Road Traffic (Drug Driving) Regulations 2007

The Regulations are structured around a small set of legal and evidentiary concepts that connect observational policing, screening, sample collection, laboratory analysis and court certification. Key concepts are:

• Prescribed illicit drugs, defined narrowly and literally in the Regulations: tetrahydrocannabinol (THC), methylamphetamine and MDMA (regulation 3). The list is definitive for the purposes of the Act’s drug-driving provisions as invoked by regulation 3.

• Driver assessment: the Regulations define the observable signs a police officer is to base a drug impairment assessment upon, listing injuries, skin responses, smell of alcohol, speech, action, movement, balance, eye appearance, breathing, clothing/attitude and comprehension (regulation 4). The list frames what may be recorded as objective,and thus forms part of the evidentiary record captured on prescribed Form 4 (Schedule 1).

• Preliminary oral fluid test: a simple frontline screening step for police is prescribed in regulation 5; it is a device check and a short checklist (packaging and expiry, device integrity, readiness, ensuring the device is wiped on the tongue, checking sufficient oral fluid, and noting a device indication).

• Collection and testing of oral fluid by authorised drug testers: regulation 6 defers to Schedule 2, which contains detailed, device-specific sequences for Securetec Drugwipe II Twin Combo and Dräger DrugTest 5000 Analyzer. Schedule 2 prescribes preparatory checks, sample collection actions by the subject, device set-up, timing, ampoule activation, incubation/wait periods and instructions for transferring an oral fluid sample into vials for later laboratory analysis, including a specific 10 minute time window for certain Dräger steps (Schedule 2 clauses 5-8).

• Forms and certification: Schedule 1 prescribes specific forms to be used under s 70 of the Act. Form 1 is a drugs analyst’s certificate (regulation 10(1) and Schedule 1 Form 1). Form 4 documents the driver assessment and contains a statutory certification that the assessment was conducted in accordance with the Regulations (regulation 10(4) and Schedule 1 Form 4). Form 5 certifies oral fluid collection by an authorised drug tester (regulation 10(5) and Schedule 1 Form 5). Form 6 is the Commissioner’s certification that a named person is an authorised drug tester (regulation 10(6) and Schedule 1 Form 6).

• Chain of custody and sample particulars: regulation 7 prescribes the minimum particulars that must accompany a sample delivered to a drugs analyst: serial/barcode, donor name, authorised tester name/qualifications, police officer name/signature, date/time of collection and those who delivered the sample.

• Manufacturer’s instructions: the Regulations explicitly allow police and authorised drug testers to "have regard to" manufacturer’s instructions if the prescribed steps do not fully describe the steps required for a particular device (regulation 8). That creates an explicit legal doorway to incorporate device-specific manufacturer actions where the Regulations are device-agnostic.

• Fees and payment logic: the Regulations set a flat fee for oral fluid analysis at $185 payable by the Commissioner of Police, and provide for court-ordered reimbursement to the Commissioner from convicted offenders for offences under specified Act provisions (regulation 11).

• Cross-reference to other regulatory instruments: the Regulations prescribe the use of an existing form in the Road Traffic (Blood Sampling and Analysis) Regulations 1975 where blood sampling is required from an incapable person (regulation 9).

These concepts interlock: the observational assessment (regulation 4 and Form 4) justifies screening (regulation 5), which may give rise to collection by an authorised drug tester (regulation 6 and Schedule 2), chain-of-custody particulars and certificates accompany the sample to the analyst (regulation 7 and Form 1), and the analytical fee and evidentiary certificates feed into court processes where recovery of the analysis cost is possible after specified convictions (regulation 11).

The Regulations assign roles and obligations that affect a defined set of actors, with different costs and decision rights for each.

• Police officers: they execute driver assessments under regulation 4 and perform preliminary oral fluid tests under regulation 5. Police officers must check packaging, expiry and device condition, ensure the device is wiped on the suspect’s tongue, and note the device indication (regulation 5). Police officers also are the named requirement-signatory in the prescribed sample delivery particulars (regulation 7(d)). Form 4 is the police officer’s record and certification that the driver assessment was conducted in accordance with the Regulations (regulation 10(4) and Schedule 1 Form 4). Police pay an operational cost in time to inspect devices and complete paperwork, but the Commissioner of Police initially pays the laboratory analysis fee (regulation 11(2)).

