S. 31(1) amended by Nos 20/1993 s. 7(1), 17/1994 s. 17(1)(2), 94/2003 ss 34(8), 35(3), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(a)(i)).
(1) Subsection (1A) applies if a person undergoes a preliminary breath test when required to do so by a police officer under section 29 and—
S. 31(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.4(a)(ii)).
(a) the test in the opinion of the police officer in whose presence it is made indicates that the person's breath contains alcohol;
S. 31(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.4(a)(ii)).
(b) the person, in the opinion of the police officer, refuses or fails to carry out the test in the manner specified in section 29(2).
S. 31(1A) inserted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(b)).
(1A) A police officer may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may also require the person to accompany a police officer to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first—
(a) the person has furnished the sample of breath and been given the certificate referred to in subsection (4);
S. 31(2) amended by Nos 20/1993 s. 7(2), 17/1994 s. 17(2), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(c)).
(2) A police officer may require any person whom that police officer reasonably believes to have offended against section 28(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 29) and for that purpose may also require the person to accompany a police officer to a police station or other place where the sample of breath is to be furnished and to remain there until whichever of the following occurs first—
(a) the person has furnished the sample of breath and been given the certificate referred to in subsection (4);
S. 31(2AA) inserted by No. 66/2012 s. 11(1), amended by No. 37/2014 s. 10(Sch. item 106.4(d)).
(2AA) A police officer may require any person who is required to undergo a drug assessment under section 31AA to furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the drug assessment until whichever of the following occurs first—
(a) the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) and the drug assessment has been carried out;
S. 31(2A) inserted by No. 17/1994 s. 17(3), amended by Nos 58/1995 s. 28(a)(b), 94/2003 ss 34(9), 35(4), 66/2012 s. 11(3).
(2A) The person who required a sample of breath under subsection (1), (2) or (2AA) may require the person who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever.
(3) A breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.
S. 31(4) substituted by No. 17/1994 s. 17(4), amended by Nos 100/1995 s. 33(1), 94/2003 ss 34(10), 35(5).
(4) As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate in the prescribed form produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.
S. 31(4A) inserted by No. 20/1993 s. 7(3), repealed by No. 17/1994 s. 17(5).
(5) A person who furnishes a sample of breath under this section must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.
S. 31(6) amended by Nos 20/1993 s. 7(4), 65/2010 s. 385(1), substituted by No. 66/2012 s. 11(4).
(6) A person is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the person was—
S. 31(7) amended by No. 23/1994 s. 118(Sch. 1 item 34.2(a)(b)), repealed by No. 17/1994 s. 17(5).
S. 31(8) amended by No. 23/1994 s. 118(Sch. 1 item 34.3), repealed by No. 17/1994 s. 17(5).
S. 31(9) amended by No. 17/1994 s. 17(6).
(9) A person must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.
S. 31(9A) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 ss 27(3), 28, 94/2003 s. 36, 65/2010 s. 385(1), 66/2012 s. 11(5), 37/2014 s. 10(Sch. item 106.4(d)).
(9A) The person who required a sample of breath under subsection (1), (2), (2AA) or (2A) from a person may require that person to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of that person's blood for analysis if it appears to him or her that—
(a) that person is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or
S. 31(9A)(b) amended by No. 94/2003 ss 34(11), 35(6).
(b) the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever—
and for that purpose may further require that person to accompany a police officer to a place where the sample is to be taken and to remain there until whichever of the following occurs first—
S. 31(9A)(c) inserted by No. 66/2012 s. 11(5)(b).
(c) the sample has been taken;
S. 31(9A)(d) inserted by No. 66/2012 s. 11(5)(b).
S. 31(9B) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(4), repealed by No. 55/2017 s. 34.
S. 31(9C) inserted by No. 17/1994 s. 17(7).
(9C) A person who allows the taking of a sample of his or her blood in accordance with subsection (9A) must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis.
S. 31(9D) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(3).
(9D) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (9A).
Penalty applying to this subsection: 12 penalty units.
S. 31(9E) inserted by No. 17/1994 s. 17(7), amended by Nos 100/1995 s. 33(2), 14/2000 s. 27(5)(a)(b).
(9E) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (9A).
S. 31(10) amended by Nos 17/1994 s. 17(8)(a)(b), 100/1995 s. 33(2), 14/2000 s. 27(3), 37/2014 s. 10(Sch. item 106.4(d)).
(10) A person who is required under this section to furnish a sample of breath for analysis may, immediately after being given the certificate referred to in subsection (4), request the person making the requirement to arrange for the taking in the presence of a police officer of a sample of that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the police officer.
S. 31(11) repealed by No. 55/2017 s. 34.
S. 31(12) amended by No. 17/1994 s. 17(9).
(12) Nothing in subsection (10) relieves a person from any penalty under section 28(1)(d) for refusing to furnish a sample of breath.
S. 31(12A) inserted by No. 17/1994 s. 17(10).
(12A) Evidence derived from a sample of breath furnished in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (10) if reasonable efforts were made to comply with the request.
S. 31(12B) inserted by No. 17/1994 s. 17(10), amended by No. 94/2003 ss 34(11), 35(6).
(12B) If the question whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a person is relevant on a hearing for an offence against section 28(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this subsection, a document—
(a) purporting to be a print-out produced by that instrument in respect of that sample; and
S. 31(12B)(b) amended by No. 100/1995 s. 33(3).
(b) purporting to be signed by the person who operated the instrument—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 31(12C) inserted by No. 100/1995 s. 33(4), amended by No. 65/2010 s. 385(2).
(12C) A document referred to in subsection (12B) does not cease to be admissible in evidence or, in the absence of evidence to the contrary, to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Marine (Drug, Alcohol and Pollution Control) Act 1988.
(13) An approval or authority given under or for the purposes of this section by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.