Road Safety (Alcohol and Drugs) Act 1970

The Act revolves around several key definitions and concepts. The prescribed concentration is fixed at 0.05 grams of alcohol in 210 litres of breath or 0.05 grams in 100 millilitres of blood (section 2(1)). A breath test is a preliminary roadside test using an approved device (not a breath analysing instrument), while a breath analysis is a more precise evidentiary procedure carried out by a breath analysing instrument operated by an approved operator (section 2(1)). Similarly, an oral fluid test is a preliminary test using an approved device, and an oral fluid analysis is a more detailed procedure for ascertaining whether a prescribed illicit drug is present (section 2(1)). The term prescribed illicit drug means a drug prescribed in the regulations as an illicit drug (section 2(1)). A prescribed vehicle includes a motor vehicle used for passenger transport, a vehicle designed to carry 13 or more adult passengers, a vehicle with a GVM exceeding 4.5 tonnes, and a vehicle used to transport dangerous goods (section 2(2A)). The concept of driving is broadly defined in section 2(4) to include having charge of the vehicle, being in control, having control of steering, braking or other systems even while being towed, attempting to drive, and doing an act with the intention to drive as part of an interrupted series of events. A person may be taken to be driving even if the vehicle is stationary or if the person leaves or is removed from the vehicle afterwards (section 2(5)). Critically, when a learner licence holder is driving, both the learner and the supervising driver (the holder of an Australian driver licence seated and instructing) are taken to be driving (section 2(6)). However, a supervisor has a defence if he or she proves lack of consent to being in the vehicle or lack of knowledge that the learner did not hold a full or provisional licence (section 2(7)). The relevant time is the time of the last act of driving before the person became liable to submit to a test; if that cannot be ascertained, it is the time when the person is first found by a police officer (section 2A). The approved operator is a person of a prescribed class authorised by the Commissioner of Police to administer a test or analysis (section 3(5)). Approved analysts are appointed by the Minister and have prescribed functions and powers (section 3(1)-(4)). The Act also creates a road safety disqualification notice, issued by an approved operator when a police officer believes on reasonable grounds that certain serious offences have been committed (section 18B), leading to immediate disqualification or suspension of a restricted driver licence (section 18B(3)).

The Act applies primarily to any person who drives a motor vehicle on a public street, but its reach extends considerably further. It directly affects learners and their supervisors, as both are deemed to be driving for the purposes of the Act (section 2(6)). The zero-alcohol requirement under section 6(2) applies to persons who do not hold any Australian driver licence, foreign driver licence or international driving permit; persons who hold a learner licence, provisional licence or equivalent; persons whose Australian driver licence requires no alcohol; drivers of prescribed vehicles; persons with specified prior convictions (manslaughter, dangerous driving causing death, reckless driving, negligent driving, certain Traffic Act offences); and drivers under a restricted driver licence issued for a disqualification period (section 6(3)). The police are central actors: they have powers to require breath tests and oral fluid tests from any driver on a public street without suspicion (sections 7A, 7B), to direct drivers to stop, to require breath analysis or oral fluid analysis when alcohol or drugs are suspected (sections 7A(4), 7B(5), 8, 8A), to require blood samples in crash with injury cases (section 10A(1)) or when the driver cannot be identified (section 10A(1A)), and to require blood samples from persons arrested for driving under the influence (section 10A(1B)). Police may enter private premises during a pursuit without warrant if the person flees (section 7AA). Medical practitioners and qualified nurses are involved in taking blood samples (sections 9(3A), 12, 13), but they are not compelled to do so if it would be prejudicial to care or treatment (section 13(1)-(2)). Approved operators and approved analysts have technical roles in conducting and certifying analyses. The Act also affects insurers: certain policy exclusions for drink-driving are voided (section 21). The Monetary Penalties Enforcement Service is involved where infringement notices are issued under section 18A. The Registrar of Motor Vehicles must give effect to disqualifications and cancellations (section 18D(2)). Courts are given specific powers to impose fines, imprisonment, disqualification, special hardship orders (section 19), and to award costs of testing (section 30A). Ultimately, any person who drives or attempts to drive is affected, regardless of licence status, and the broad definition of driving extends liability to supervisors of learner drivers.