• Authorised drug testers: the Regulations contemplate a distinct role for authorised drug testers, who must follow the device-specific collection and testing steps in Schedule 2 when conducting a section 66D oral fluid collection (regulation 6 and Schedule 2). Form 5 is to be completed by the authorised drug tester certifying collection, device used and the indicated result (regulation 10(5) and Schedule 1 Form 5). The Commissioner certifies authorised drug testers via Form 6 (regulation 10(6) and Schedule 1 Form 6).

• Drugs analysts and laboratories: analysts receive the samples for analysis and must certify that the sample was analysed and report the analysis method and result using Form 1 (regulation 10(1) and Schedule 1 Form 1). The Regulations prescribe the Chemistry Centre (WA) as the laboratory for which the $185 fee applies (regulation 11(1) and Schedule 1 Form 1 mentions the Chemistry Centre).

• Suspects/drivers: the Regulations affect drivers by prescribing the physical actions they must take during sample collection: wiping the saliva collector on the tongue and placing it under the tongue until indicator shows blue for both device types (Schedule 2 clauses 2 and 6). If convicted under specified offence provisions, a driver may be ordered by the court to repay the Commissioner’s paid analysis fee (regulation 11(3)).

• Device manufacturers and suppliers: Schedule 2 prescribes two approved device models and supplies step sequences specific to them: Securetec Drugwipe II Twin Combo (Division 1) and Dräger DrugTest 5000 Analyzer (Division 2). This creates a regulatory market for those device models and an implied approval pathway. Regulation 8 allows officers and testers to have regard to manufacturer instructions where the prescribed steps do not fully describe device-specific requirements.

• Courts and prosecutors: the Regulations provide forms and certificate templates used in court (Forms 1-5, regulation 10), and the court plays a role in cost recovery via an order to repay the Commissioner for analysis fees where the defendant is convicted under the specified sections of the Act (regulation 11(3)). The court’s decision-making thus intersects with the Regulations’ documentary outputs.

• Administrative Central Agencies: the Commissioner of Police is explicitly assigned payment responsibility for the Chemistry Centre analysis fee (regulation 11(2)) and authorised tester lists are certified by the Commissioner via Form 6 (regulation 10(6)). These are budgetary and administrative duties at organisational level.

The distribution of costs is explicit in one material respect: the Commissioner of Police pays the analysis fee up-front but the court may order repayment from a convicted person for certain offences (regulation 11(2)-(3)). That creates a specific incentive and cost allocation between the agency and individuals. The Regulations also create compliance burdens concentrated on police and authorised testers in terms of device checks, device-specific procedural adherence and completion of prescribed certificates.

The Regulations allocate discrete duties to police, authorised drug testers, drugs analysts and the Commissioner of Police. They also create documentary rights and evidentiary refuges through prescribed certificates.

Duties

• Police officer duties: undertake a driver assessment following the observational checklist in regulation 4; conduct a preliminary oral fluid test in accordance with the steps in regulation 5; complete Form 4 to document and certify that an assessment was carried out in accordance with the Regulations (regulation 10(4) and Schedule 1 Form 4); be recorded as the requisitioning officer in the prescribed particulars delivered to a drugs analyst (regulation 7(d)).

• Authorised drug tester duties: where section 66D of the Act is invoked, collect and test oral fluid following the detailed device-specific steps in Schedule 2 (regulation 6 and Schedule 2); ensure sample identification and marking; complete Form 5 to certify that the oral fluid sample was collected in accordance with the Regulations and identify the device used and the test indications (regulation 10(5) and Schedule 1 Form 5).

• Drugs analyst duties: analyse samples received and issue a certificate on Form 1 describing the analysed quantity, analytical method and results (regulation 10(1) and Schedule 1 Form 1). Regulation 7 prescribes the particulars that must accompany the sample to the analyst, which forms part of the analyst’s receipt and chain-of-custody.

