S. 28(1)(a) amended by No. 65/2010 s. 379(1)(a), substituted by No. 66/2012 s. 5(1).
(a) the person operates a vessel or is the master or pilot of a vessel underway or at anchor while under the influence of alcohol or any other drug to such an extent as to—
(i) in the case of a person operating a vessel, be incapable of having proper control of the vessel; or
(ii) in the case of a master or pilot of a vessel, be incapable of directing the proper operation of the vessel; or
S. 28(1)(b) amended by Nos 23/2001 s. 19(a), 94/2003 s. 34(4), 65/2010 s. 379(1)(a), 66/2012 s. 5(2).
(b) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or
S. 28(1)(ba) inserted by No. 66/2012 s. 5(3).
(ba) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while impaired by a drug; or
S. 28(1)(bb) inserted by No. 66/2012 s. 5(3).
(bb) the person operates a vessel or is a master or pilot of a vessel underway or at anchor while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or
S. 28(1)(c) amended by No. 17/1994 s. 16(a).
(c) the person refuses to undergo a preliminary breath test in accordance with section 29 when required under that section to do so; or
S. 28(1)(ca) inserted by No. 66/2012 s. 5(4).
(ca) the person refuses to undergo an assessment of drug impairment in accordance with section 31AA when required under that section to do so or refuses to comply with any other requirement made under section 31AA(1); or
S. 28(1)(cb) inserted by No. 66/2012 s. 5(4).
(cb) the person refuses or fails to comply with a request or signal to go to a preliminary breath testing station, given under section 30(3); or
S. 28(1)(d) substituted by No. 17/1994 s. 16(b), amended by No. 66/2012 s. 5(5).
(d) the person refuses to comply with a requirement made under section 31(1), (2), (2AA), (2A) or (9A); or
S. 28(1)(e) substituted by No. 20/1993 s. 5(1), amended by Nos 46/2002 s. 15, 65/2010 s. 379(1)(b), 66/2012 s. 5(6)(a).
(e) within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor, the person furnishes a sample of breath for analysis by a breath analysing instrument under section 31 and—
Section 28 - Marine (Drug, Alcohol and Pollution Control) Act 1988 - Offences involving alcohol or other drugs | Zoe
S. 28(1)(e)(i) amended by No. 94/2003 ss 34(5), 35(2).
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her breath; and
S. 28(1)(e)(ii) amended by Nos 94/2003 ss 34(5), 35(2), 65/2010 s. 379(1)(c), 66/2012 s. 5(6)(b).
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after operating the vessel or being the master or pilot of the vessel underway or at anchor; or
S. 28(1)(ea) inserted by No. 66/2012 s. 5(7).
(ea) the person refuses to comply with a requirement made under section 31AB(1); or
S. 28(1)(eb) inserted by No. 66/2012 s. 5(7).
(eb) the person refuses to provide a sample of oral fluid in accordance with section 31AD or 31AE when required under that section to do so or refuses to comply with any other requirement made under that section; or
S. 28(1)(f) substituted by No. 20/1993 s. 5(1), amended by Nos 17/1994 s. 16(c), 65/2010 s. 379(1)(d), 66/2012 s. 5(8)(a)(b).
(f) the person has had a sample of blood taken from him or her in accordance with section 31, 31A, 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor and—
S. 28(1)(f)(i) amended by No. 23/2001 s. 19(b).
(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 32 and the analyst has found that at the time of analysis the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and
S. 28(1)(f)(ii) amended by Nos 65/2010 s. 379(1)(d), 66/2012 s. 5(8)(c).
(ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after operating the vessel or being the master or pilot of the vessel underway or at anchor; or
S. 28(1)(g) inserted by No. 66/2012 s. 5(9).
(g) within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor, the person provides a sample of oral fluid in accordance with section 31AE and—
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 32B and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating the vessel or being the master or pilot of the vessel underway or at anchor; or
S. 28(1)(h) inserted by No. 66/2012 s. 5(9).
(h) the person has had a sample of blood taken from him or her in accordance with section 31, 31A, 31AB or 31AE within 3 hours after operating a vessel or being a master or pilot of a vessel underway or at anchor and—
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 32 and the analyst has found at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after operating the vessel or being the master or pilot of a vessel underway or at anchor.