The Act imposes a network of duties on drivers and others, balanced by certain rights. The primary duties are to submit to random breath tests and oral fluid tests when required by a police officer on a public street (sections 7A(3), 7B(3)), and to comply with reasonable police requirements including remaining at a specific location and remaining under supervision (section 2B). Once a preliminary test indicates alcohol or drugs, or where a police officer reasonably believes alcohol or an illicit drug is present, the driver becomes liable to submit to a breath analysis (section 7A(4)) or oral fluid analysis (section 7B(5)). In crash situations where injury has occurred or the driver cannot be identified, a police officer may require a blood sample (section 10A(1)-(1A)). A person arrested for an offence under section 4 (driving under the influence) may also be required to provide a blood sample (section 10A(1B)). A person who is directed to submit to breath analysis may instead elect to provide a blood sample, but only if the blood sample can be taken within five hours of the relevant time (section 10(4A)-(4AB)). If the person declines the blood sample, the operator must inform the person of the consequences, and a deemed declination is final (section 10(4AB)). Upon completion of a breath analysis or oral fluid analysis, the approved operator must read over and hand to the person a written statement of the result (section 11(1)-(1A)). The person may then request a blood sample for analysis, and the operator must make arrangements for it to be taken within five hours (section 11(3)). A person who provides a blood sample is entitled to one part of the divided sample (section 13(5B)), and may later request delivery of the sample if not already received (section 13A(3)). The person may also object to the sample being analysed (section 13(6)), though that triggers an offence for objecting without reasonable excuse (section 14(5)). Medical practitioners and nurses have a duty to comply with a police request to take a blood sample from an incapable person unless it would be prejudicial to care (section 12(2)), but they are not otherwise compelled to take samples (section 13(1)). A person who has been given a road safety disqualification notice (section 18B) has a right to appeal to the Magistrates Court on grounds of severe and unusual hardship or special circumstances (section 18E), and the court may cancel the notice (section 18E(4)-(5)). The person may also apply for a special hardship order under section 19, but only in limited circumstances (section 19(1A) excludes many categories). The Act also provides a defence for a supervisor of a learner driver if the supervisor proves lack of consent or lack of knowledge that the learner did not hold a full or provisional licence (section 2(7)). There is a defence for persons charged with failing to submit to a breath analysis if they elected blood and made themselves available but the sample was not taken within five hours (section 14(2A)).

The Act prescribes a detailed penalty regime in the Table to section 17, which sets out minimum and maximum fines, disqualification periods, and maximum imprisonment terms for first and subsequent offences. For a first offence under section 6 (BAC of 0.05 or more but less than 0.1), the penalty is a minimum fine of 2 penalty units, maximum 10, minimum disqualification of 3 months, maximum 12 months, and imprisonment up to 3 months. The penalties escalate with higher concentrations: for 0.15 or more, the minimum fine is 5 penalty units, maximum 30, minimum disqualification 12 months, maximum 36 months, imprisonment up to 12 months. For a subsequent offence within the meaning of section 17(1)(b) (a previous conviction under sections 4, 6, 6A(1), 14(5), or failure to comply with certain requirements), the penalties increase significantly: for the highest band, a minimum fine of 10 penalty units, disqualification minimum 24 months, maximum 72 months, and imprisonment up to 24 months. Offences under section 4 (driving under the influence) and section 14(5) (objecting to blood analysis) carry the same penalties as the highest alcohol band in the Table. For a first offence under section 6A(1) (driving with prescribed illicit drug), the fine is 2-10 penalty units, disqualification 3-12 months, imprisonment 3 months. For a subsequent drug-driving offence, the fine is 4-20 penalty units, disqualification 6-24 months, imprisonment 6 months. Section 17(5) allows a court to impose a lesser fine or disqualification if the offender proves special circumstances. When a court imposes disqualification, it must suspend or cancel any Australian driver licence held as required by section 17 of the Vehicle and Traffic Act 1999, but section 17(3)(b) of that Act does not apply to such suspension or cancellation (section 17(3A)-(3B)). The Act also provides for immediate enforcement through road safety disqualification notices under section 18B. Where a police officer believes on reasonable grounds that a person has committed an offence under section 4, or an alcohol offence with a high reading (0.15 or more for full licence holders, 0.07 or more for others), or a subsequent offence, or has failed or refused to submit to analysis, an approved operator may issue a notice (section 18B(1)). The notice disqualifies the person from driving or, if they hold a restricted driver licence, suspends that licence (section 18B(3)). The disqualification lasts until the charge is determined by a court, or until the expiration of the minimum period set out in the Table that corresponds to the alleged concentration (section 18B(5)). The court must take any period served under the notice into account when fixing a later disqualification (section 18B(6)). A person who drives while disqualified or while their licence is suspended under section 18B faces penalties of up to 40 penalty units and 6 months imprisonment for a first offence, and up to 80 penalty units and 12 months for a subsequent offence, plus further disqualification (section 19A). For other offences under the Act not covered by section 17, the maximum penalty is a fine not exceeding 10 penalty units or imprisonment for 6 months, and the court may also impose disqualification up to 3 years (section 17A). Infringement notices may be issued for prescribed offences, with penalties and disqualification effects as set out in the regulations (section 18A). The court may also award the reasonable costs of testing, analysis, or examination against a convicted defendant (section 30A).

