Part 3Duties of drivers, passengers and pedestrians

Part 3—Duties of drivers, passengers and pedestrians Division 2—Duty to stop and give assistance where person killed or injured 43—Duty to stop, give assistance and present to police where person killed or injured (1) The driver of a vehicle involved in an accident in which a person is killed or injured must— (a) immediately after the accident— (i) stop the vehicle; and (ii) give all possible assistance; and (b) not more than 90 minutes after the accident, present themself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the driver's blood or oral fluid. (a) imprisonment for 5 years; and (b) disqualification from holding or obtaining a driver's licence for such period, being not less than 1 year, as the court thinks fit. (2) If a court convicts a person of an offence against subsection (1)— (a) the disqualification prescribed by that subsection cannot be reduced or mitigated in any way unless, in the case of a first offence, the court is satisfied that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month; (b) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification. (3) It is a defence to a charge of an offence against subsection (1) to prove that— (a) the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances; or (b) in relation only to a failure to comply with subsection (1)(a), the defendant— (i) genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger the defendant's physical safety, or the physical safety of another person; and (ii) at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident; or (c) in relation only to a failure to comply with subsection (1)(b), the defendant— (i) had a reasonable excuse for the failure to comply; and (ii) presented themself to a police officer as soon as possible after the accident. Division 3—Fraudulent use of motor vehicles 44A—Procuring use of vehicle by fraud A person must not procure the use or hire of a motor vehicle by dishonest misrepresentation. Maximum penalty: $300 or imprisonment for not more than six months or both. Division 4—Vehicle misuse etc and careless and dangerous driving 44B—Misuse of motor vehicle (1) For the purposes of this section, a person misuses a motor vehicle if the person— (a) operates a motor vehicle so as to produce sustained wheel spin; or (b) drives a motor vehicle so as to cause engine or tyre noise, or both, that is likely to disturb persons residing or working in the vicinity; or (c) drives a motor vehicle onto an area of park or garden or other road related area so as to break up the ground surface or cause other damage. (2) However, conduct of a type described in subsection (1) does not constitute misuse of a motor vehicle if it occurs in a place with the consent of the owner or occupier of the place or the person who has the care, control and management of the place. (3) A person who misuses a motor vehicle is guilty of an offence. (4) A person who promotes or organises an event involving the misuse of a motor vehicle, knowing that it will involve the misuse of a motor vehicle, is guilty of an offence. (5) If a court convicts a person of an offence against this section, the court must, if satisfied that the offending caused damage to, or the destruction of, any property or damage to an area of park or garden or a road related area, order the convicted person to pay to the owner of the property, or the owner, occupier or person who has the care, control and management of the area, such compensation as the court thinks fit. (6) The power of a court under subsection (5) is in addition to, and does not derogate from, any powers of the court under the Sentencing Act 2017. 44C—Driving ultra high powered vehicle with disabled automated intervention system (1) A person must not drive an ultra high powered vehicle on a road if an automated intervention system of the vehicle is disabled. (2) It is a defence to a charge for an offence against this section if the person charged establishes that— (a) the person— (i) did not cause or contribute to the disablement of the automated intervention system of the ultra high powered vehicle; and (ii) did not know and could not reasonably be expected to have known that the automated intervention system of the ultra high powered vehicle was disabled; and (iii) could not reasonably be expected to have sought to ascertain whether the automated intervention system of the ultra high powered vehicle was disabled; or (b) it was impracticable for the person to drive the ultra high powered vehicle with the automated intervention system enabled. automated intervention system, of a vehicle, means a system or function that identifies a hazardous condition in relation to the vehicle and responds to the condition by overriding the driver's control of the vehicle so as to avoid the condition, and includes, for example, any of the following: (a) anti‑lock braking; (b) automated emergency braking; (c) electronic stability control; (d) traction control, but does not include a warning system; disabled—an automated intervention system of a vehicle is disabled if it is permanently or temporarily destroyed, turned off, attenuated or otherwise rendered ineffective; hazardous condition includes a potentially hazardous condition; ultra high powered vehicle means a motor vehicle of a kind prescribed by the regulations; warning system, of a vehicle, means a system or function that identifies a hazardous condition in relation to the vehicle and alerts the driver to the condition such that the driver can attempt to control the vehicle so as to avoid the condition, and includes, for example, any of the following: (a) a blind spot or lane change warning; (b) a forward collision warning; (c) a lane departure warning. 45—Careless driving (1) A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road. (2) If a court convicts a person of an offence against this section that is an aggravated offence, the following provisions apply: (a) the maximum penalty for the offence is 12 months imprisonment; and (b) subject to subsection (2a), the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 6 months, as the court thinks fit; and (c) the disqualification prescribed by paragraph (b) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence. (2a) Subsection (2)(b) does not apply if— (a) the aggravating circumstances were that the offence caused harm to a person; and (b) the harm so caused fell short of serious harm. (3) For the purposes of this section, an aggravated offence is— (a) an offence that caused harm to a person; or (b) an offence committed in any of the following circumstances: (i) the offender committed the offence in the course of attempting to escape pursuit by a police officer; (ii) the offender was, at the time of the offence, driving a vehicle knowing that the offender was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that the offender's licence was suspended by notice given under this Act; (iii) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (iv) the offender was, at the time of the offence, driving a vehicle in contravention of section 45A, 47 or 47BA; (v) the offender was, at the time of the offence, driving or using a motor vehicle that— (i) was stolen; or (ii) was being driven or used without the consent of the owner of the vehicle, and the offender knew, or was reckless with respect to, that fact; (vi) the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle; (vii) the offender committed the offence while the offender was the holder of— (A) a provisional licence; or (B) a probationary licence; or (C) a learner's permit; or (D) an interstate provisional licence; or (E) an interstate learner's permit, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence; (viii) the offender committed the offence while the offender was not, at the time of the offence, the holder of— (A) a driver's licence; or (B) a learner's permit; or (C) an interstate licence; or (D) an interstate learner's permit; or (E) a foreign licence, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence. (4) If a person is charged with an aggravated offence against this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. (4a) It is a defence to a charge of an offence against this section for the defendant to prove that the defendant was, at the time of the offence— (a) carrying out duties as an emergency worker; and (b) acting in accordance with the directions of the defendant's employing authority; and (c) acting reasonably in the circumstances as the defendant believed them to be. emergency worker means a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section; employing authority means— (a) in relation to a police officer—the Commissioner of Police; or (b) in relation to a person who is an emergency worker as defined by the regulations for the purposes of this section—the person defined by the regulations as the employing authority for that person; harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935; serious harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935. 