S. 28(1A) inserted by No. 49/2004 s. 3, amended by No. 66/2012 s. 5(10)(a).
(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (d), (ea) or (eb) of subsection (1) even if—
(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the person at the time of the making of the requirement; and
S. 28(1A)(ab) inserted by No. 66/2012 s. 5(10)(b).
(ab) in the case of an offence under paragraph (ca)—
(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and
(1A)(ab)(ii) amended by No. 37/2014 s. 10(Sch. item 106.2).
(ii) a police officer authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made; and
(b) in the case of an offence under paragraph (d)—
(i) a breath analysing instrument was not available at the place where the requirement was made at the time it was made; and
(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and
(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
S. 28(1A) (b)(iv) amended by No. 66/2012 s. 5(10)(c).
(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
S. 28(1A)(c) inserted by No. 66/2012 s. 5(10)(d).
(c) in the case of an offence under paragraph (ea)—
(1A)(c)(i) amended by No. 37/2014 s. 10(Sch. item 106.2).
(i) the police officer requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(1A)(c)(ii) amended by No. 37/2014 s. 10(Sch. item 106.2).
(ii) the police officer requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and
(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
S. 28(1A)(d) inserted by No. 66/2012 s. 5(10)(d).
(d) in the case of an offence under paragraph (eb)—
(i) a prescribed device was not presented to the person at the time of the making of the requirement; and
(ii) a prescribed device was not available at the place or vessel where the requirement was made at the time it was made; and
(iii) a person authorised to carry out the prescribed procedure for the provision of a sample of oral fluid was not present at the place where the requirement was made at the time it was made; and
(iv) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(v) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.
S. 28(1B) inserted by No. 49/2004 s. 3.
(1B) To avoid doubt, in proceedings for an offence under paragraph (d) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(b)(i) or (ii) is not a reason of a substantial character for a refusal for the purposes of section 31(9).
S. 28(1C) inserted by No. 66/2012 s. 5(11).
(1C) To avoid doubt, in proceedings for an offence under paragraph (eb) of subsection (1) a state of affairs or circumstance referred to in subsection (1A)(d)(i), (ii) or (iii) is not a reason of a substantial character for a refusal for the purposes of section 31AE(12).
S. 28(2) amended by Nos 23/2001 s. 20(1), 65/2010 s. 379(2).
(2) A person who is guilty of an offence under subsection (1)(a) is liable—
(a) for a first offence, to a fine of not more than 25 penalty units or to imprisonment for not more than 3 months; and
S. 28(2)(b) substituted by No. 66/2012 s. 6(1).
(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and
S. 28(2)(c) inserted by No. 66/2012 s. 6(1).
(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
S. 28(2A) inserted by No. 66/2012 s. 6(2).
(2A) A person who is guilty of an offence under paragraph (b), (e) or (f) of subsection (1) is liable—
(a) in the case of a first offence, to a fine of not more than 20 penalty units; and
(b) in the case of a second offence—
(i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol—
(A) in the person's blood was less than 0⋅15 grams per 100 millilitres of blood; or
(B) in the person's breath was less than 0⋅15 grams per 210 litres of exhaled air—
as the case requires; or
(ii) to a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person's blood was 0⋅15 grams or more per 100 millilitres of blood; or
(B) in the person's breath was 0⋅15 grams or more per 210 litres of exhaled air—
(c) in the case of any other subsequent offence—
(i) to a fine of not more than 120 penalty units or imprisonment for a term of not more than 12 months if the concentration of alcohol—
(A) in the person's blood was less than 0⋅15 grams per 100 millilitres of blood; or
(B) in the person's breath was less than 0⋅15 grams per 210 litres of exhaled air—
as the case requires; or
(ii) to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months if the concentration of alcohol—
(A) in the person's blood was 0⋅15 grams or more per 100 millilitres of blood; or
(B) in the person's breath was 0⋅15 grams or more per 210 litres of exhaled air—
as the case requires.
S. 28(3) amended by Nos 23/2001 s. 20(2), 65/2010 s. 379(2), 66/2012 s. 6(3)(a).
(3) A person who is guilty of an offence under paragraph (ba), (c), (ca), (cb), (d) or (ea) of subsection (1) is liable—
(a) for a first offence, to a fine of not more than 12 penalty units; and
S. 28(3)(b) substituted by No. 66/2012 s. 6(3)(b).
(b) for a second offence, to a fine of not more than 120 penalty units or to imprisonment for not more than 12 months; and
S. 28(3)(c) inserted by No. 66/2012 s. 6(3)(b).
(c) for a subsequent offence, to a fine of not more than 180 penalty units or to imprisonment for a term of not more than 18 months.
