S. 31A(1) def. of designated place repealed by No. 7/1995 s. 4(1).
S. 31A(1) def. of doctor amended by No. 23/1994 s. 118(Sch. 1 item 34.4).
doctor means a registered medical practitioner and includes a police surgeon.
S. 31A(2) amended by Nos 7/1995 s. 4(2), 65/2010 s. 386(1), 66/2012 s. 12, 55/2017 s. 35(1).
(2) If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of a marine incident (whether within Victoria or not) involving a vessel, the person must allow an approved health professional or a doctor to take from that person at that place a sample of that person's blood for analysis if—
S. 31A(2)(a) inserted by No. 66/2012 s. 12.
(a) the person was operating the vessel at the time the incident occurred; or
S. 31A(2)(b) inserted by No. 66/2012 s. 12.
(b) the person was the master or pilot of the vessel at the time the incident occurred and any of the following apply—
(i) the vessel was underway or at anchor at the time the incident occurred;
(ii) the vessel ran aground as a result of the incident.
For a first offence, 12 penalty units.
For a subsequent offence, 25 penalty units or imprisonment for 3 months.
S. 31A(2A) inserted by No. 93/2000 s. 10, amended by Nos 90/2001 s. 7(1), 65/2010 s. 386(2)(a).
(2A) On convicting a person, or finding a person guilty, of an offence under subsection (2) involving a registered recreational vessel or a regulated hire and drive vessel the court must—
(a) for a first offence—
(2A)(a)(i) amended by No. 65/2010 s. 386(2)(b).
(i) in the case of an offender who is the holder of a marine licence, cancel the licence and disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 12 months);
(2A)(a)(ii) amended by No. 65/2010 s. 386(2)(b).
(ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 12 months).
(b) for a second or subsequent offence—
(2A)(b)(i) amended by No. 65/2010 s. 386(2)(b).
(i) in the case of an offender who is the holder of a marine licence, cancel the licence and disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months);
Section 31A - Marine (Drug, Alcohol and Pollution Control) Act 1988 - Blood samples to be taken in certain cases | Zoe
(2A)(b)(ii) amended by No. 65/2010 s. 386(2)(b).
(ii) in the case of an offender who is not the holder of a marine licence, disqualify the person from obtaining a marine licence for the time that the court thinks fit (not being less than 24 months).
S. 31A(3) amended by Nos 7/1995 s. 4(3), 65/2010 s. 386(3), 37/2014 s. 10(Sch. item 106.5), substituted by No. 55/2017 s. 35(2).
(3) Subsection (2) does not apply if, in the opinion of the doctor first responsible for the examination or treatment of the person, the taking of a blood sample from that person would be prejudicial to that person's proper care and treatment.
S. 31A(4) amended by Nos 7/1995 s. 4(4), 55/2017 s. 35(3).
(4) A person to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by an approved health professional or doctor at a place which he or she enters or to which he or she is brought for examination or treatment.
(5) If a sample of a person's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except for the purposes of section 32.
S. 31A(6) amended by No. 55/2017 s. 35(4).
(6) A person must not hinder or obstruct an approved health professional or doctor attempting to take a sample of the blood of any other person in accordance with this section.
12 penalty units.
S. 31A(7) amended by No. 55/2017 s. 35(5).
(7) No action lies against an approved health professional or doctor in respect of anything properly and necessarily done by the approved health professional or doctor in the course of taking any sample of blood which the approved health professional or doctor believes on reasonable grounds was required or allowed to be taken from any person under this section.
S. 31AA inserted by No. 66/2012 s. 13.
31AA Drug assessment
S. 31AA(1) amended by No. 37/2014 s. 10(Sch. item 106.6(a)).
(a) any person he or she finds operating a vessel; or
(b) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or
(c) any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or
(d) any person that is or has been a master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or
(e) any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or
S. 31AA(1)(f) amended by No. 37/2014 s. 10(Sch. item 106.6(a)(i)).
(f) any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was operating the vessel or the master or pilot of the vessel when it was involved in the accident; or
(g) any person whom he or she has required under section 29 to undergo a preliminary breath test; or
(h) any person required under section 31 to furnish a sample of breath or from whom a sample of blood was required to be taken under section 31(9A)—
to undergo an assessment of drug impairment if, in the opinion of the police officer, that person's behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone and for that purpose may further require the person to accompany a police officer to a place where the assessment is to be carried out and to remain there until whichever of the following occurs first—
(i) the assessment has been carried out;
(j) the passing of 3 hours after the person was—
(2) A person is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the person was—
S. 31AA(3) amended by No. 37/2014 s. 10(Sch. item 106.6(b)).
(3) An assessment of drug impairment must be carried out by a police officer authorised to do so by the Chief Commissioner of Police.