45A—Excessive speed (1) A person who drives a vehicle at a speed exceeding, by 45 kilometres an hour or more, a relevant speed limit is guilty of an offence. (a) in the case of a first offence— (i) if the offence is a basic offence—a fine of not less than $3 000 and not more than $5 000; or (ii) if the offence is an aggravated offence—2 years imprisonment; (b) in the case of a subsequent offence—2 years imprisonment. (3) If a court convicts a person of an offence against subsection (1), the following provisions apply: (i) in the case of a first offence— (A) if the offence is a basic offence—for such period, being not less than 6 months, as the court thinks fit; or (B) if the offence is an aggravated offence—for such period, being not less than 2 years, as the court thinks fit; (ii) in the case of a subsequent offence—for such period, being not less than 2 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence; (c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification. (4) In determining whether an offence is a first or subsequent offence for the purposes of this section— (a) any previous offence against subsection (1); and (b) any previous offence against section 46 (whether committed before or after the commencement of this section), for which the defendant has been convicted or that the defendant has expiated will be taken into account, but only if the previous offence was committed or alleged to have been committed within the period of 5 years immediately preceding the date on which the offence under consideration was allegedly committed. (4a) For the purposes of this section, an aggravated offence is— (a) an offence that caused harm to a person; or (b) an offence committed in any of the following circumstances: (i) the offender committed the offence in the course of attempting to escape pursuit by a police officer; (ii) the offender was, at the time of the offence, driving a vehicle knowing that the offender was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver's licence or that the offender's licence was suspended by notice given under this Act; (iii) the offender committed the offence while there was present in the offender's blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood; (iv) the offender was, at the time of the offence, driving a vehicle in contravention of section 47 or 47BA; (v) the offender was, at the time of the offence, driving or using a motor vehicle that— (A) was stolen; or (B) was being driven or used without the consent of the owner of the vehicle, and the offender knew, or was reckless with respect to, that fact; (vi) the offender committed the offence knowing that there were 1 or more passengers in or on the motor vehicle; (vii) the offender committed the offence while the offender was the holder of— (A) a provisional licence; or (B) a probationary licence; or (C) a learner's permit; or (D) an interstate provisional licence; or (E) an interstate learner's permit, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence; (viii) the offender committed the offence while the offender was not, at the time of the offence, the holder of— (A) a driver's licence; or (B) a learner's permit; or (C) an interstate licence; or (D) an interstate learner's permit; or (E) a foreign licence, (as defined in the Motor Vehicles Act 1959) authorising the holder to drive a motor vehicle of the class driven by the offender at the time of the offence. (4b) If a person is charged with an aggravated offence against subsection (1), the circumstances alleged to aggravate the offence must be stated in the instrument of charge. (5) This section is in addition to, and does not derogate from, any other provision relating to speed limits contained in this or any other Act or in any regulation, rule or by-law made under this or any other Act. basic offence means an offence against subsection (1) that is not an aggravated offence; harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935; relevant speed limit, for a person who drives a motor vehicle, means a speed limit that applies to the driver under— (a) this Act (other than section 82 or 83); or (b) the Motor Vehicles Act 1959. 45B—Power of police to impose licence disqualification or suspension (1) Subject to this section, a police officer may give a person a notice of licence disqualification or suspension that includes the prescribed particulars if— (a) the police officer reasonably believes that the person has committed an offence against section 45A; or (b) the person has been given an expiation notice for an offence against section 79B constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45A. (2) If a person is given a notice of licence disqualification or suspension under subsection (1)— (a) in the case of a person who does not hold a driver's licence—the person is disqualified from holding or obtaining a driver's licence for the relevant period; or (b) in the case of a person who holds a driver's licence—the person's driver's licence is suspended for the relevant period. (3) The Commissioner of Police must ensure that prescribed particulars of a notice of licence disqualification or suspension given to a person under this section are forwarded to the Registrar of Motor Vehicles. (4) The Registrar of Motor Vehicles must, on receiving particulars of a notice of licence disqualification or suspension from the Commissioner of Police, send, by post, a notice to the person of the name and address specified by the Commissioner containing the prescribed particulars of the notice of licence disqualification or suspension. (5) The operation of a notice of licence disqualification or suspension is not affected by any failure to comply with subsection (4). (7) If— (a) a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of licence disqualification or suspension under this section; and (b) a court convicts the person of the offence in relation to which the notice was given or another offence arising out of the same course of conduct; and (c) a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence, (d) the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence, the disqualification operates to cancel the licence from the commencement of that period); and (e) despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may impose a period that is less than the mandatory minimum period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum and the period that has applied as a result of the notice). (8) Subject to subsection (9), no compensation is payable by the Crown or a police officer in respect of the exercise, or purported exercise, of powers under this section. (9) Subsection (8) does not protect a police officer from liability in respect of the exercise, or purported exercise, of powers otherwise than in good faith. (10) For the purposes of this section— (i) in the case of a notice given to a person who has been given an expiation notice for an offence against section 79B—28 days after the notice of licence disqualification or suspension is given to the person; or (ii) in any other case—at the time at which the person is given the notice of licence disqualification or suspension or, if a police officer referred to in subsection (1) is satisfied that, in the circumstances, it would be appropriate to postpone the commencement of the relevant period and the notice indicates that the commencement is to be postponed, 48 hours after the time at which the person is given the notice; (i) when proceedings for the offence to which the notice relates are determined by a court or are withdrawn or otherwise discontinued; or (ii) in any event—at the end of 6 months from the commencement of the relevant period. (11) A regulation made before the commencement of this subsection prescribing the form of a notice of licence disqualification or suspension under this section or varying such a form is declared to be, and to have always been, valid. (12) A notice given to a person by a police officer before the commencement of this subsection that purported to be a notice of licence disqualification or suspension under this section is declared to be, and to have always been, valid if the notice includes the prescribed particulars and was given in the circumstances specified in subsection (1). (13) If the Commissioner of Police is satisfied that a notice of licence disqualification or suspension under this section should not have been given because— (14) A withdrawal referred to in subsection (13) is effected by giving notice of the withdrawal, in a manner and form determined by the Commissioner, to the person to whom the notice of licence disqualification or suspension was given. (15) The notice of withdrawal must specify the reason for withdrawal. (16) If a notice of licence disqualification or suspension under this section is withdrawn, the Commissioner of Police may, if satisfied that there are proper grounds to give a fresh notice of licence disqualification or suspension to any person, give such a notice. 