The Act does not operate in isolation; it explicitly references and interacts with several other enactments. The definition of driving and other terms borrow from the Vehicle and Traffic Act 1999 and the Traffic Act 1925. For instance, the term "crash" has the same meaning as in the Road Rules (section 2(1)), and "public street" is defined by reference to the Traffic Act 1925 (section 2(2)). The Act modifies the operation of the Vehicle and Traffic Act 1999 in several ways: section 17(3B) provides that section 17(3) of that Act does not apply to suspensions or cancellations imposed under this Act. Section 19 makes the special hardship order provisions of section 18 of the Vehicle and Traffic Act 1999 applicable to convictions under this Act, but then expressly excludes many categories such as offences committed during a disqualification period, high-range alcohol offences, driving under the influence, and offences by learner or provisional licence holders (section 19(1A)). The Act also interacts with the Monetary Penalties Enforcement Act 2005: infringement notices under section 18A must comply with section 14 of that Act, and if a person is taken to be convicted of an infringement offence under section 20 of that Act, the regulations may specify disqualification and licence consequences (section 18A(3)-(4)). The Criminal Code is relevant: section 8(2) provides that if a police officer reasonably believes that an offence under section 167A of the Criminal Code (dangerous driving causing death or grievous bodily harm) was committed while a motor vehicle was in motion, the driver becomes liable to submit to a breath analysis. Similarly, section 8A(2) applies to oral fluid testing in such circumstances. The Misuse of Drugs Act 2001 is referenced in evidentiary provisions: evidence of a prescribed illicit drug in oral fluid or blood is not admissible in proceedings under the Forensic Procedures Act 2000 or in respect of offences under Division 3 of Part 3 of the Misuse of Drugs Act 2001 (personal use offences), but is admissible for offences under Part 2 (trafficking and manufacture) and Division 4 of Part 3, and may be used in search warrant applications (section 30(2A)). The Poisons Act 1971 provides a defence to the drug-driving offence: a person does not commit an offence if the prescribed illicit drug was obtained and administered in accordance with that Act (section 6A(2)). A similar exemption applies to the prohibition on consuming alcohol or drugs before tests are completed (section 14(9)). The Evidence Act 2001 is expressly excluded: section 29A states that section 177A of the Evidence Act does not apply to certificates or records under Division 1 of Part III. The Liquor Licensing Act 1990 appears in the context of the exemption from the prohibition on consuming liquor in moving motor vehicles: the prohibition does not apply to a motor vehicle being used to operate a passenger transport service if there is a liquor permit in force under Division 3 of Part 2 of the Liquor Licensing Act 1990 (section 7(3A)). The Marine Safety (Misuse of Alcohol) Act 2006 is referenced as the "Related Act" for the purposes of regulation-making powers (section 26(2)). The Acts Interpretation Act 1931 defines "service" for notice provisions (section 29(4)).

The Act has been substantially amended since its original enactment in 1970. Key amendments include: No. 18 of 1974, No. 94 of 1975 (introducing the Table of penalties and significant restructuring), No. 51 of 1977, No. 83 of 1978, No. 15 of 1979, No. 91 of 1982 (broadening police powers for breath analysis following crashes and conduct), No. 29 of 1984, No. 44 of 1991 (introducing blood sample requirements for crash with injury, special hardship order restrictions, and the definition of subsequent offence), No. 68 of 1994, No. 100 of 1995, No. 68 of 1997 (amending the zero-alcohol category for repeat offenders and introducing provisions for alcohol-dependent persons), No. 53 of 1997 (prescribed vehicle definitions), No. 90 of 1999 (replacing many licence-related definitions with references to the Vehicle and Traffic Act 1999), No. 86 of 2000, No. 71 of 2000, No. 18 of 2005 (inserting the drug-driving offence under section 6A and oral fluid testing provisions), No. 28 of 2005 (changing the prescribed concentration from 0.08 to 0.05 in breath and blood), No. 9 of 2008 (trace particle detection tests), No. 68 of 2007 (creating the road safety disqualification notice scheme under section 18B), No. 84 of 2009, No. 38 of 2010 (updating GVM definition), No. 60 of 2011 (passenger transport services reference), No. 38 of 2017 (a major amendment restructured the Act: expanded the definition of driving to include learner supervisor liability, inserted new sections 2A, 2B, 2C, 2D, 3A, 5A, 7AA, 10B, 13C, 21A, 30A, 32, 33, 34, repealed old sections, and substituted many provisions to modernise the regime). The 2017 Act also transitioned the approval of breath analysing instruments from the Governor to the Minister, and provided savings and transitionals for existing analysts and notices (section 34). No. 20 of 2020 inserted section 27A (certificates for oral fluid sample taking). The Act also incorporates numerous minor amendments through schedules of other Acts. The latest consolidation reflects amendments up to 2026.

The Act creates extensive evidentiary provisions that shape litigation. The statutory presumptions in section 23 are central to prosecutions: the concentration in a blood sample is deemed to be the actual concentration at the time of sampling unless the contrary is proved (section 23(1)); the concentration shown by a properly carried out breath analysis is deemed to be the actual concentration at the time of analysis unless the defendant shows on the balance of probabilities that it was not greater than the prescribed concentration (section 23(2)). Where a person becomes liable to a breath analysis, a reading within six hours of the relevant time is deemed to be the concentration at the time of driving unless the defendant shows it was not greater than the prescribed concentration (section 23(4)). For zero-alcohol offences, the presence of any alcohol within six hours raises a presumption that alcohol was present at the time of driving (section 23(5)). A crucial limitation is that a person who has submitted to a breath analysis but declined or refused a request for a blood sample may not rebut these presumptions (section 23(7A)). For drug-driving offences, the presence of a prescribed illicit drug in oral fluid or blood within six hours of the relevant time raises a presumption that it was present at the relevant time (section 23A). The admissibility of evidence is tightly controlled. Evidence of breath analysis results is not admissible unless the statement under section 11 was read over and handed to the person, and if the person requested a blood sample, either the sample was taken within five hours or the person refused after appropriate arrangements (section 24). Certificates from approved operators, approved analysts, qualified persons, and police officers are admissible as prima facie evidence of their contents without calling the signatory as a witness, subject to 14 days' notice (sections 25, 25A, 26, 27, 27A, 28, 28A, 29). A defendant may cross-examine the signatory if called (section 29(2A)). The defence must give 4 days' notice if it intends to rely on a blood analysis not taken under the Act (section 29(3)). The Act specifically excludes the operation of section 177A of the Evidence Act 2001 (section 29A). A certificate of alcohol dependency is evidence of the matters contained (section 29B). In cases where concurrent charges arise from the same driving occasion, convictions under sections 4, 6, 6A, section 41 Traffic Act, or section 53 Vehicle and Traffic Act are treated as a single conviction for penalty purposes (section 20). The Act also limits the use of convictions in other proceedings: a conviction under section 6, 6A or 14 is not admissible as evidence that the person was drunk or under the influence in any other legal proceedings (section 30(1)). Infringement notice proceedings are dealt with under the Monetary Penalties Enforcement Act.

Several provisions in the Act create traps for the unwary. The broad definition of driving in section 2(4) includes having charge of the vehicle, being in control of its systems, attempting to drive, and even doing an act with the intention to drive that is part of an interrupted series of events. This means a person sitting in a stationary vehicle with the engine running could be considered driving. Section 2(5) clarifies that the vehicle may be stationary and the person may have left or been removed. The deemed driving of supervisors of learner drivers (section 2(6)) extends liability to anyone sitting in the vehicle instructing the learner, including driving instructors and supervising parents. The defence in section 2(7) requires the supervisor to prove they did not consent to being in the vehicle or did not know and could not reasonably have known the learner did not hold a full or provisional licence. That is a difficult evidentiary burden.

The five-hour time limit for testing is strict. If a person becomes liable to submit to a breath analysis or blood sample, the analysis or taking of the sample must begin within five hours of the relevant time (sections 10(3), 10(7), 12(4)). If the sample cannot be taken within that window, the liability ceases. However, the person must make themselves available; if they elect blood but the sample is not taken within five hours, that is a reasonable excuse for failing to take a breath analysis (section 14(2AA)(b)). But if a person simply refuses to submit and then argues the time has passed, the refusal itself is an offence regardless of the time limit.

A person who submits to a breath analysis and then declines a request for a blood sample loses the ability to rebut the statutory presumptions about the breath analysis result (section 23(7A)). This is a significant strategic consideration for defendants: if they refuse the blood sample, they cannot argue the breath analysis was inaccurate. Similarly, a person who objects to a blood sample being analysed without reasonable excuse commits an offence (section 14(5)), and the analysis cannot then be used in evidence against them but they have committed a separate offence.

The medical or physical condition excuse for failing to submit to a breath analysis is limited: it is not a reasonable excuse unless the condition also prevents a blood sample from being taken, or if the person elected blood and made themselves available but the sample was not taken within five hours (section 14(2AA)). So a person with a respiratory condition cannot simply refuse a breath analysis without offering a blood sample.

The prohibition on consuming alcohol or drugs before all tests are completed applies not only to persons liable to testing but also to any driver of a vehicle involved in a crash, even if not yet liable to a test (section 14(8)). This is an absolute prohibition: consuming a drink after a crash but before police arrive could be an offence. The only exception is for drugs obtained and administered in accordance with the Poisons Act or otherwise lawfully obtained (section 14(9)).

The road safety disqualification notice under section 18B takes effect immediately upon service, and the disqualification runs until the charge is determined or the minimum period elapses (section 18B(5)). If the person is already subject to a period of disqualification, licence suspension, or demerit point ineligibility, the new period starts when that earlier period ends (section 18C). This can create overlapping disqualifications with no gap. The appeal process against a notice requires 14 days' notice with particulars to the Commissioner of Police and the court registrar (section 18E(2)).

Special hardship orders are unavailable for many offences: they cannot be granted if the offence occurred during a disqualification period or within three years after its end, for high-range alcohol offences (0.15 or more), for driving under the influence, for objecting to blood analysis, for learner or provisional licence holders (except for drug-driving offences), for unlicensed drivers, for prescribed vehicle drivers, or for failing to comply with breath analysis or blood sample requirements (section 19(1A)). This leaves only low-range first offenders with a realistic chance of obtaining a restricted licence.

The prohibition on using blood or oral fluid samples for DNA analysis or any purpose other than road safety offences is strict (section 21A), but intentional or reckless breaches are offences.

For drivers, the most straightforward compliance strategy is never to drive after consuming alcohol or prescribed illicit drugs. Anyone holding a learner licence, provisional licence, or a licence that requires zero alcohol, or anyone driving a prescribed vehicle, must ensure no alcohol is present in the body at all. For full licence holders driving standard vehicles, the legal limit is a blood alcohol concentration of 0.05 or a breath alcohol concentration of 0.05 grams per 210 litres of breath. Given the statutory presumptions that tie readings taken up to six hours after driving back to the time of driving, it is risky to drive even several hours after drinking. If stopped by police on a public street, the driver must comply with a request for a breath test or oral fluid test. Refusal is an offence. If the preliminary test indicates alcohol or an illicit drug, the driver will become liable to a more precise analysis. At the police station or mobile testing unit, the driver must follow the directions of the approved operator. If directed to submit to a breath analysis, the driver may elect to provide a blood sample instead, but only if the blood sample can be taken within five hours of the last driving act. The driver should be aware that declining a blood sample after making the election is treated as a deemed declination with final effect, and the driver may be taken to have refused to submit to the breath analysis. After the analysis, the driver should listen carefully as the result is read over and accept the written statement. If the result shows a concentration above the limit, the driver may immediately request a blood sample for analysis. The operator must arrange for it to be taken within five hours. The driver should ensure that if a blood sample is taken, one part is retained for independent testing. In the case of a crash involving injury, the driver must submit to a blood sample if required. If the driver is incapable of consenting due to injury, a medical practitioner may take a sample on police request unless it would prejudice care. If a road safety disqualification notice is issued, the driver must not drive. An appeal against the notice can be lodged with the Magistrates Court, but only on grounds of severe and unusual hardship or special circumstances, and written notice with particulars must be given at least 14 days before the hearing. For legal practitioners advising clients, the tight five-hour time limit for testing, the restricted availability of special hardship orders, and the inability to rebut presumptions if a blood sample was refused are critical points to raise early. The defence of special circumstances under section 17(5) to reduce the minimum penalty should be considered if there are truly exceptional facts. The careful compliance with certificate notice requirements under section 29 may provide procedural challenges to the prosecution case. For police, compliance with the Act requires strict adherence to the five-hour window for analysis and sampling, proper operation of approved devices, and correct procedures for dividing, labelling, and delivering blood samples. The use of reasonable force when necessary is authorised but must be proportionate. All sample handling must be in accordance with regulations to ensure the evidence is admissible. For health professionals, the Act provides protections from liability for taking samples in good faith and allows refusal if it would be prejudicial to the patient's care.