(4) An assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under subsection (5).
S. 31AA(5) amended by No. 34/2023 s. 127(Sch. 1 item 6.4).
(5) Safe Transport Victoria may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.
(6) The carrying out of an assessment of drug impairment must be video-recorded unless the prosecution satisfies the court that a video‑recording has not been made because of exceptional circumstances.
(7) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), a copy of the video-recording, if any, must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.
(8) Subject to subsection (9), the video-recording of the carrying out of an assessment of drug impairment on a person is only admissible in a proceeding against that person for an offence against this Act for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under subsection (5).
(9) Evidence obtained as a result of an assessment of drug impairment carried out on a person is inadmissible as part of the prosecution case in proceedings against that person for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 31AC.
S. 31AA(10) amended by No. 37/2014 s. 10(Sch. item 106.6(c)).
(10) In any proceeding under this Act—
S. 31AA(10)(a) amended by No. 37/2014 s. 10(Sch. item 106.6(c)(i)).
(a) the statement of any police officer that on a particular date he or she was authorised by the Chief Commissioner of Police under subsection (3) to carry out an assessment of drug impairment; or
S. 31AA(10)(b) amended by No. 37/2014 s. 10(Sch. item 106.6(c)(i)).
(b) a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised by the Chief Commissioner under subsection (3) to carry out an assessment of drug impairment—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer.
S. 31AB inserted by No. 66/2012 s. 13.
31AB Blood and urine samples
S. 31AB(1) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(i)).
(1) If a person undergoes an assessment of drug impairment when required under section 31AA to do so and the assessment, in the opinion of the police officer carrying it out, indicates that the person may be impaired by a drug or drugs, any police officer may require the person to do either or both of the following—
S. 31AB(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(ii)).
(a) allow a registered medical practitioner or an approved health professional nominated by that police officer to take from the person a sample of that person's blood for analysis;
S. 31AB(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.7(a)(ii)).
(b) furnish to a registered medical practitioner or an approved health professional nominated by that police officer a sample of that person's urine for analysis—
and for that purpose may further require the person to accompany a police officer to a place where the sample is to be taken or furnished and to remain there until whichever of the following occurs first—
(c) the sample has been taken or furnished;
S. 31AB(2) amended by No. 37/2014 s. 10(Sch. item 106.7(b)).
(2) A police officer must not require a person to allow a sample of his or her blood to be taken for analysis under subsection (1)(a) if that person has already had a sample of blood taken from him or her under section 31 after—
(b) being master or pilot of a vessel underway or at anchor; or
(c) being an occupant of a vessel.
S. 31AB(3) amended by No. 37/2014 s. 10(Sch. item 106.7(b)), repealed by No. 55/2017 s. 36.
(4) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with this section.
Penalty: 12 penalty units.
(5) 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, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
S. 31AB(6) amended by No. 37/2014 s. 10(Sch. item 106.7(b)).
(6) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 28(1), a copy of a written report on that assessment prepared by the police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.
S. 31AC inserted by No. 66/2012 s. 13.
31AC Destruction of identifying information
(1) In this section, relevant offence means—
(a) an offence under section 28(1)(ba) or (ea); or
(b) any other offence arising out of the same circumstances; or
(c) any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.
(2) If an assessment of drug impairment has been carried out on a person under section 31AA and—
(a) the person has not been charged with a relevant offence at the end of the period of 12 months after the assessment; or
(b) the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence, whether on appeal or otherwise, before the end of that period—
the Chief Commissioner of Police must, subject to subsection (4), destroy, or cause to be destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.