45C—Speed and gear restrictions for trucks and buses on prescribed roads (1) A person must not drive a truck or bus on a prescribed road at a speed exceeding a relevant speed limit by 10 kilometres an hour or more. (a) for a first offence—$5 000; (b) for a subsequent offence—imprisonment for 2 years. (2) A person driving a truck or bus on a length of prescribed road to which a trucks and buses low gear sign applies must drive the truck or bus in a gear that is low enough to enable the vehicle to be driven safely on that length of road without the use of a primary brake. (a) for a first offence—$5 000; (b) for a subsequent offence—imprisonment for 2 years. (3) If a court convicts a person of an offence against this section, the following provisions apply: (a) the court must order that the person is disqualified from holding or obtaining a driver's licence for the following period: (i) for a first offence—such period, being not less than 6 months, as the court thinks fit; (ii) for a second offence—such period, being not less than 12 months, as the court thinks fit; (iii) for a subsequent offence—such period, being not less than 3 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence; (c) if the person is the holder of a driver's licence—the disqualification operates to suspend the licence as from the commencement of the period of disqualification. (4) In determining whether an offence is a first, second or subsequent offence for the purposes of this section, any previous offence against this section for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 5 years immediately preceding the date on which the offence under consideration was committed. (5) Subsection (1) is in addition to, and does not derogate from, any other provision relating to speed limits contained in this or any other Act or in any regulation, rule or by-law made under this or any other Act. (6) For the purposes of this section, a trucks and buses low gear sign applies to a length of road if it so applies for the purposes of the Australian Road Rules. bus means a vehicle that is a bus for the purposes of the Australian Road Rules; length, of road, means an area of road that is a length, of road, for the purposes of the Australian Road Rules; prescribed road means a portion of RN 04500 South Eastern Freeway, or adjacent land, defined by the regulations for the purposes of this section; primary brake means the footbrake, or other brake, fitted to a truck or bus that is normally used to slow or stop the vehicle; relevant speed limit, for a person who drives a truck or bus, means a speed limit that applies to the driver under this Act (other than section 82 or 83 of this Act) or the Motor Vehicles Act 1959; truck means a vehicle that is a truck for the purposes of the Australian Road Rules; trucks and buses low gear sign means a sign that is a trucks and buses low gear sign for the purposes of the Australian Road Rules. 45D—Power of police to impose licence disqualification or suspension for section 45C etc offences (1) This section applies to the following offences: (a) an offence against section 45C that is a second or subsequent offence; (b) an offence against section 79B constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of an offence against section 45C(1) (a section 79B offence) that is a second or subsequent offence. (1a) In determining whether an offence to which this section applies is a second or subsequent offence for the purposes of this section— (a) in the case of an offence against section 45C, any previous offence against section 45C for which the person has been convicted or that the person has expiated will be taken into account; and (b) in the case of a section 79B offence, any previous section 79B offence for which the person has been convicted or that the person has expiated will be taken into account, but only if the previous offence was committed or, in the case of an offence that has been expiated, was alleged to have been committed, by the person within the period of 5 years immediately preceding the date on which the offence under consideration was committed. (2) Subject to this section— (a) if a person is given an expiation notice for an offence to which this section applies, a police officer may give the person a notice of licence disqualification or suspension that includes the prescribed particulars; or (b) if a police officer reasonably believes that a person has committed an offence to which this section applies, the police officer (or another police officer authorised to do so on behalf of that officer) may give the person such a notice. (3) The notice must specify the offence to which the notice relates. (4) If a person is given a notice of licence disqualification or suspension under this section— (a) in the case of a person who does not hold a driver's licence—the person is disqualified from holding or obtaining a driver's licence for the relevant period; or (b) in the case of a person who holds a driver's licence—the person's driver's licence is suspended for the relevant period. (5) If a person is given a notice of licence disqualification or suspension under this section— (a) the Commissioner of Police must ensure that prescribed particulars of the notice are forwarded to the Registrar of Motor Vehicles; and (b) the Registrar of Motor Vehicles must, on receiving those particulars, send, by post, a notice to the person of the name and address specified by the Commissioner containing the prescribed particulars of the notice of licence disqualification or suspension (though the operation of the notice is not affected by any failure to comply with this paragraph), and if such a notice of licence disqualification or suspension is subsequently withdrawn, the Commissioner must ensure that notice of the withdrawal (specifying the reason for the withdrawal) is forwarded to the Registrar. (6) If a person is given a notice of licence disqualification or suspension under this section but is not given an expiation notice for the offence to which the notice relates or another offence to which this section applies arising out of the same course of conduct (or such an expiation notice is withdrawn or the person elects to be prosecuted in accordance with the Expiation of Offences Act 1996), the Commissioner of Police must ensure— (a) that a determination is made, within a reasonable time, as to whether to charge the person with an offence to which this section applies or give the person an expiation notice in respect of such an offence; and (b) if a determination is made that the person should not be charged with, or given an expiation notice in respect of, any offence to which this section applies, that— (i) the person is given, or sent by post, written notice of that determination (which notice should include any prescribed particulars relating to the effect of the determination on the notice of licence disqualification or suspension); and (ii) written notice of the determination is forwarded to the Registrar of Motor Vehicles, but— (c) the laying of charges against a person, or the giving of an expiation notice, is not prevented by a failure to comply with this subsection in relation to the person or by the making of a determination referred to in this subsection or the notification of such a determination; and (d) subject to the making of an order of the Magistrate's Court under section 45E(2)(b), the operation of the notice of licence disqualification or suspension is not affected by any