• Commissioner of Police duties: pay the fixed fee of $185 for analysis at the Chemistry Centre (WA) (regulation 11(1)-(2)); certify authorised drug testers on Form 6 (regulation 10(6) and Schedule 1 Form 6).

Rights and evidentiary mechanisms

• Rights to rely on manufacturer instructions: regulation 8 permits a police officer or authorised drug tester to have regard to any manufacturer’s instructions included in an approved device’s packaging if the Regulations’ steps appear incomplete for that device. That creates a legal right to incorporate manufacturer guidance into the operational process.

• Prescriptive evidentiary forms: Forms 1-6 (Schedule 1) are prescribed for the Act’s evidentiary certificates under section 70; following these forms provides parties with a clear route to establish compliance with statutory requirements. For example, Form 5 certifies collection in accordance with the Regulations (regulation 10(5)); Form 1 records laboratory analysis (regulation 10(1)).

• Chain-of-custody particulars: regulation 7 prescribes mandatory particulars to accompany samples to the drugs analyst, a right of the analyst to expect these particulars, and an implied duty on the delivering parties to ensure they travel with the sample.

Procedural deadlines and time-bound duties

• Time limits for Dräger workflow: Schedule 2 clause 8(a) requires certain steps to be taken within 10 minutes of obtaining the sample when using the Dräger Device. This creates a strict operational duty on the authorised tester to follow the machine steps and then, as soon as practicable, move the sample from the head to the storage tube and pipette into two vials for s 69B (Schedule 2 clause 8(b)(i)-(ii)).

Duty to use prescribed forms and to certify compliance

• The Regulations require the use of prescribed forms in a number of circumstances, linking statutory admissibility to completion of those certificates. Form 4 is used to certify the driver assessment was conducted in accordance with the Regulations (regulation 10(4)). Form 5 is used to certify that oral fluid was collected by an authorised drug tester in accordance with the Regulations (regulation 10(5)). The prescribed forms carry the force of evidence under section 70 of the Act, as the Regulations implement the section’s powers to prescribe forms.

Costs, payment duty and recovery

• The Commissioner of Police must pay the chemistry analysis fee up-front (regulation 11(2)). If a person is convicted of an offence under s 64AB or s 64AC of the Act and the Commissioner has paid the fee, the convicting court must order the person to repay the Commissioner the fee and the amount may be recovered as if it were a penalty imposed under the Act (regulation 11(3)). That creates a statutory mechanism linking conviction to cost recovery.

Taken together, the duties require police and authorised drug testers to follow set procedures and to complete the specific certificates. The rights granted are primarily procedural: to rely on manufacturer instructions where the Regulations are silent, and to rely on the prescribed forms and certificates as the evidentiary backbone for prosecutions under the Road Traffic Act.

The Regulations themselves do not create substantive criminal offences or penal sanctions; they implement procedural and evidentiary steps that support the enforcement of drug-driving offences under the Road Traffic Act 1974. The enforcement picture in the Regulations is therefore predominantly documentary and administrative, with three practical enforcement touchpoints evident in the text.

1. Evidentiary enforcement via prescribed certificates and particulars

• The Regulations prescribe specific forms and contents for evidentiary certificates under section 70 of the Road Traffic Act. Form 1 is the drugs analyst certificate capturing the analysis method and result (regulation 10(1) and Schedule 1 Form 1). Form 5 certifies oral fluid collection by an authorised drug tester (regulation 10(5) and Schedule 1 Form 5). Regulation 7 prescribes the particulars that must accompany samples delivered to the drugs analyst. These documents function as statutory evidentiary building blocks for prosecutions. Non-compliance with the prescribed steps or incomplete particulars could be litigated as an evidentiary defect in proceedings under the Act.

2. Financial enforcement and recovery mechanism

• Regulation 11 establishes a monetary mechanism linked to enforcement. It fixes the fee for analysis of an oral fluid sample at $185 and allocates payment responsibility to the Commissioner of Police (regulation 11(1)-(2)). Regulation 11(3) then requires the convicting court, where a person is convicted of an offence under section 64AB or 64AC of the Act, to order the convicted person to repay to the Commissioner the fee previously paid. The regulation expressly permits the Commissioner to recover that amount as if it were a penalty imposed under the Act. That converts the analysis cost into recoverable sums following conviction for specified offences.

