the criminal enforcement chain.

Evidence law

• The regulations affect statutory evidential presumptions (section 73 of the Act), and therefore interact with general evidence law doctrines about admissibility, chain of custody, expert certificates and cross-examination. Although the regulations do not amend common law evidentiary principles, they create statutory procedures that will be relevant in evidentiary fights in court under the Act.

Health professionals and professional regulation

• The roles and duties given to registered medical practitioners and nurses are procedural under these regulations but will intersect with the professional and regulatory frameworks governing practitioners (e.g. privacy, consent, medical records, and professional conduct obligations). The regulations require specific actions like sealing, signing certificates and dealing with chain-of-custody; those actions must be reconciled with clinical obligations and privacy requirements.

Retention and privacy law

• The regulations require the Minister to retain a copy of the signed request form for 12 months and Forensic Science SA to retain materials and send copies of certificates to the Minister and Commissioner of Police. These retention and disclosure points engage administrative privacy frameworks and record-keeping obligations under relevant state privacy laws and policies, though the regulations do not themselves specify privacy safeguards beyond distribution lists.

Interplay with the Harbors and Navigation Regulations 2023

• Regulation 4 lists offences drawn from the Harbors and Navigation Regulations 2023 (for example, regulations 113(2), 114(2), and others). That anchors the testing and evidentiary regimes to operational breaches in the subordinate regulations; a suspected regulatory offence in the Harbors and Navigation Regulations can therefore trigger the testing and evidentiary machinery established in the Act and these regulations.

Statutory amendment/revocation history

• The Legislative history notes that the 2023 Regulations revoked the Harbors and Navigation (Alcohol and Drug Testing) Regulations 2009, and that there was a 2024 variation which amended regulation 4 and removed some clauses under the Legislation Revision and Publication Act 2002. Those inter-temporal changes affect which offences are captured and need to be monitored alongside other statutory instruments.

In operation, the regulations are not standalone: they depend on the Act for authority and create practical links to road traffic approvals, forensic analysis infrastructure, health practitioner processes and record-keeping. Compliance therefore requires attention to multiple administrative regimes.

The Regulations contain their own legislative history at the end of the instrument and indicate specific revocations and later variations.

Commencement and revocation

• The Harbors and Navigation (Alcohol and Drug Testing) Regulations 2023 were made as No 85 in 2023 (Gazette 10.8.2023 p2956) and commenced on 1 September 2023 (r 2 cited). They revoked the Harbors and Navigation (Alcohol and Drug Testing) Regulations 2009 (Legislation revoked by principal regulations). Thus the 2023 instrument replaced the 2009 regulations.

Subsequent variation in 2024

• There is a recorded variation in 2024: New entry No 72 of 2024 (Gazette 18.7.2024 p2198) commenced on 18 July 2024. The legislative history lists specific changes:
  • Regulation 2 was omitted under the Legislation Revision and Publication Act 2002 as of 18.7.2024.
  • Regulation 4 was amended by 72/2024 r 3 as of 18.7.2024.
  • Schedule 4 was omitted under the Legislation Revision and Publication Act 2002 as of 18.7.2024.
• The history table records that r 4 was amended by the 2024 variation. The precise content of the amendment to r 4 is not reproduced in the body text provided, but the legislative history confirms amendment occurred and the amendment’s commencement date.

Notes in Schedule 2

• Schedule 2 contains a note that its form may be combined with forms required under the Road Traffic Act 1961 and the Rail Safety National Law (South Australia) Act 2012, which suggests contemporaneous drafting to harmonise requirements across Acts.

Legislation revision entries

• The legislative history lists that some provisions were omitted under the Legislation Revision and Publication Act 2002. The act of omission under that Act is a technical housekeeping procedure often used to remove redundant or spent provisions.

Practical effects of amendment history

• The revocation of the 2009 regulations and replacement by the 2023 regulations means that practitioners and agencies must refer to the 2023 text for the current procedural rules. The 2024 amendment to regulation 4 potentially altered which offences are treated as a prescribed class; anyone relying on regulated triggers should verify the current text of regulation 4 and any administered instruments that cross-reference it.
• Retention periods and defined forms are current as per the 2023/2024 texts: for example, the 12‑month retention period for blood/oral fluid samples and for signed request forms is recorded in regulations 10(2) and 11.