S. 28(3A) inserted by No. 23/2001 s. 20(3), repealed by No. 65/2010 s. 379(3), new s. 28(3A) inserted by No. 66/2012 s. 6(4).
(3A) A person who is guilty of an offence under paragraph (bb), (eb), (g) or (h) of subsection (1) is liable—
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and
(b) in the case of a second offence, to a fine of not more than 60 penalty units; and
(c) in the case of any other subsequent offence, to a fine of not more than 120 penalty units.
S. 28(3B) inserted by No. 66/2012 s. 6(4).
(3B) In proceedings for an offence under paragraph (ba) of subsection (1), proof that—
(a) the person operated a vessel or was the master or pilot of a vessel underway or at anchor; and
(b) one or more drugs were present in the person's body at the time at which he or she operated the vessel or was the master or pilot of the vessel underway or at anchor; and
(c) the behaviour of the person on an assessment of drug impairment carried out under section 31AA was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and
(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable—
(i) in the case of a person operating a vessel, to operate a vessel properly; or
(ii) in the case of a master or pilot of a vessel, direct the proper operation of the vessel—
is, in the absence of evidence to the contrary but subject to subsections (3C) and (3D), proof that the accused operated a vessel or was a master or pilot of a vessel underway or at anchor while impaired by a drug.
S. 28(3C) inserted by No. 66/2012 s. 6(4).
(3C) If on an analysis carried out in accordance with this Part, no drug other than a permissible non-prescription drug or a prescription drug was found present in the person's body, it is a defence to a charge under paragraph (ba) of subsection (1) for the person charged to prove that—
(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would, if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs, impair—
(ii) in the case of a master or pilot of a vessel, directing the proper operation of a vessel; and
(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.
S. 28(3D) inserted by No. 66/2012 s. 6(4).
(3D) In subsection (3C), advice means written or oral advice and includes anything written on a label accompanying the drug.
(4) It is a defence to a charge under subsection (1)(e) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
S. 28(5) amended by No. 66/2012 s. 6(5).
(5) It is a defence to a charge under paragraph (f), (g) or (h) of subsection (1) for the person charged to prove that the result of the analysis was not a correct result.
S. 28(5A) inserted by No. 20/1993 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 84.2).
(5A) In any proceedings for an offence under paragraph (e) or (f) of subsection (1) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 27(1A) but is otherwise inadmissible.
S. 28(6A) inserted by No. 66/2012 s. 6(6).
(6A) In any proceedings for an offence under paragraph (g) or (h) of subsection (1) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 27(1B) but is otherwise inadmissible.
S. 28(6)(7) repealed by No. 65/2010 s. 379(3).
S. 28(8) inserted by No. 93/2000 s. 8.
(8) On convicting a person, or finding a person guilty, of an offence under subsection (1) the court must cause to be entered in the records of the court—
S. 28(8)(a) amended by No. 94/2003 s. 34(6).
(a) in the case of an offence under subsection (1)(b), the level of concentration of alcohol found to be present in that person's blood or breath; and
(b) in the case of an offence under subsection (1)(e), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and
(c) in the case of an offence under subsection (1)(f), the level of concentration of alcohol found to be present in the sample of blood.
S. 28(9) inserted by No. 66/2012 s. 6(7).
(9) If on a prosecution for an offence under paragraph (a) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (ba) of that subsection, the court may find the accused guilty of an offence under paragraph (ba) and punish the accused accordingly.
S. 28(10) inserted by No. 66/2012 s. 6(7).
(10) If on a prosecution for an offence under paragraph (ba) of subsection (1), the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence under paragraph (bb) of that subsection, the court may find the accused guilty of an offence under paragraph (bb) and punish the accused accordingly.
S. 28A inserted by No. 93/2000 s. 9 (as amended by No. 23/2001 s. 24), amended by Nos 90/2001 s. 7(1), 65/2010 s. 380, substituted by No. 66/2012 s. 7.