55Breath analysis

55 Breath analysis S. 55(1) amended by Nos 53/1989 s. 21(2), 19/1991 s. 10(1)(b), 17/1994 s. 10(1)(2), 60/1994 s. 29(3)(a)(b), 46/1998 s. 7(Sch. 1), 57/1998 s. 25(1), 92/2001 s. 16(1), 111/2003 s. 12, 50/2012 s. 29(5), 70/2013 s. 4(Sch. 2 item 44.6), 37/2014 s. 10(Sch. item 147.10(a)(i)), 70/2016 s. 41(6)[[10]](#endnote-11), 68/2017 s. 79(3), 49/2019 s. 116(Sch. 1 item 125). (1) If a person undergoes a preliminary breath test when required by a police officer or an employee in the Department under section 53 to do so and— S. 55(1)(a) amended by Nos 19/1991 s. 10(1)(a), 94/2003 ss 8(21), 10(4), 37/2014 s. 10(Sch. item 147.10(a)(ii)), 70/2016 s. 41(6)(a), 49/2019 s. 116(Sch. 1 item 125(a)). (a) the test in the opinion of the police officer or employee in the Department in whose presence it is made indicates that the person's breath contains alcohol; or S. 55(1)(b) amended by Nos 37/2014 s. 10(Sch. item 147.10(a)(ii)), 70/2016 s. 41(6)(a), 49/2019 s. 116(Sch. 1 item 125(a)). (b) the person, in the opinion of the police officer or employee in the Department, refuses or fails to carry out the test in the manner specified in section 53(3)— any police officer or, if the requirement for the preliminary breath test was made by an employee in the Department, any police officer or any employee in the Department may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a police officer or an employee in the Department authorised in writing by the Secretary or the Head, Transport for Victoria, as the case requires, for the purposes of section 53 to a place or vehicle where the sample of breath is to be furnished and to remain there until 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) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner. Example to s. 55(1) inserted by No. 92/2001 s. 16(2). A person may be required to go to a police station, a public building, a booze bus or a police car to furnish a sample of breath. S. 55(2) amended by Nos 53/1989 s. 21(2), 19/1991 s. 10(2)(a)(b), 17/1994 s. 10(2), 92/2001 s. 16(1), 111/2003 s. 12, 37/2014 s. 10(Sch. item 147.10(b)), 49/2014 s. 12. (2) A police officer may require any person whom that police officer reasonably believes to have offended against section 49(1)(a), (b) or (bc) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 53) and for that purpose may further require the person to accompany a police officer to a place or vehicle where the sample of breath is to be furnished and to remain there until 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) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner. Example to s. 55(2) inserted by No. 92/2001 s. 16(2). A person may be required to go to a police station, a public building, a booze bus or a police car to furnish a sample of breath. S. 55(2AA) inserted by No. 23/2001 s. 10(1), amended by No. 37/2014 s. 10(Sch. item 147.10(c)). (2AA) A police officer may require any person who is required to undergo a drug assessment under section 55A 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— S. 55(2AA)(a) amended by No. 111/2003 s. 12. (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; or (b) 3 hours after the driving, being an occupant of or being in charge of the motor vehicle— S. 55(2A) inserted by No. 17/1994 s. 10(3), amended by Nos 58/1995 s. 14(a)(b), 23/2001 s. 10(2), 94/2003 ss 8(22), 10(5). (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. 55(4) amended by No. 78/1987 s. 10, substituted by No. 17/1994 s. 10(4), amended by Nos 100/1995 s. 51(1), 57/1998 s. 4(5)(a), 94/2003 ss 8(23), 10(6). (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 containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath. S. 55(4A) inserted by No. 19/1991 s. 22(1), repealed by No. 17/1994 s. 10(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. 55(6) amended by No. 19/1991 s. 10(3). (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 last drove, was an occupant of or was in charge of a motor vehicle. S. 55(7)(8) repealed by No. 17/1994 s. 10(5). S. 55(9) amended by No. 41/1992 s. 4(h). (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. 55(9A) inserted by No. 17/1994 s. 10(6), amended by Nos 100/1995 s. 51(2), 14/2000 ss 17(1), 18, 23/2001 s. 10(3), 94/2003 s. 12, 37/2014 s. 10(Sch. item 147.10(c)). (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. 55(9A)(b) amended by No. 94/2003 ss 8(24), 10(7). (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 the sample has been taken or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner. S. 55(9B) inserted by No. 17/1994 s. 10(6), amended by Nos 100/1995 s. 51(2), 14/2000 s. 17(2), repealed by No. 70/2016 s. 32. S. 55(9C) inserted by No. 17/1994 s. 10(6). (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. 55(9D) inserted by No. 17/1994 s. 10(6), amended by Nos 100/1995 s. 51(2), 14/2000 s. 17(1). (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. 55(9E) inserted by No. 17/1994 s. 10(6), amended by Nos 100/1995 s. 51(2), 14/2000 s. 17(3)(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. 55(10) amended by Nos 17/1994 s. 10(7)(a)(b), 23/1994 s. 118(Sch. 1 item 50.4), 14/2000 s. 17(1), 37/2014 s. 10(Sch. item 147.10(c)). (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. 55(11) repealed by No. 70/2016 s. 32. S. 55(12) amended by No. 17/1994 s. 10(8). (12) Nothing in subsection (10) relieves a person from any penalty under section 49(1)(e) for refusing to furnish a sample of breath. S. 55(13) inserted by No. 17/1994 s. 10(9). (13) 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. 55(14) inserted by No. 17/1994 s. 10(9), amended by No. 94/2003 ss 8(24), 10(7). (14) 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 49(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. 55(14)(b) amended by No. 100/1995 s. 51(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. 55A inserted by No. 14/2000 s. 9.