failure to comply with this subsection. (7) If a person who is given a notice of licence disqualification or suspension under this section is charged with an offence, or given an expiation notice in respect of an offence, that is not the offence specified in the notice but is instead another offence to which this section applies arising out of the same course of conduct, that offence will then be taken to be the offence to which the notice relates. (8) If— (a) a period of licence disqualification or suspension has applied to a person as a result of the person having been given a notice of licence disqualification or suspension under this section; and (b) a court convicts the person of the offence to which the notice relates or another offence arising out of the same course of conduct; and (c) a mandatory minimum period of disqualification would (apart from this subsection) be required to be imposed for the offence, (d) the court must order that the person be disqualified from holding or obtaining a driver's licence for a period determined by the court (and if the person is the holder of a driver's licence and the mandatory minimum period of disqualification required to be imposed for the offence for which the person was convicted operates to cancel such a licence, the period of disqualification ordered by the court under this subsection operates to cancel the person's licence from the commencement of that period); and (e) despite any other provision of this or any other Act, the court must, in determining the period, take into account the period of licence disqualification or suspension that has applied to the person as a result of the notice and may for that purpose— (i) if the relevant period of licence disqualification or suspension under the notice has not ended, order that the period imposed be taken to have commenced on the day on which the relevant period commenced (provided that the period imposed is not less than the mandatory minimum period of disqualification); or (ii) if the relevant period of licence disqualification or suspension under the notice has ended, impose a period that is less than the mandatory period of disqualification (provided that the period imposed is not less than the difference between the mandatory minimum period of disqualification and the period that has applied as a result of the notice), and if the person is the holder of a driver's licence and the mandatory minimum period of disqualification required to be imposed operates to cancel the licence, the licence will be taken to have been cancelled— (iii) where subparagraph (i) applies—from the day on which the order of the court is made; or (iv) where subparagraph (ii) applies—from the commencement of the period of disqualification ordered by the court. (9) If the Commissioner of Police is satisfied that a notice of licence disqualification or suspension under this section should not have been given because— (10) A withdrawal referred to in subsection (9) is effected by giving notice of the withdrawal, in a manner and form determined by the Commissioner, to the person to whom the notice of licence disqualification or suspension was given. (11) The notice of withdrawal must specify the reason for withdrawal. (12) If a notice of licence disqualification or suspension under this section is withdrawn, the Commissioner of Police may, if satisfied that there are proper grounds to give a fresh notice of licence disqualification or suspension to any person, authorise the giving of such a notice (provided that the relevant period for the fresh notice must, if it is given to the same person as was given the withdrawn notice, be reduced by the period for which the withdrawn notice was (or purported to be) in operation). (13) Subject to subsection (14), no compensation is payable by the Crown or a police officer in respect of the exercise, or purported exercise, of powers under this section. (14) Subsection (13) does not protect a police officer from liability in respect of the exercise, or purported exercise, of powers otherwise than in good faith. (15) For the purposes of this section— (i) in the case of a notice of licence disqualification or suspension under this section for an offence against section 45C—at the time at which the person is given the notice of licence disqualification or suspension or, if a police officer referred to in subsection (2) is satisfied that, in the circumstances, it would be appropriate to postpone the commencement of the relevant period and the notice indicates that the commencement is to be postponed, 48 hours after the time at which the person is given the notice; or (ii) in the case of a notice of licence disqualification or suspension under this section for a section 79B offence—28 days after the notice of licence disqualification or suspension is given to the person; (i) if the Magistrates Court, on application under section 45E, makes an order that the person given the notice is not disqualified, or that the driver's licence held by the person is not suspended, by the notice; or (ii) if the person given the notice is notified in writing by or on behalf of the Commissioner of Police (whether that notification is given personally or by post) that the person— (A) is not to be charged with any offence to which this section applies arising out of the course of conduct to which the notice of licence disqualification or suspension relates; and (B) is not to be given an expiation notice in respect of such an offence; or (iii) if proceedings for the offence to which the notice relates are determined by a court or are withdrawn or otherwise discontinued; or (iv) if the person given the notice is notified in accordance with subsection (10) that the notice has been withdrawn; or (v) in any event, at the end of 6 months from the commencement of the relevant period. (16) The Commissioner of Police must establish procedures to be followed by police officers giving notices of licence disqualification or suspension under this section for the purpose of determining whether the commencement of the relevant period should be postponed under subsection (15)(a)(i). 45E—Application to Court to have disqualification or suspension under section 45D lifted (1) If a person is given a notice of licence disqualification or suspension under section 45D (or is sent particulars of such a notice by the Registrar of Motor Vehicles) but is not given an expiation notice for an offence to which section 45D applies (or such an expiation notice is withdrawn or the person elects to be prosecuted in accordance with the Expiation of Offences Act 1996), the person may apply to the Magistrates Court for an order that the person is not disqualified, or the person's driver's licence is not suspended, by the notice. (2) The Magistrates Court may, on an application under subsection (1), make an order that the person is not disqualified, or the person's driver's licence is not suspended, by the notice if— (a) the Court is satisfied, on the basis of oral evidence given on oath by the applicant, that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence and the evidence before the Court does not suggest that the applicant may be guilty of another offence to which section 45D applies; or (b) the Court is satisfied that the person has not been charged with any offence to which section 45D applies and that the prosecution authorities have had a reasonable time, in the circumstances, within which to make a determination as to the laying of charges against the person. (3) The application must be commenced by lodging written application with the Magistrates Court, in the form prescribed by rules of the Court, setting out the grounds on which the application is made and particulars of the evidence that will be relied on by the applicant. (4) The Commissioner of Police— (a) must be served, by an applicant for an order under this section, with a copy of the application as soon as practicable after the application is made; and (b) is a party to the application; and (c) may (but is not required to) appear at the hearing represented by legal counsel or a police officer. (5) Any legal counsel or police officer representing the Commissioner of Police at the hearing may make submissions in relation to the application but is not entitled to cross-examine the applicant. (6) If the Commissioner of Police does not appear at the hearing, the clerk of the Court must notify the Commissioner, in writing, of the date on which the application was determined and the nature and effect of any order made in relation to the application. 