Div 3Miscellaneous

Division 3—Miscellaneous 19—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood If a person submits to a preliminary breath test or breath analysis and the preliminary breath test apparatus or 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 Act, the Rail Safety National Law and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood. 20—Evidence (1) Without affecting the admissibility of evidence that might be given otherwise than pursuant to this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by an authorised person and, if the requirements and procedures in relation to breath analysing instruments and breath analysis under this Part, Part 3 Division 9 of the Rail Safety National Law or prescribed by regulation, including subsections (4) and (5), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis, and throughout the preceding period of 3 hours. (2) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except— (a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with this Part, Part 3 Division 9 of the Rail Safety National Law or in accordance with the regulations; and (b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant. (3) No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin‑operated breath testing or breath analysing machine installed in a hotel or other licensed premises. (4) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying— (a) the reading produced by the breath analysing instrument; and (b) the date and time of the analysis. (5) If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the instrument is the prescribed concentration of alcohol, the person operating the breath analysing instrument must immediately— (a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Part and Part 3 Division 9 of the Rail Safety National Law in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and (b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person. (6) A certificate— (a) purporting to be signed by the Regulator and to certify that a person named in the certificate is an authorised person; or (b) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or (c) purporting to be signed by an authorised person and to certify that— (i) a breath analysing instrument used by the person was in proper order and was properly operated; and (ii) the provisions of this Part, Part 3 Division 9 of the Rail Safety National Law and the regulations with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. (7) A certificate purporting to be signed by an authorised person and to certify that— (a) a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and (b) the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with, is, in the absence of proof to the contrary, proof of the matters so certified. (8) A certificate purporting to be signed by an authorised person and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. (9) Subject to subsection (21) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified. (10) Subject to subsection (21), a certificate purporting to be signed by an authorised person and to certify that— (a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and (b) the breath analysing instrument produced a reading specified in the certificate; and (c) a statement in writing required by subsection (4) was delivered in accordance with that subsection, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. (11) A certificate purporting to be signed by an authorised person and to certify— (a) that on a date and at a time stated in the certificate, a person named in the certificate submitted to a breath analysis; and (b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (5)(a); and (c) that— (i) the person did not make a request for an approved blood test kit in accordance with the regulations; or (ii) at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (5)(b), is, in the absence of proof to the contrary, proof that the requirements of subsection (5) were complied with in relation to the person. (12) A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (5)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved— (a) that the defendant delivered the kit unopened to a medical practitioner or registered nurse for use in taking a sample of the defendant's blood; and (b) by evidence of the medical practitioner or registered nurse, that the medical practitioner or registered nurse was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (2). (13) Subject to subsection (21), an apparently genuine document purporting to be a certificate under this Part, or a copy of such a certificate, and purporting to be signed by an authorised person, medical practitioner, registered nurse or analyst under this Part is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate. (14) If a certificate of an analyst relating to a sample of blood taken under this Part or Part 3 Division 9 of the Rail Safety National Law is received in evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken. (15) If it is proved by the prosecution in the proceedings for an offence that a concentration of alcohol was present in the defendant's blood at the time at which a sample of blood was taken under this Part or Part 3 Division 9 of the Rail Safety National Law, it will be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of 3 hours immediately preceding the taking of the sample. (16) If certificates of an authorised person and analyst, or a medical practitioner and analyst, or a registered nurse and analyst, under this Part or Part 3 Division 9 of the Rail Safety National Law are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood. (17) If a certificate of an analyst relating to a sample of oral fluid or blood taken under this Part or Part 3 Division 9 of the Rail Safety National Law is received as evidence in proceedings before a court and states that a drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the drug stated in the certificate was present in the sample when the sample was taken. (18) If it is proved by the prosecution in proceedings for an offence that a drug was present in the defendant's oral fluid or blood at the time at which a sample of oral fluid or blood was taken under this Part or Part 3 Division 9 of the Rail Safety National Law, it will be conclusively presumed that the drug was present in the defendant's oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample. (19) A certificate purporting to be signed by an authorised person and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. (20) A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified. (20a) A certificate— (a) purporting to be signed by the Regulator or Commissioner of Police and to certify that a person named in the certificate is authorised by the Regulator or Commissioner of Police (as the case may be) to conduct drug screening tests; or (b) purporting to be signed by a police officer or a person authorised by the Regulator or Commissioner of Police to conduct drug screening tests and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. (21) A certificate referred to in subsection (9), (10) or (13) cannot be received as evidence in proceedings for an offence— (a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or (b) if the person on whom a copy of the certificate has been served has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or (c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial. 22—Protection of medical practitioners etc from liability (1) No proceedings lie against a medical practitioner or registered nurse, or a person acting under the supervision or direction of a medical practitioner or registered nurse, in respect of anything done in good faith and in compliance, or purported compliance, with the provisions of this Part or Part 3 Division 9 of the Rail Safety National Law. (2) A medical practitioner or registered nurse must not take a sample of the person's blood under this Part or Part 3 Division 9 of the Rail Safety National Law if, in his or her opinion, it would be injurious to the medical condition of the person to do so. (3) A medical practitioner or registered nurse is not obliged to take a sample of a person's blood under this Part or Part 3 Division 9 of the Rail Safety National Law if the person objects to the taking of the sample of blood and persists in that objection after the medical practitioner or registered nurse (as the case requires) has informed the person, that unless the objection is made on genuine medical grounds, it may constitute an offence against this Part or the Rail Safety National Law. 23—Regulations—drug and alcohol testing procedures (1) The Governor may make any regulations that are contemplated by this Part or Part 3 Division 9 of the Rail Safety National Law, or are necessary or expedient for the purposes of this Part or Part 3 Division 9 of the Rail Safety National Law. (2) Without limiting subsection (1), the Governor may make regulations making provision for or in relation to any other matter associated with— (a) the testing of persons for the presence of alcohol or a drug, the analysis of test results, the use of results from any testing or analysis, or the steps that may be taken on account of any testing or any evidence or information produced as a result of testing; or (b) the destruction of a sample of oral fluid or blood taken under this Part or Part 3 Division 9 of the Rail Safety National Law (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test).