3. Operational enforcement through procedural compliance

• Several provisions impose strict, time-sensitive operational requirements that underpin evidentiary reliability. For example, Schedule 2 clause 8(a) requires certain Dräger Analyzer steps be completed within 10 minutes of obtaining the sample, and clause 8(b)(ii) requires transferring sample material into two empty vials for section 69B purposes. Failure to comply with these device-specific procedures is not a new offence in the Regulations, but it may affect admissibility or the weight of evidence and consequently the practical enforcement of drug-driving offences.

Limitations in the Regulations’ enforcement scope

• The Regulations do not specify penalties for non-compliance with their procedural steps; the instrument provides forms and steps but relies on the underlying Act and the courts to give consequences to non-compliance in the course of prosecutions and admissibility challenges. Regulation 11(3) is a narrow example where the court’s conviction decision triggers statutory reimbursement. Other disciplinary or administrative sanctions (for example, internal police supervision for deviating from procedures) are not prescribed by the Regulations and would rest on other instruments or organisational policy.

Chain-of-custody enforcement

• Regulation 7 expressly prescribes the particulars that must accompany a sample to the drugs analyst. That establishes the minimum chain-of-custody metadata required to support subsequent analysis. The presence or absence of these particulars is likely critical in court; the Regulations make them mandatory for the purposes of section 70B(1) of the Act. Non-attendance to these particulars can hinder enforcement by making the analyst’s certificate vulnerable to challenge.

In sum, the Regulations serve to standardise evidence production, allocate the immediate cost of analysis to a public agency with a statutory recovery path, and bind practitioners to device- and time-specific procedures that underpin prosecutorial enforcement. The Regulations leave substantive penalties to the Act and to judicial processes that determine conviction and (for the specific analysis fee) post-conviction cost recovery.

The Regulations are explicitly framed as subordinate instruments designed to operate within the statutory architecture of the Road Traffic Act 1974 and other specified instruments. The Regulations repeatedly refer to sections of the Act, and they prescribe forms and cross-reference earlier subordinate regulations. The main legal interactions apparent from the text are:

• Road Traffic Act 1974: The Regulations are explicitly made “for the purposes of” multiple sections of the Act. They prescribe the drugs for s 65 (regulation 3), set procedures for driver assessments under s 66A(7) (regulation 4), prescribe steps for preliminary oral fluid tests under s 66C(7) (regulation 5), and set device-specific collection and testing procedures under s 66D(4) (regulation 6). They prescribe forms and certificates for the operation of s 70 and s 70B (regulation 10 and regulation 7 respectively). The Dräger transfer into vials instruction is explicitly for the purposes of section 69B of the Act (Schedule 2 clause 8(b)(ii)). The Regulations therefore operate as the procedural scaffolding of the Act’s drug-driving scheme.

• Road Traffic (Blood Sampling and Analysis) Regulations 1975: Regulation 9 prescribes that the Schedule Form D from the 1975 Blood Sampling regulations is to be used where a person is incapable of submitting to blood sampling under s 66B(1) of the Act. This cross-reference ensures continuity and avoids duplicative form‑making across related instruments.

• Evidentiary rules under the Road Traffic Act: Regulation 10 prescribes specific forms to be used for certificates that will be relied upon under section 70(3b) and 70(3d) of the Act (for example, a drugs analyst’s certificate, approved expert certificates and the authorised drug tester certificate). The Regulations therefore specify the precise documentary format through which evidence under the Act will be tendered in proceedings.

• Administrative and payment rules: Regulation 11 establishes an interaction between agency budgeting and criminal procedure. The Commissioner of Police is required to pay the $185 analysis fee, but the courts, upon conviction under specific sections of the Act (s 64AB or s 64AC), must order repayment. The regulation authorises recovery as if the sum were a penalty imposed under the Act, thereby anchoring civil recovery to the penal framework of the Act.