(3) A video-recording and any related material and information referred to in subsection (2) must be destroyed—
(a) in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or
(b) in a case to which subsection (2)(b) applies—
(i) within 1 month after the conclusion of the proceeding and the end of any appeal period; or
(ii) if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within 1 month after dismissal under that section.
S. 31AC(4) amended by No. 37/2014 s. 10(Sch. item 106.8).
(4) A police officer may, before the end of a period referred to in subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in subsection (3) is a reference to that period as so extended.
(5) If the Magistrates' Court makes an order under subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.
(6) If a video-recording or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that person in writing whether the destruction has occurred.
(7) A person who knowingly—
(a) fails to destroy; or
(b) uses, or causes or permits to be used—
a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
(8) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
S. 31AD inserted by No. 66/2012 s. 13.
31AD Preliminary oral fluid tests
S. 31AD(1) amended by No. 37/2014 s. 10(Sch. item 106.8).
(a) any person he or she finds operating a vessel; or
(b) any person he or she finds to be a master or pilot of a vessel underway or at anchor; or
(c) any person that is or has been operating a vessel that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or
(d) any person that is or has been the master or pilot of a vessel underway or at anchor that has been requested or signalled to stop at or to go to a preliminary testing station under section 30(3); or
(e) any person whom he or she believes on reasonable grounds has within the last 3 preceding hours operated a vessel or been the master or pilot of a vessel underway or at anchor when it was involved in an accident; or
S. 31AD(1)(f) amended by No. 37/2014 s. 10(Sch. item 106.8).
(f) any person whom he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a vessel underway or at anchor when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was operating the vessel or the master or pilot of the vessel when it was involved in the accident—
to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if on board a vessel, to leave the vessel for the purpose of undergoing the test.
(2) A preliminary oral fluid test must be carried out in accordance with the prescribed procedure*.*
(3) A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.
S. 31AD(4) amended by No. 37/2014 s. 10(Sch. item 106.8).
(4) A person required to undergo a preliminary oral fluid test must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the police officer who, under this section, is requiring the test to be undergone, a sufficient sample of oral fluid has been captured by the device or unit.
S. 31AD(5) amended by No. 37/2014 s. 10(Sch. item 106.8).
(5) A police officer who, under this section, is requiring another person to undergo a preliminary oral fluid test may give any reasonable direction as to the physical actions that are necessary for the person to undergo the test*.*
(6) Without limiting section 30(3), a person required to undergo a preliminary oral fluid test is required to remain at the place at which the test is being carried out until the sample of oral fluid provided has been tested by a prescribed device.
(7) A person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person was—
S. 31AE inserted by No. 66/2012 s. 13.
31AE Oral fluid testing and analysis
S. 31AE(1) amended by No. 37/2014 s. 10(Sch. item 106.9(a)(i)).
(1) If a person undergoes a preliminary oral fluid test when required to do so under section 31AD by a police officer and—
S. 31AE(1)(a) amended by No. 37/2014 s. 10(Sch. item 106.9(a)(ii)).
(a) the test, in the opinion of the police officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or
S. 31AE(1)(b) amended by No. 37/2014 s. 10(Sch. item 106.9(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 31AD(4)—
any police officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 32A and for that purpose may further require the person to accompany any police officer to a place where the sample is to be provided and to remain there until whichever the first occurs—
(c) the person has provided the sample and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11);
Example
A person may be required to go to a police station, a public building or a police car to provide a sample of oral fluid under this section.
S. 31AE(2) amended by No. 37/2014 s. 10(Sch. item 106.9(b)).
(2) A police officer may require any person who is required to undergo an assessment of drug impairment under section 31AA or to furnish a sample of breath for analysis by a breath analysing instrument under section 31 to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 32B 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 assessment or furnishing the sample of breath until whichever the first occurs—
(a) the person has provided the sample of oral fluid and any further sample required to be provided under subsection (4), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and the assessment has been carried out or the sample of breath has been furnished (as the case requires);
(3) The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.