46—Reckless and dangerous driving (1) A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to any person. (a) in the case of a first offence—$5 000 or imprisonment for 2 years; (b) in the case of a subsequent offence—imprisonment for 3 years. (2) In considering whether an offence has been committed under this section, the court must have regard to— (a) the nature, condition and use of the road on which the offence is alleged to have been committed; and (b) the amount of traffic on the road at the time of the offence; and (c) the amount of traffic which might reasonably be expected to enter the road from other roads and places; and (d) all other relevant circumstances, whether of the same nature as those mentioned or not. (3) If a court convicts a person of an offence against subsection (1), the following provisions apply: (i) in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month. (4) In determining whether an offence is a first or subsequent offence for the purposes of this section, only a previous offence against subsection (1) for which the defendant has been convicted that was committed within the period of five years immediately preceding the commission of the offence under consideration will be taken into account. (5) It is a defence to a charge of an offence against this section for the defendant to prove that the defendant was, at the time of the offence— (a) carrying out duties as an emergency worker; and (b) acting in accordance with the directions of the defendant's employing authority; and (c) acting reasonably in the circumstances as the defendant believed them to be. emergency worker means a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section; employing authority means— (a) in relation to a police officer—the Commissioner of Police; or (b) in relation to a person who is an emergency worker as defined by the regulations for the purposes of this section—the person defined by the regulations as the employing authority for that person. Division 5—Drink driving and drug driving 47—Driving under the influence (a) drive a vehicle; or (b) attempt to put a vehicle in motion, while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle. (a) if the vehicle concerned was a motor vehicle— (i) for a first offence— (A) a fine of not less than $1 100 and not more than $1 600; or (B) imprisonment for not more than 3 months; and (ii) for a subsequent offence— (A) a fine of not less than $1 900 and not more than $2 900; or (B) imprisonment for not more than 6 months; (b) if the vehicle concerned was not a motor vehicle—$500. (1a) If a person engages in conduct involving a motor vehicle that constitutes an offence against subsection (1) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (1). (1b) If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established. (2) For the purposes of subsection (1), a person is incapable of exercising effective control of a vehicle if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired. This subsection does not restrict the meaning of the words "incapable of exercising effective control of a vehicle". (3) If a court convicts a person of an offence against this section in which the vehicle concerned was a motor vehicle, the following provisions apply: (i) in the case of a first offence—for such period, being not less than twelve months as the court thinks fit; or (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month; (d) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification; (e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section. (4) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed. 47A—Interpretation (1) In this Act— alcotest means a test by means of an apparatus of a kind approved by the Governor for the conduct of alcotests; analyst means— (a) a person appointed by the Minister as an analyst for the purposes of this Act; or (b) a person holding an office of a class approved by the Minister for the purposes of this Act; approved blood test kit means a kit of a kind declared by the Governor to be an approved blood test kit; breath analysing instrument means an apparatus of a kind approved as a breath analysing instrument by the Governor; breath analysis means an analysis of breath by a breath analysing instrument; category 1 offence means an offence against section 47B(1) involving a concentration of alcohol of less than .08 grams in 100 millilitres of blood; category 2 offence means an offence against section 47B(1) or (1a) involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood; category 3 offence means an offence against section 47B(1) or (1a) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood; driver testing station means a driver testing station established under section 47DA; drug screening test means a test by means of an apparatus of a kind approved by the Governor for the conduct of drug screening tests; gross vehicle mass, in relation to a vehicle, means— (a) if the vehicle is registered in this State and a gross vehicle mass limit has been fixed in respect of that vehicle by the Registrar of Motor Vehicles—the mass by reference to which that limit has been fixed; (b) if the vehicle is registered in another State or a Territory of the Commonwealth and a limitation or restriction on the mass of the vehicle has been imposed by or under the law of that State or Territory—the mass by reference to which that limitation or restriction has been imposed; (c) in any other case—the unladen mass of the vehicle; oral fluid includes saliva; oral fluid analysis means the analysis of a person's oral fluid to determine whether a prescribed drug is present in the oral fluid; prescribed circumstances—a requirement to submit to an alcotest, breath analysis or drug screening test under section 47E or 47EAA, or a direction to stop a vehicle for the purpose of making such a requirement, is made or given in prescribed circumstances if the police officer who makes the requirement or gives the direction believes on reasonable grounds that the person of whom the requirement is, or is to be, made has, within the preceding 8 hours— (a) committed an offence of a prescribed class; or (b) behaved in a manner that indicates that the person's ability to drive a motor vehicle is impaired; or (c) been involved as a driver in an accident; prescribed concentration of alcohol means— (a) in relation to a person who is not authorised under the Motor Vehicles Act 1959 to drive the vehicle—any concentration of alcohol in the blood; (ab) in relation to a person who is driving a prescribed vehicle—any concentration of alcohol in the blood; (b) in relation to any other person—a concentration of .05 grams or more of alcohol in 100 millilitres of blood; prescribed drug means a substance declared by the regulations to be a prescribed drug; prescribed vehicle means— (a) a vehicle with a gross vehicle mass exceeding 15 tonnes; or (b) a prime mover with an unladen mass exceeding 4 tonnes; or (c) a bus designed to carry more than 12 persons (including the driver); or (d) a motor vehicle that is— (i) designed for the principal purpose of carrying passengers; and (ii) designed to carry more than 8 persons, but not more than 12 persons, (including the driver); and (iii) used regularly for the purpose of carrying passengers for hire or for a business or community purpose; or (e) a vehicle that is being used for the purpose of carrying passengers for hire; or (f) a vehicle that— (i) is used to transport dangerous substances within the meaning of the Dangerous Substances Act 1979 or has such substances aboard; and (ii) is required under that Act to be marked with a label. (2) For the purposes of this Act, a person acts as a qualified supervising driver for the holder of a permit or licence if the person would, for the purposes of the Motor Vehicles Act 1959, be taken to be acting as a qualified supervising driver for the holder of a permit or licence (see section 72A of that Act). (2a) For the purposes of this Act, a police officer exercises random testing powers if, in accordance with section 47E or 47EAA— (a) the police officer requires a person to submit to an alcotest, breath analysis or drug screening test or directs a person driving a motor vehicle to stop the vehicle for the purpose of requiring a person to submit to an alcotest or breath analysis; and (b) the requirement is made, or the direction is given, otherwise than in prescribed circumstances. (3) For the purposes of section 47(4), 47B(4), 47B(6), 47BA(5), 47BA(7), 47E(7), 47EAA(17) and 47I(14b), the prescribed period is— (a) in the case of a previous offence that is a category 1 offence—3 years; (b) in any other case—5 years. 47B—Driving while having prescribed concentration of alcohol in blood (a) drive a motor vehicle; or (b) attempt to put a motor vehicle in motion, while there is present in the person's blood the prescribed concentration of alcohol as defined in section 47A. (a) for a first offence— (ii) being a category 2 offence—a fine of not less than $900 and not more than $1 300; (iii) being a category 3 offence—a fine of not less than $1 100 and not more than $1 600; (b) for a second offence— (ii) being a category 2 offence—a fine of not less than $1 100 and not more than $1 600; (iii) being a category 3 offence—a fine of not less than $1 600 and not more than $2 400; (c) for a third or subsequent offence— (ii) being a category 2 offence—a fine of not less than $1 500 and not more than $2 200; (iii) being a category 3 offence—a fine of not less than $1 900 and not more than $2 900. (1a) If a person engages in conduct involving a motor vehicle that constitutes an offence against subsection (1) (other than a category 1 offence) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (1). (1b) If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established. (3) If a court convicts a person of an offence against this section, the following provisions apply: (i) in the case of a first offence— (AA) being a category 1 offence—for such period, being not less than 3 months, as the court thinks fit; (A) being a category 2 offence—for such period, being not less than 6 months, as the court thinks fit; (B) being a category 3 offence—for such period, being not less than 12 months, as the court thinks fit; (ii) in the case of a second offence— (A) being a category 1 offence—for such period, being not less than 6 months, as the court thinks fit; (B) being a category 2 offence—for such period, being not less than 12 months, as the court thinks fit; (iii) in the case of a third offence— (A) being a category 1 offence—for such period, being not less than 9 months, as the court thinks fit; (B) being a category 2 offence—for such period, being not less than 2 years, as the court thinks fit; (iv) in the case of a subsequent offence— (A) being a category 1 offence—for such period, being not less than 12 months, as the court thinks fit; (B) being a category 2 offence—for such period, being not less than 2 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month; (d) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification; (e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section. (4) In determining whether an offence is a first, second, third or subsequent offence for the purposes of this section (other than subsection (5)), any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed. (5) If— (a) a person aged 16 years or more is alleged to have committed a category 1 offence; and (b) the information available to members of SA Police at the relevant time for the alleged offence indicates that the person has not committed or allegedly committed another drink driving offence or drug driving offence within the prescribed period immediately preceding the date on which the offence under consideration was allegedly committed, the person cannot be prosecuted for that offence unless the person has first been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence. For the avoidance of doubt, if at the relevant time for an alleged offence (the subject offence), the information available indicated that the person had allegedly committed another offence but, at some later time, the expiation notice for that other offence is withdrawn or proceedings for that other offence are discontinued, that does not affect the prosecution of the person for the subject offence, and does not mean that the person should have been given an expiation notice for the subject offence. relevant time for an alleged offence means the time at which SA Police is deciding whether to give a person an expiation notice for the offence or prosecute the person for the offence. 47BA—Driving with prescribed drug in oral fluid or blood (a) drive a motor vehicle; or (b) attempt to put a motor vehicle in motion, while a prescribed drug is present in the person's oral fluid or blood. (a) for a first offence—a fine of not less than $900 and not more than $1 300; (b) for a second offence—a fine of not less than $1 100 and not more than $1 600; (c) for a third or subsequent offence—a fine of not less than $1 500 and not more than $2 200. (1a) If a person engages in conduct involving a motor vehicle that constitutes an offence against subsection (1) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (1). (1b) If a person is charged with an offence against subsection (1a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (1) if the court is satisfied that an offence against subsection (1) has been so established. (2) Subject to subsection (3), it is a defence to a charge of an offence against this section if the defendant proves that the defendant did not knowingly consume the prescribed drug present in the defendant's oral fluid or blood. (3) Subsection (2) does not apply if the defendant consumed the prescribed drug believing that the defendant was consuming a substance unlawfully but was mistaken as to, unaware of or indifferent to the identity of the prescribed drug. (4) If a court convicts a person of an offence against this section, the following provisions apply: (i) in the case of a first offence—for such period, being not less than 6 months, as the court thinks fit; (ii) in the case of a second offence—for such period, being not less than 12 months, as the court thinks fit; (iii) in the case of a third offence—for such period, being not less than 2 years, as the court thinks fit; (iv) in the case of a subsequent offence—for such period, being not less than 3 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than 1 month; (c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification; (d) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section. (5) In determining whether an offence is a first, second, third or subsequent offence for the purposes of this section (other than subsection (6)), any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed. (6) If— (a) a person aged 16 years or more is alleged to have committed an offence against this section; and (b) the information available to members of SA Police at the relevant time for the alleged offence indicates that the person has not committed or allegedly committed another drink driving offence or drug driving offence within the prescribed period immediately preceding the date on which the offence under consideration was allegedly committed, the person cannot be prosecuted for that offence unless the person has first been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence. For the avoidance of doubt, if at the relevant time for an alleged offence (the subject offence), the information available indicated that the person had allegedly committed another offence but, at some later time, the expiation notice for that other offence is withdrawn or proceedings for that other offence are discontinued, that does not affect the prosecution of the person for the subject offence, and does not mean that the person should have been given an expiation notice for the subject offence. relevant time for an alleged offence means the time at which SA Police is deciding whether to give a person an expiation notice for the offence or prosecute the person for the offence. 47C—Relation of conviction under section 47B or 47BA to contracts of insurance etc (1) A person is not, by reason only of having been convicted or found guilty of an offence against section 47B(1), 47B(1a), 47BA(1) or 47BA(1a) or having expiated such an offence, to be taken, for the purposes of any law, or of any contract, agreement, policy of insurance or other document, to have been under the influence of, or in any way affected by, intoxicating liquor or a prescribed drug, or incapable of driving, or of exercising effective control of, a motor vehicle, at the time of the commission of that offence or alleged offence. (2) The provisions of subsection (1) have effect despite anything contained in any law, or any covenant, term, condition or provision of, or contained in, any contract, agreement, policy of insurance or other document, and a covenant, term, condition or provision purporting to exclude, limit, modify or restrict the operation of that subsection is void. (3) Any covenant, term, condition or provision contained in a contract, policy of insurance or other document purporting to exclude or limit the liability of an insurer in the event of the owner or driver of a motor vehicle being convicted or found guilty of, or expiating, an offence against section 47B(1), 47B(1a), 47BA(1) or 47BA(1a) is void. 47D—Payment of costs incidental to apprehension etc (1) The court by which a person is found guilty of a prescribed offence on the information of a police officer may, in addition to imposing any other penalty, make, on the application of the informant, an order requiring the defendant to pay to the informant (or to a person or body nominated by the informant) a reasonable sum to cover the cost of all or any of the following: (a) apprehending the defendant; (b) conveying the defendant to a police station; (c) keeping the defendant in custody until trial; (d) medically examining the defendant; (e) facilitating the taking of a sample of the defendant's oral fluid and providing for the presence of a police officer; (f) facilitating the taking of a sample of the defendant's blood and providing for the presence of a police officer; (g) any oral fluid analysis of a sample taken of the defendant's oral fluid; (h) any blood test of a sample taken of the defendant's blood. (2) Any sum of money received by the informant in consequence of an order under subsection (1) must be paid into the Consolidated Account. prescribed offence means an offence against— (a) section 47(1) or (1a); or (b) section 47B(1) or (1a); or (c) section 47BA(1) or (1a); or (d) section 47E(3) or (3a); or (e) section 47EAA(9) or (9a); or (f) section 47I(7) or (14). 47DA—Driver testing stations (1) A driver testing station may be established by police officers at any time on or in the vicinity of any road for the purpose of enabling screening tests to be conducted in relation to persons driving motor vehicles on the road. (2) A driver testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the screening tests to be made in quick succession. (3) If a driver testing station is established in the vicinity of an event being held outside Metropolitan Adelaide for the purpose of enabling screening tests to be conducted in relation to persons who have attended the event, signs advising of the establishment of the driver testing station must be displayed in positions where people arriving at the event are likely to see them (however a prosecution for an offence will not fail because of any non-compliance with this subsection). (4) In subsection (3)— Metropolitan Adelaide has the same meaning as in the Development Act 1993; screening test means an alcotest or drug screening test. 47E—Police may require alcotest or breath analysis (1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person— (a) is driving, or has driven, a motor vehicle; or (b) is attempting, or has attempted, to put a motor vehicle in motion; or (c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence, the police officer may require the person to submit to an alcotest or a breath analysis, or both. (2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis. (2a) A person must forthwith comply with a direction under subsection (2). Maximum penalty: $2 900. (2ab) A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the person. (2b) Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement. (2d) The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis. (2e) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act. (3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer. (a) for a first offence—a fine of not less than $1 100 and not more than $1 600; (b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900. (3a) If— (a) a person has engaged in conduct of a kind described in subsection (1)(a), (b) or (c) involving a motor vehicle; and (b) such conduct occurred while a child under the age of 16 years was present in or on that vehicle; and (c) the person refuses or fails to comply with a direction of a police officer (given in relation to such conduct) in contravention of subsection (3), the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (3). (3b) If a person is charged with an offence against subsection (3a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (3) if the court is satisfied that an offence against subsection (3) has been so established. (4) It is a defence to a prosecution under subsection (3) or (3a) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person's right to request the taking of a blood sample under subsection (4a); or (b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (4a) If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person's blood be taken by a medical practitioner or registered nurse, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood— (a) by a medical practitioner or registered nurse nominated by the person; or (i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner or registered nurse nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner or registered nurse, by any medical practitioner or registered nurse who is available to take the sample. (5) No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that— (a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against themself; or (b) the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given. (5a) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless— (a) a sample of the person's blood was taken in accordance with subsection (4a); or (b) the person made a request as referred to in subsection (4a), but— (i) a police officer failed to facilitate the taking of a sample of the person's blood as required by that subsection; or (ii) a medical practitioner or registered nurse was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of the person's blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (6) If a court convicts a person of an offence against subsection (3) or (3a), the following provisions apply: (i) in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month; (d) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification; (e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section. (7) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed. (7a) If a person— (a) refuses or fails to comply with a direction under this section; or (b) submits to an alcotest and the alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person, there will be reasonable ground to suspect that the prescribed concentration of alcohol is present in the person's blood for the purposes of the exercise of any power conferred on a police officer (including a power of arrest) to prevent the person committing an offence by driving a vehicle in contravention of this Division. (7b) Subsection (7a) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act. (8) The Commissioner of Police must, in the Commissioner's annual report to the Minister responsible for the administration of the Police Act 1998, include the numbers of drivers required to submit to an alcotest in the course of the exercise of random testing powers (otherwise than at breath testing stations established in accordance with section 47DA). 47EAA—Police may require drug screening test, oral fluid analysis and blood test (1) Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test. (2) If— (a) a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or (b) a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E that was made in prescribed circumstances, a police officer may require the person to submit to an oral fluid analysis or a blood test. (2a) If a person submits to an oral fluid analysis in compliance with a requirement made under subsection (2) but the person is unable to produce sufficient oral fluid for a sample to be taken, a police officer may require that the person submit to a blood test. (3) A police officer may give reasonable directions for the purpose of making a requirement under this section that a person submit to a drug screening test, oral fluid analysis or blood test. (4) A person must forthwith comply with a direction under subsection (3). Maximum penalty: $2 900. (5) Without derogating from section 47DA or 47EA, a drug screening test, oral fluid analysis or blood test to which a person has been required to submit under this section may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement that the person submit to the alcotest or breath analysis. (6) The performance of a drug screening test, oral fluid analysis or blood test that has been required under this section commences when a direction is first given by a police officer that the person concerned provide a sample of oral fluid or blood (as the case may be) to be used for the drug screening test, oral fluid analysis or blood test. (7) A drug screening test may only be conducted by a police officer. (8) The regulations may prescribe the manner in which a drug screening test, oral fluid analysis or blood test is to be conducted. (9) A person required under this section to submit to a drug screening test, oral fluid analysis or blood test must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of a police officer. (a) for a first offence—a fine of not less than $900 and not more than $1 300; (b) for a subsequent offence—a fine of not less than $1 500 and not more than $2 200. (9a) If— (a) a person has engaged in conduct of a kind described in section 47E(1)(a), (b) or (c) involving a motor vehicle; and (b) such conduct occurred while a child under the age of 16 years was present in or on that vehicle; and (c) the person refuses or fails to comply with a direction of a police officer (given in relation to such conduct) in contravention of subsection (9), the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (9). (9b) If a person is charged with an offence against subsection (9a) but the court is not satisfied that an offence against that subsection has been established beyond reasonable doubt, the person may be convicted, on that charge, of an offence against subsection (9) if the court is satisfied that an offence against subsection (9) has been so established. (10) It is a defence to a prosecution under subsection (9) or (9a) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (b) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) in the case of— (A) a drug screening test or an oral fluid analysis—the person's right to request the taking of a blood sample under subsection (11); or (B) a blood test—the person's right to request an oral fluid analysis under subsection (12); or (c) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (11) If a person of whom a requirement is made or to whom a direction is given under this section relating to a drug screening test or oral fluid analysis refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person's blood be taken by a medical practitioner or registered nurse, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood— (a) by a medical practitioner or registered nurse nominated by the person; or (i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner or registered nurse nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner or registered nurse, by any medical practitioner or registered nurse who is available to take the sample. (12) If a person of whom a requirement is made or to whom a direction is given under this section relating to a blood test refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that an oral fluid analysis be conducted, a police officer must do all things reasonably necessary to facilitate the conduct of an oral fluid analysis unless— (a) a requirement or direction under this section relating to a drug screening test or oral fluid analysis has been made of, or been given to, the person; and (b) — (i) the person refused or failed to comply with that requirement or direction on the ground of some physical or medical condition of the person and made a request under subsection (11) for a sample of the person's blood to be taken in accordance with that subsection; or (ii) the person was unable to produce sufficient oral fluid for a sample to be taken. (13) No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that— (a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against themself; or (b) the person consumed a prescribed drug after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given. (14) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section relating to a drug screening test or oral fluid analysis by reason of some physical or medical condition of the person unless— (a) a sample of the person's blood was taken in accordance with subsection (11); or (b) the person made a request as referred to in subsection (11), but— (i) a police officer failed to facilitate the taking of a sample of the person's blood as required by that subsection; or (ii) a medical practitioner or registered nurse was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of the person's blood in accordance with subsection (11) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (15) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section relating to a blood test by reason of some physical or medical condition of the person unless— (a) an oral fluid analysis was conducted in accordance with subsection (12); or (b) the person made a request as referred to in subsection (12), but a police officer failed to facilitate the conduct of an oral fluid analysis as required by that subsection; or (c) the taking of a sample of the person's oral fluid in accordance with subsection (12) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (16) If a court convicts a person of an offence against subsection (9) or (9a), the following provisions apply: (i) in the case of a first offence—for such period, being not less than 12 months, as the court thinks fit; or (ii) in the case of a subsequent offence—for such period, being not less than 3 years, as the court thinks fit; (b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month; (c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification; (d) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section. (17) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed. (18) If a person— (a) refuses or fails to comply with a requirement or direction under this section; or (b) submits to a drug screening test and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid, there will be reasonable ground to suspect that a prescribed drug is present in the person's oral fluid for the purposes of the exercise of any power conferred on a police officer (including a power of arrest) to prevent the person committing an offence by driving a vehicle in contravention of this Division. (19) Subsection (18) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act. 47EA—Exercise of random testing powers (1) The following provisions apply in relation to the exercise of random testing powers consisting of the giving of a direction to stop a motor vehicle or the making of a requirement to submit to an alcotest or drug screening test: (a) a police officer must not give such a direction or make such a requirement unless the police officer is in uniform; (b) if the police officer is driving or riding in or on a vehicle at the time of giving such a direction—the vehicle must be marked as a police vehicle or must be displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm; (c) a police officer must not make such a requirement relating to an alcotest unless the officer has in the officer's possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in the officer's possession, an apparatus of a kind approved by the Governor for the conduct of alcotests; (ca) a police officer must not make such a requirement relating to a drug screening test unless the officer has in the officer's possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in the officer's possession, an apparatus of a kind approved by the Governor for the conduct of drug screening tests; (d) the Commissioner of Police must establish procedures to be followed by police officers in the exercise of such powers, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons being subjected to the powers. (2) Despite any other provision of this Act, if a motor vehicle has stopped in response to a direction given by a police officer in the exercise of random testing powers, a police officer may delay the driver of the vehicle for as long as may be necessary to enable the police officer to ascertain whether the driver holds a current driver's licence or other authority to drive the vehicle. 47EB—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood If a person submits to an alcotest or a breath analysis and the alcotest 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 and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood. 47F—Schedule 1 further regulates oral fluid and blood sample processes