31KApplication of Evidence Act 2008

31K Application of Evidence Act 2008 To avoid doubt, the proceeding on an application for the making of a licence eligibility order is a proceeding that relates to sentencing for the purposes of section 4(2) of the **Evidence Act 2008**. S. 31KA (Heading) amended by No. 7/2019 s. 12(1). S. 31KA inserted by No. 49/2014 s. 17, amended by No. 5/2016 s. 36(Sch. 1 item 16), substituted by No. 70/2016 s. 12. 31KA Administrative scheme for imposing alcohol interlock condition S. 31KA(1) substituted by No. 7/2019 s. 12(2). (1) Subject to section 50AAAE, this section applies to a person— (a) who either— (i) has been disqualified from obtaining a driver licence or learner permit under section 50 in respect of an offence under section 49(1) (other than an offence under section 49(1)(a) involving only a drug or under section 49(1)(ba), (bb), (ca), (ea), (eb), (h) or (i)); or (ii) has been disqualified, or by force of section 3AD is taken to have been disqualified, from obtaining a driver licence or learner permit under section 89C in respect of a drink‑driving infringement; and (b) who has ceased to be so disqualified. If the person has committed other offences, the person may be required to obtain a licence eligibility order before a driver licence or learner permit is granted. See section 31A. S. 31KA(2) amended by No. 49/2019 s. 116(Sch. 1 item 63(a)). (2) A driver licence or learner permit granted by the Secretary to a person to whom this section applies must be made subject to an alcohol interlock condition. S. 31KA(3) amended by No. 49/2019 s. 116(Sch. 1 item 63(b)). (3) The Secretary may impose an alcohol interlock condition under this section on the basis of the application for a driver licence or learner permit made by the person and any matters that appear in records kept by the Secretary without conducting any hearing or investigation into the matter. S. 31KA(4) substituted by No. 7/2019 s. 12(3). (4) A person granted a driver licence or learner permit on which an alcohol interlock condition is imposed under this section cannot apply under section 50AAAB for the removal of the condition during the period (the ***relevant period***), determined in accordance with subsection (5), beginning on the first grant of the licence or permit. S. 31KA(5) substituted by No. 7/2019 s. 12(3). (5) For the purposes of subsection (4), the relevant period applying to a person is the minimum period specified in column 4 of the Table in Schedule 1B applying to the offence for which the person was disqualified from obtaining a driver licence or learner permit. S. 31KA(6) inserted by No. 7/2019 s. 12(3). (6) For the purposes of subsection (5) and despite section 48(2), in determining for the purposes of Schedule 1B whether an offence under a paragraph of section 49(1) was a first, second or subsequent offence, any previous conviction or finding of guilt of the person for any of the following offences is to be disregarded— (a) an offence under section 49(1)(a) (involving only a drug) or of an offence under section 49(1)(ba), (bb), (ca), (eb), (h) or (i); (b) an offence referred to in section 89(1), (3) or (4) of the **Sentencing Act 1991** (involving only a drug); (c) an offence committed in another State or a Territory, the necessary elements of which consist of the elements that constitute any of the offences referred to in paragraph (a) or (b). S. 31KB inserted by No. 70/2016 s. 12, substituted by No. 68/2017 s. 8. 31KB Administrative scheme for imposing alcohol interlock condition—interstate drink-driving offence (1) This section applies to a person if— S. 31KB(1)(a) amended by No. 7/2019 s. 13(1)(a). (a) the person holds a current licence or permit authorising the person to drive a motor vehicle issued in another State or a Territory that is subject to an alcohol interlock condition and paragraph (c) does not apply to the person; or (b) the person— (i) was prevented under section 23A from obtaining a driver licence or learner permit because the person was disqualified from driving in another State or a Territory in respect of a corresponding interstate drink-driving offence; and S. 31KB (1)(b)(ii) amended by No. 7/2019 s. 13(1)(b). (ii) is no longer prevented from obtaining a driver licence or learner permit; and S. 31KB (1)(b)(iii) inserted by No. 7/2019 s. 13(1)(c). (iii) does not hold a current licence or permit issued in another State or a Territory authorising the person to drive a motor vehicle; or (c) the person— (i) has been disqualified under section 25(3) from obtaining a driver licence or learner permit in respect of a corresponding interstate drink-driving offence; and (ii) has ceased to be so disqualified. If the person has committed other offences, the person may be required to obtain a licence eligibility order before a driver licence or learner permit is granted. See section 31A. S. 31KB(2) amended by No. 49/2019 s. 116(Sch. 1 item 64(a)). (2) Subject to subsection (8)(b), a driver licence or learner permit granted by the Secretary to a person to whom this section applies must be made subject to an alcohol interlock condition. S. 31KB(3) amended by No. 49/2019 s. 116(Sch. 1 item 64(b)). (3) The Secretary may impose an alcohol interlock condition under this section on the basis of the application for a driver licence or learner permit made by the person and any matters that appear in records kept by the Secretary without conducting any hearing or investigation into the matter. (4) A person granted a driver licence or learner permit on which an alcohol interlock condition is imposed under this section cannot apply under section 50AAAB for the removal of the condition during the period (the ***relevant period***) determined in accordance with subsection (5) or (6). (5) For the purposes of subsection (4), the relevant period applying to a person referred to in subsection (1)(a) is the period beginning on the first granting of the driver licence or learner permit and ending on the day on which— (a) the person would have been eligible to apply for the removal of the alcohol interlock condition imposed by the other State or a Territory; or (b) the alcohol interlock condition imposed by the other State or a Territory would have ceased by operation of law— had the person resided or remained in the other State or a Territory. (6) For the purposes of subsection (4), the relevant period applying to a person referred to in subsection (1)(b) or (c) is the period beginning on the first granting of the driver licence or learner permit and ending on— (a) the expiry of the minimum period specified in Column 4 of the table in Schedule 1B that would apply had the person been convicted or found guilty of the Victorian drink-driving offence to which the interstate drink-driving offence has been declared to correspond by Order made under section 25(1); or S. 31KB(6)(b) amended by No. 49/2019 s. 116(Sch. 1 item 64(c)). (b) if subsection (8) applies—an earlier date determined by the Secretary. (7) For the purposes of subsection (6)(a)— S. 31KB(7)(a) substituted by No. 7/2019 s. 13(2). (a) despite section 48(2), in determining for the purposes of Schedule 1B whether the Victorian drink-driving offence is a first, second or subsequent offence, any previous conviction or finding of guilt of the person for any of the following offences is to be disregarded— (i) an offence under section 49(1)(a) (involving only a drug) or of an offence under section 49(1)(ba), (bb), (ca), (eb), (h) or (i); (ii) an offence referred to in section 89(1), (3) or (4) of the **Sentencing Act 1991** (involving only a drug); (iii) an offence committed in another State or a Territory, the necessary elements of which consist of the elements that constitute any of the offences referred to in subparagraph (i) or (ii); and (b) if the minimum period applying to the Victorian drink-driving offence varies depending on the concentration of alcohol in the person's blood or breath, the minimum period is that which would apply had the person recorded the same concentration of alcohol in respect of the Victorian drink-driving offence as— (i) the concentration of alcohol notified as having been recorded in respect of the person's blood or breath in respect of the corresponding interstate drink‑driving offence; or S. 31KB(7)(b)(ii) amended by No. 49/2019 s. 116(Sch. 1 item 64(c)). (ii) if, instead of a fixed concentration of alcohol, the Secretary is notified that the concentration of alcohol recorded in the person's blood or breath fell within a range of concentration in respect of the corresponding interstate drink-driving offence—the concentration of alcohol at the lower end of that range. S. 31KB(8) amended by No. 49/2019 s. 116(Sch. 1 item 64(d)). (8) If a person to whom subsection (6) applies satisfies the Secretary that the person has complied with the requirements of an alcohol interlock condition imposed by another State or a Territory in respect of the corresponding interstate drink-driving offence, the Secretary may determine that— (a) the relevant period ends on an earlier date for the purposes of subsection (6); or (b) a driver licence or learner permit may be granted to the person without an alcohol interlock condition if the alcohol interlock condition imposed by the other State or the Territory was for the same or a longer period than the relevant period that would otherwise apply to the person under subsection (6). S. 31KC inserted by No. 70/2016 s. 12. 31KC Administrative alcohol interlock conditions to operate concurrently with other alcohol interlock conditions If an alcohol interlock condition is imposed on a person's driver licence or learner permit under section 31KA or 31KB, the period during which the condition has effect operates concurrently with— (a) the period during which any other alcohol interlock condition imposed under section 31KA or 31KB has effect; and (b) the period during which any alcohol interlock condition imposed pursuant to a direction given by the Magistrates' Court under section 50AAA has effect. S. 31L (Heading) amended by No. 49/2019 s. 105(1). S. 31L inserted by No. 56/2013 s. 3, amended by Nos 49/2014 s. 37(7), 49/2019 s. 105(2).