S. 31AE(4) amended by No. 37/2014 s. 10(Sch. item 106.9(c)).
(4) The police officer who required a person to provide a sample of oral fluid to be provided under subsection (1) or (2) may require the person who provided it to provide one or more further samples if it appears to the police officer that the prescribed device is incapable of testing for the presence in the sample, or each of the samples, previously provided of a prescribed illicit drug because the amount of sample provided was insufficient or because of a power failure or malfunctioning of the device or for any other reason whatsoever.
S. 31AE(5) amended by No. 37/2014 s. 10(Sch. item 106.9(d)).
(5) Only a police officer authorised in writing by the Chief Commissioner of Police, for the purposes of this section, may carry out the procedure for the provision of a sample of oral fluid under this section.
S. 31AE(6) amended by No. 37/2014 s. 10(Sch. item 106.9(e)).
(6) The Chief Commissioner of Police may only authorise a police officer for the purposes of this section if satisfied that the police officer has the appropriate training to carry out the prescribed procedure for the provision of a sample of oral fluid under this section.
(7) A prescribed device may be comprised of a collection unit and a testing unit and one or more other parts.
S. 31AE(8) amended by No. 37/2014 s. 10(Sch. item 106.9(f)).
(8) A person required to provide a sample of oral fluid under this section must do so by placing the prescribed device, or the collection unit of the device, into his or her mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the police officer, a sufficient sample of oral fluid has been captured by the device or unit.
S. 31AE(9) amended by No. 37/2014 s. 10(Sch. item 106.9(f)).
(9) A police officer who, under this section, is requiring another person to provide a sample of oral fluid may give any reasonable direction as to the physical actions that are necessary for the person to provide the sample.
(10) A person is not obliged to provide a sample of oral fluid under this section if more than 3 hours have passed since the person was—
S. 31AE(11) amended by No. 37/2014 s. 10(Sch. item 106.9(g)).
(11) If a test by a prescribed device of a sample of oral fluid provided under this section indicates, in the opinion of the police officer who carried out the procedure in the course of which the sample was provided, that the person's oral fluid contains a prescribed illicit drug, the police officer must retain a part of the sample and deliver another part to the person by whom the sample was provided.
(12) A person must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section 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. 31AE(13) amended by No. 37/2014 s. 10(Sch. item 106.9(h)).
(13) The police officer who required a person to provide a sample of oral fluid under subsection (1) or (2) may require that person to allow a registered medical practitioner or an approved health professional nominated by the police officer who required the sample to take from the person a sample of that person's blood for analysis if it appears to the police officer that—
(a) that person is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition; or
(b) the prescribed device is incapable of testing for the presence in the sample of a prescribed illicit drug for any reason whatsoever—
and for that purpose may further require that person to accompany a police officer to a place where the sample of blood is to be taken and to remain there until whichever of the following first occurs—
(c) the sample has been taken;
S. 31AE(14) amended by No. 37/2014 s. 10(Sch. item 106.9(i)), repealed by No. 55/2017 s. 37.
(15) A person who allows the taking of a sample of his or her blood in accordance with subsection (13) must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section.
(16) 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 (13).
Penalty: 12 penalty units.
(17) 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 (13).
S. 31AE(18) amended by No. 37/2014 s. 10(Sch. item 106.9(i)).
(18) A person who is required under this section to provide a sample of oral fluid may, immediately after being given a part of the sample under subsection (11), request the police officer making the requirement to arrange for the taking, in the presence of any 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 in whose presence the sample is taken.
S. 31AE(19) repealed by No. 55/2017 s. 37.
(20) Nothing in subsection (18) relieves a person from any penalty under section 28(1)(eb) for refusing to provide a sample of oral fluid.
(21) Evidence derived from a sample of oral fluid provided in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under subsection (18) if reasonable efforts were made to comply with the request.
S. 31AE(22) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(ii)).
(22) In any proceeding under this Act—
S. 31AE(22)(a) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(i)).
(a) the statement of any police officer that on a particular date he or she was authorised under subsection (6) for the purposes of this section; or
S. 31AE(22)(b) amended by No. 37/2014 s. 10(Sch. item 106.9(j)(i)).
(b) a certificate purporting to be signed by the Chief Commissioner of Police certifying that a particular police officer named in it is authorised under subsection (6) for the purposes of this section—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer.