Div 3Alcohol testing

Division 3—Alcohol testing 36—Alcotesting and breath analyses (1) An alcotest or breath analysis to which a test subject has been required to submit under Part 6 Division 2 of the Act may not be commenced more than 8 hours after the test subject has come off duty, or more than 8 hours following a critical incident or high risk driving occurrence, as the case may be. (2) The following persons may carry out breath testing of a test subject under this Division: (a) in the case of an alcotest—a member of SA Police; (b) in the case of a breath analysis—an authorised member. (3) The performance of an alcotest or breath analysis commences when a direction is first given to the test subject to exhale into the alcotest apparatus or breath analysing instrument to be used for the test. (4) If an alcotest conducted indicates that the prescribed concentration of alcohol may be present in the blood of the test subject, a member of SA Police may require the test subject to submit to a breath analysis by means of a breath analysing instrument. 37—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood If a test subject submits to a breath analysis and the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Part, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood. 38—Conduct of alcotest and breath analysis (1) A test subject required under the Act to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of the person operating the alcotest apparatus or breath analysing instrument in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus or instrument by which the alcotest or breath analysis is conducted in accordance with the directions of the person operating the apparatus or instrument. (2) If a test subject submits to a breath analysis, the breath analysis must be conducted in the following manner: (a) the test subject must provide 2 separate samples of breath for analysis; (b) each sample must be provided in accordance with the directions of the authorised member conducting the analysis and must consist of not less than 1 litre of breath; (c) there must be an interval of not less than 2 minutes and not more than 10 minutes between the provision of the samples. (3) Despite subregulation (2)— (a) if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the test subject may be required to provide 2 further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (2)(b) and (c)); or (b) if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the test subject— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (2)(b) and (c)); or (c) if, on analysing 2 samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample— (i) those samples must be disregarded; and (ii) the test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (2)(b) and (c)); or (d) if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample— (i) the first sample is to be disregarded; and (ii) the test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (2)(b) and (c)). (4) If a test subject submits to a breath analysis, the result of the breath analysis will, for the purposes of Part 6 Division 2 of the Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the test subject in accordance with this regulation, that indicates the lower concentration of alcohol in the test subject's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded). 39—Procedures for voluntary blood test The following are the procedures in accordance with which a sample of a test subject's blood must be taken and dealt with for the purposes of testing for the presence of alcohol: (a) the test subject must cause the sample to be taken by a medical practitioner or registered nurse of the test subject's choice and must deliver to the sample collector— (i) the blood test kit supplied to the test subject under regulation 41(4)(b) for use for that purpose; and (ii) the blood test information sheet supplied to the test subject under regulation 40; (b) the sample must be taken by the sample collector as soon as is reasonably practicable but, in any event, within 4 hours of the test subject having submitted to the breath analysis indicating, for the purposes of the Act, the presence of alcohol in the test subject's blood; (c) the sample collector must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit); (d) each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the sample collector must be such as to furnish 2 such quantities of blood; (e) the sample collector must seal each container by application of the adhesive seal bearing an identifying number provided as part of the blood test kit; (f) it is the duty of the sample collector to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the test subject; (g) the sample collector must then complete a certificate in the approved form by inserting the particulars required by the form; (h) the certificate must be signed by the sample collector certifying as to the matters set out in the form; (i) the certificate must also bear the signature of the test subject, attested to by the signature of the sample collector; (j) the original of the signed certificate must then be delivered to the test subject together with 1 of the sealed containers containing part of the blood sample; (k) a copy of the signed certificate must be delivered by the sample collector together with the other sealed container containing part of the blood sample to a member of SA Police who must, in turn, deliver that copy of the certificate and the blood sample container to Forensic Science SA; (l) the blood sample container and copy of the certificate referred to in paragraph (k) must not be delivered into the possession of the test subject; (m) on receipt of the blood sample container and certificate at Forensic Science SA, the blood in the container must be analysed as soon as is reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood; (n) the analyst must then complete and sign a certificate certifying as to the following matters: (i) the date of receipt at Forensic Science SA of the blood sample container and the certificate accompanying the blood sample container; (ii) the identifying number appearing on the adhesive seal used to seal the blood sample container; (iii) the name and professional qualifications of the analyst; (iv) the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood; (v) any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; (vi) any other information relating to the blood sample or analysis or both that the analyst thinks fit to include; (o) the analyst's certificate must be sent by post to the test subject at the address shown as the test subject's address on the certificate accompanying the blood sample container; (p) a copy of the analyst's certificate must be sent to or retained on behalf of the Minister; (q) a copy of the analyst's certificate must also be sent to the Commissioner. 40—Request for approved blood test kit (1) For the purposes of regulation 41(4)(b), a request for an approved blood test kit must be made in accordance with the following provisions: (a) the request may, in the first instance, be made orally to the authorised member conducting the breath analysis; (b) on such a request having been made by the test subject, the authorised member or any other member of SA Police present must complete a written request in an approved form by inserting the particulars required by the form; (c) the test subject making the request must then sign the request form in the presence of the authorised member or other member of SA Police and the test subject's signature must be attested to by the signature of the authorised member or other officer; (d) the original of the signed request form may be retained by the test subject making the request; (e) a copy of the signed request form must be delivered to the authorised member or other member of SA Police. (2) The copy of the request form delivered to the authorised member or other member of SA Police must be delivered to the Commissioner or retained on the Commissioner's behalf for 12 months from the day on which the request form was signed by the test subject making the request. (3) If a test subject requests an approved blood test kit, the authorised member or any other member of SA Police must provide the test subject with a blood test information sheet.