Record-keeping for regulated actors

• Because the regulations require certain forms and retention (Schedule 3 forms retained by Minister for 12 months, samples kept available for 12 months), entities should track commencement and amendment dates to ensure that retention obligations are observed in relation to the current regulatory version.

No further amendments recorded in the provided text

• The legislative history supplied lists entries up to the 2024 variation; no later amendments appear in the provided instrument. Users should nonetheless check official consolidated versions for any newer amendments beyond those recorded.

In short, the text replaced a 2009 instrument in 2023 and was subsequently varied in mid-2024, notably amending the list of offences in regulation 4 and omitting certain housekeeping provisions. Those changes have immediate operational consequences for which offences can trigger the Act’s testing regime.

The regulations as provided do not record any case law or litigation history. There are no judicial decisions cited or reproduced in the instrument. In the absence of identified cases in the text, the following outlines likely litigation touchpoints and the types of disputes these regulations are most likely to generate, grounded in the regulations’ mechanics and statutory references.

Potential areas for challenge or litigation, grounded in the text

• Compliance with the breath-analysis procedure (regulation 5): Disputes are likely to focus on whether the operator followed the mandatory two-sample, one-litre, 2-10 minute schedule and whether the instrument error, mouth-alcohol or >15% discrepancy rules were correctly applied. The regulation prescribes certain technical events that require samples to be disregarded and recollected; failure to follow those events could be raised to challenge admissibility or weight of the breath reading.
• Whether the operative reading is the lower admissible reading (regulation 5(3)): The regulation states that, for Part 10 Division 4 and any other Act, the result is the lower of the admissible readings. Litigation could arise over whether this rule was correctly applied in a particular case, especially where multiple instruments were used or where samples were disregarded.
• Chain of custody and sealing requirements for blood tests (regulation 9 and Schedule 2): The regulations impose detailed sealing, identifying number and delivery obligations. Challenges could arise where seals are missing, identifying numbers are inconsistent, or delivery to police/Forensic Science SA deviates from the prescribed route, because such failures bear on the integrity of the sample and admissibility in proceedings.
• Adequacy of steps to prevent adulteration or deterioration (regulation 9(e)): Litigation may explore whether the practitioner took reasonable practicable measures to ensure sample integrity, particularly where testing delays or storage conditions are poor. The analyst’s certificate must record any factors that may adversely affect accuracy (regulation 9(o)(v)), which can produce documentary bases for challenges.
• Proper supply and execution of the blood test request form (regulation 10 and Schedule 3): If the operator failed to complete the form or attest the signature, questions may arise about whether the person validly requested the kit and whether the procedural prerequisites for rebutting the breath-reading presumption were met.
• Adequacy of oral advice/written notice (regulations 6-8 and Schedule 1): The regulations prescribe the precise words that must be used for oral advice and written notices. Litigation could focus on whether the advice was actually given in the prescribed form, particularly where a defence relies on a person not understanding their rights or the consequences.
• Timeliness of Forensic Science SA analysis and issuance of analyst’s certificate (regulation 9(n)-(p)): Where analysis is delayed or the analyst omits to set out adverse factors, defendants may challenge reliance on the analyst’s certificate.
• Impact of retention and access rules (regulation 11): The 12-month retention period might be litigated if samples are disposed of early or retained beyond that period in breach of the regulation; issues of access to retained sample may also be pursued.

Evidential posture in court

• The regulations preserve the statutory evidential presumption in section 73(1) and (3) as set out in Schedule 1. That presumption will frame litigation in proceedings under section 70(1) or (2) of the Act. The rules laid down by the regulations for creating contrary blood-test evidence are therefore litigation focal points.

No cases named in the text

• Because the instrument contains no case law references, it does not itself report or catalogue judicial interpretation of any of its provisions. Practitioners should consult case law databases and authorities interpreting the Act (and prior versions of the regulations) for judicial consideration of the regimes established here.

Administrative review and audit avenues

• Disputes about whether an authorised person acted properly in giving advice or in logistical arrangements may also be pursued through administrative complaint channels or internal reviews (police complaints bodies, professional conduct reviews for medical practitioners), separate from criminal litigation.

In short, while the regulations supply procedural detail, they create multiple discrete points at which compliance or non-compliance could be litigated. The regulations themselves do not include a litigation history; therefore practitioners must look to contemporaneous judicial decisions under the Harbors and Navigation Act and related transport safety regimes for interpretive guidance.

This instrument is highly prescriptive; a number of practical pitfalls arise from precise technical and administrative requirements. The “gotchas” below identify common operational risks and traps for the unwary, grounded explicitly in the text.

Breath sample quantity and timing are strict (regulation 5(1))

• Each breath sample must be not less than one litre and must be provided according to the operator’s directions. The interval between samples must be at least two minutes and no more than ten minutes. Failure to meet either the sample volume or the 2-10 minute interval can render samples non‑compliant and necessitate recollection. Operators should ensure instrument instructions and timing are recorded contemporaneously; failure to document timing or volume risks later challenges.

Disregard triggers and requirement to recollect on different instrument (regulation 5(2))

• If an instrument indicates an error or mouth alcohol, the sample(s) must be disregarded and the person may be required to provide two further samples, and in some cases “using a different instrument” (regulation 5(2)(a)). If the same instrument is used contrary to the regulation, the samples may be vulnerable to challenge.
• The 15% discrepancy rule (regulation 5(2)(c)) means that if the second sample reading is more than 15% higher or lower than the first, both must be disregarded and recollection is required. Practically, operators must monitor percentage variance and document instrument readouts.

Operative reading is the lower admissible reading (regulation 5(3))

• The regulation specifies the reading taken to be the lower concentration indicated by the instrument on analysis of compliant samples. Where multiple analyses or multiple instruments are used, recording which reading is lower and the exact readings is essential; failure to note or record could undercut the evidential presumption or lead to internal disputes.

Prescribed wording must be used when giving advice and notices (regulations 6-8; Schedule 1)

• The phrasing in Schedule 1 is mandatory for the purposes of the sections referenced. An authorised officer must provide the exact prescribed oral advice when a person refuses or fails to comply, and the prescribed oral and written advice when a positive breath analysis reading is recorded. Using paraphrase, truncated wording or failing to give the written notice may create grounds to argue that procedural rights were not provided.

Blood test kit request process is formal and requires attestation (regulation 10)

• A request for an approved blood test kit must lead to the operator (or another authorised person present) completing a written request form in Schedule 3, obtaining the person’s signature in their presence, and attesting it (regulation 10(1)(b)-(c)). The original may be retained by the person and a copy delivered to the operator, which must be retained for 12 months on behalf of the Minister (regulation 10(1)(d)-(2)). If the operator fails to attest the signature or to provide the copy into retention the person may later argue the request was not properly made.

One sealed container goes to the person, the other must not be returned to them (regulation 9(i), 9(j), 9(m))

• Regulation 9(i) says the original signed certificate must be delivered to the person together with one of the sealed containers containing part of the blood sample. Regulation 9(j) requires the other container and a copy of the certificate to be delivered to police or an approved courier. Regulation 9(m) states the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken. Practically, this is not a contradiction: it distinguishes the person’s container from the police container. However, if agency personnel fail to keep the police container out of the person’s possession (for example by confusion over which container is which), that could compromise chain of custody and create evidentiary problems.

Sealing, identifying numbers and certificates are essential (regulation 9(d), Schedule 2)

• The adhesive seal must bear an identifying number and the practitioner/nurse must record that number on the certificate (regulation 9(d), Schedule 2 Part A). Failure to correctly seal or to record the identifying number creates an immediate chain-of-custody vulnerability.

Medical practitioner/nurse’s additional duties beyond clinical care (regulation 9(e)-(h))

• Practitioners/nurses must not only take clinical samples but must take reasonable steps to prevent adulteration, complete and sign the specific certificate, and ensure the patient signs in their presence. Practitioners unfamiliar with these procedural requirements may inadvertently make procedural errors; hospitals and clinics should have protocols ready.

Forensic Science SA analysis must be “as soon as reasonably practicable” (regulation 9(n))

• The regulator’s standard is “as soon as reasonably practicable”, which is flexible. Delays could be defensible in context, but lengthy or unexplained delays may be exploited in litigation. Agencies should document reasons for delay and storage conditions.

Retention period is 12 months (regulation 11)

• The container must be kept available for collection by or on behalf of the person for 12 months. If samples are destroyed earlier or not available, a person may be unable to obtain independent analysis and may challenge reliance on breath readings. Conversely, retaining beyond 12 months raises disposal and privacy questions.

Analyst’s certificate must identify prescribed drugs found (regulation 12)

• Analysts must identify any prescribed drug found. Failure to specify the identifying drug(s) could limit the usefulness of the certificate in both prosecution and defence contexts.

Approved courier requirement (regulation 3; regulation 9(j)-(l))

• The regulations rely on couriers approved under the Road Traffic Act 1961. If police personnel attempt to use an unapproved courier, the delivery requirement to Forensic Science SA may not have been satisfied in the specified manner, with possible evidential consequences.

Government expense statement in oral advice (Schedule 1 clauses 1-2)

• The oral advice states that the authorised person will help the person to have the sample taken at Government expense if the person’s medical condition prevents breath sampling and they request blood instead. Practitioners and administrators must understand the scope of that promise: the regulations provide for assistance and supply of a kit but do not otherwise detail reimbursement mechanisms. Practical confusion about what “Government expense” covers could arise.

Forms can be combined with other statutory forms (Schedule 2 note)

• While helpful for simplification, combining forms required for different Acts (Road Traffic Act and Rail Safety National Law) must be done carefully to ensure each statutory requirement is still met.

In short, compliance is highly procedural. Small deviations,improper timing, incorrect sealing, failure to use prescribed words, incomplete forms or lost documentation,can have outsized consequences for admissibility and litigation outcomes. Operational procedures, staff training and contemporaneous documentation are therefore essential.

This section provides a step‑by‑step compliance checklist and practical process notes for each role identified in the regulations. Each step cites the supplying regulation(s) where applicable; follow the checklist literally because the regulations are procedural and prescriptive.

For authorised persons and breath analyser operators

1. Training and forms

   • Ensure staff are trained in the prescribed oral advice and written notice set out in Schedule 1 and keep printed copies of Schedule 1 and Schedule 3 available (regulations 6-8; Schedule 1; regulation 10).
   • Maintain a supply of the approved blood test kits and blank copies of the request form in Schedule 3.

2. Conducting breath analysis (regulation 5)

   • Instruct the person to provide two separate samples, each not less than 1 litre, following instrument directions (regulation 5(1)(a)-(b)).
   • Time the interval between samples to ensure it is not less than 2 minutes and not more than 10 minutes; record start and finish times for each sample (regulation 5(1)(c)).
   • Monitor instrument messages and follow disregard rules: if the instrument indicates an error or mouth alcohol, or the second reading differs >15% from the first, disregard sample(s) and require two further samples; where specified use a different instrument (regulation 5(2)(a)-(c)).
   • If a second sample cannot be provided within 10 minutes, disregard the first and require two further samples (regulation 5(2)(d)).
   • Record both instrument readings and, for evidential purposes, note the lower admissible reading that will be taken under regulation 5(3).

3. Advising the person (regulations 6-8; Schedule 1)

   • When requiring or receiving breath analysis or drug screening, read aloud the exact prescribed oral advice from Schedule 1 clause 1 or 2 as applicable (regulations 6-7).
   • If a positive breath analysis reading is recorded, provide the prescribed oral advice and deliver the written notice with the exact wording in Schedule 1 clause 4 (regulation 8).

4. Handling requests for blood test kit (regulation 10)

   • If the person requests an approved blood test kit (which may be necessary if they have a medical condition), complete the written request form in Schedule 3 with the required particulars, obtain the person’s signature in your presence and attest it (regulation 10(1)(b)-(c)).
   • Give the original signed form to the person (they may retain it) and retain or deliver the copy to the Minister’s office or retain on behalf of the Minister for 12 months (regulation 10(1)(d)-(2)).

For medical practitioners and registered nurses taking blood (regulation 9; Schedule 2)

1. Acceptance and chain-of-custody steps

   • Accept the approved blood test kit from the person and do not allow the kit to be opened by anyone other than you for the purpose of taking the sample (Schedule 1 clause 3 and regulation 9(a)).
   • Take a sufficient quantity of blood to furnish two approximately equal portions, each containing enough blood to enable accurate evaluation (regulation 9(b)-(c); Schedule 2 Part A(c),(f)).

2. Sealing and identifying

   • Place the sample in the two containers provided, secure the caps, and seal each container using the adhesive seal provided; ensure the adhesive seal bearing the identifying number is applied and that number is recorded on the certificate (regulation 9(d); Schedule 2 Part A(f)).
   • Complete the certificate in the form set out in Schedule 2 (regulation 9(f); Schedule 2).

3. Preventing adulteration

   • Take measures that are reasonably practicable in the circumstances to ensure the blood is not adulterated and does not deteriorate (regulation 9(e)). Document storage and transport conditions and times where appropriate.

4. Signatures and delivery

   • Sign the certificate certifying the matters required and witness the person’s signature, attesting it (regulation 9(g)-(h)).
   • Deliver the original signed certificate and one sealed container to the person (regulation 9(i); Schedule 2 Part B). Do not deliver the police container referred to in paragraph (j) into the person’s possession (regulation 9(m)).
   • Deliver the other sealed container and a copy of the signed certificate to a police officer or an approved courier who must deliver it to Forensic Science SA (regulation 9(j)-(l)). Mark how the police container was delivered on your certificate as required by Schedule 2 Part C.

For police officers and approved couriers

1. Reception and transport

   • On receipt of the sealed container and copy of the certificate from the practitioner/nurse, deliver both to Forensic Science SA as soon as practicable (regulation 9(k)-(l), 9(n)). If using an approved courier, ensure the person is approved per Road Traffic Act 1961 (regulation 3).

2. Documentation

   • Record the date and time of receipt and handover to Forensic Science SA. Request and retain receipts or chain-of-custody documentation.

For Forensic Science SA analysts

1. Analysis

   • On receipt of the police container and copy of the certificate, analyse the blood as soon as reasonably practicable and determine concentration in grams per 100 ml (regulation 9(n)).

2. Analyst’s certificate

   • Complete and sign the analyst’s certificate including: date of receipt, identifying number on the adhesive seal, name and qualifications of analyst, alcohol concentration, any factors that might adversely affect accuracy, and any other relevant information (regulation 9(o); Schedule 2 Part A items (i)-(vi)).
   • Post the analyst’s certificate to the person at the address shown on the certificate accompanying the blood sample container (regulation 9(p)).
   • Send or retain a copy on behalf of the Minister and send a copy to the Commissioner of Police (regulation 9(q)-(r)).

For the tested person

1. Rights and responsibilities

   • If you have a medical condition preventing breath sampling, you must request a blood sample and the authorised person will help you have it taken; the Schedule 1 text states this help will be at Government expense in certain circumstances (Schedule 1 clauses 1-2). Request the approved blood test kit and sign the written request form in the presence of the operator or authorised person (regulation 10(1)(b)-(c) and Schedule 1 clause 3).
   • Do not open the blood test kit and do not consume more alcohol before the sample is taken (Schedule 1 clause 3 and Schedule 1 clause 4 Procedures).
   • Take the kit promptly to a hospital, medical practitioner or registered nurse of your choice to have the sample taken (Schedule 1 clause 3 and Schedule 1 clause 4 Procedures).

2. Post-sample options

   • One sealed container and the original certificate will be delivered to you; you may have the sample you retain analysed at your expense (regulation 9(i), 9(s)). Keep the sealed container intact and ensure the receiving laboratory understands the chain-of-custody context.

Record-keeping and administrative compliance

• Operators must retain a copy of the signed request form and deliver it to the Minister or retain on the Minister’s behalf for 12 months (regulation 10(2)).
• Ensure the sealed containers are kept available for collection by or on behalf of the person for 12 months from the day the sample was taken (regulation 11).
• Analysts must provide copies of analyst’s certificate to the person, Minister and Commissioner of Police (regulation 9(p)-(r)).

Quality control and policies

• Agencies should prepare standard operating procedures reflecting timing, sample volume, instruments to be used, instrument‑error protocols, template chain-of-custody forms, and training materials on the exact wording from Schedule 1 and Schedule 2. Where forms are combined with Road Traffic Act or Rail Safety forms, verify that all statutory elements are included (Schedule 2 note).

Audit and review

• Keep contemporaneous logs (times, instrument readings, seals used, identifying numbers) and receipts for delivery to Forensic Science SA. Document any deviations from the protocols and the reasons for them to preserve administrative explanations that may be relevant in later proceedings.

In summary, literal compliance with the regulations’ prescriptive steps,timing, sample volume, sealing, forms and distribution,is the practical way to ensure evidence produced under the Act is robust and defensible. Agencies should embed the regulations into training, forms and chain‑of‑custody systems.