• Manufacturer instructions and device approval: Regulation 8 permits police and authorised testers to rely on manufacturer’s instructions in an approved device’s packaging where the Regulations’ steps do not fully describe the requirements for that device. This creates a legal bridge between the Regulations and the technical documentation supplied by device manufacturers. Schedule 2 lists device-specific steps for the Securetec Drugwipe II Twin Combo and the Dräger DrugTest 5000 Analyzer, which means that those devices are effectively treated as approved devices for which compliance with the Schedule constitutes regulatory compliance. The Regulations do not, however, set out a formal statutory approval procedure for devices beyond the Schedule entries.

• Chemistry Centre (WA) and laboratory rules: Schedule 1 Form 1 references the Chemistry Centre (WA) and regulation 11 fixes the analysis fee for that laboratory. This interlocks the Regulations with the Chemistry Centre’s role as the state analytical provider for oral fluid.

• Section cross-references within subordinate instruments: The Regulations make explicit internal cross-references to sections of the Act (for example, s 66A, s 66C, s 66D, s 70B, s 72(1a)) and to forms from other regulations (Road Traffic (Blood Sampling and Analysis) Regulations 1975). These interactions mean that any change to the cited Act sections or the 1975 regulations could have an operational effect on the procedures prescribed here.

The practical legal consequence is that compliance with the Regulations is necessary to create robust, admissible evidence under the Road Traffic Act. The Regulations are therefore tightly integrated into the Act’s enforcement mechanics, with cross-references ensuring procedural coherence between screening, sampling, laboratory analysis and courtroom certification.

The compilation table and amendment notes in the instrument document a series of legislative updates since first making in 2007. The Regulations were initially published and made operative in October 2007 (r 1 and r 2; compilation table). Since then the Regulations have been amended on multiple occasions; the compilation table and in-text amendment notes list the following material updates.

• 2008 amendment: Regulation 3, the list of prescribed illicit drugs, was amended by the Road Traffic (Drug Driving) Amendment Regulations 2008 (Gazette 25 Jan 2008 p. 217). The current text of regulation 3 names tetrahydrocannabinol, methylamphetamine and MDMA.

• 2009 amendment: Schedule 1 Form 1 (the analyst’s certificate) was amended in 2009 (Gazette 9 Oct 2009 p. 3998-9), as shown by the Form 1 note.

• 2014 omnibus changes: The Road Traffic (Drug Driving) Amendment Regulations 2014 (Gazette 11 Jul 2014 p. 2439‑43) inserted regulation 6, bringing Schedule 2 into force, and amended several other provisions. Regulation 4 was later amended with Gazette notices in December 2014 and March 2015. The 2014 amendments also added device‑based guidance and Schedule 2 headings (see the Schedule 2 heading insertion note, Gazette 11 Jul 2014 p. 2440).

• 2015 amendments: The Regulations were amended in March 2015 (Gazette 6 Mar 2015 p. 817‑19) and in December 2015 (Gazette 29 Dec 2015 p. 5182). The March 2015 changes updated regulation 4 and Schedule 2 clauses. The December 2015 amendment inserted regulation 11 setting the analysis fee of $185 and the repayment mechanism; regulation 11 also carries amendment notes showing its insertion date as 29 Dec 2015.

• 2017 amendments: Regulation 7, prescribing the particulars of sample delivery to a drugs analyst, was inserted by an instrument published 7 February 2017 (Gazette 7 Feb 2017 p. 1174‑5). The compilation table notes commencement 10 Mar 2017 for those changes. Additionally, the Schedule 2 Division 1 heading for Securetec Drugwipe II Twin Combo and related clauses were inserted by the 6 Oct 2017 amendment (Gazette 6 Oct 2017 p. 5185‑6).

• 2018 amendment: Regulation 11 was amended in 2018 (Gazette 14 Dec 2018 p. 4807), though the text in the document shows the fee and payment/recovery mechanism retained.

• 2020 amendment: SL 2020/201 (23 Oct 2020) amended Schedule 2 clause 4(g) (the wait period after ampoule break for the Securetec device), as indicated by the clause 4 note showing amendment by SL 2020/201 r. 4.

• 2021 amendment: The Regulations were amended by SL 2021/58, affecting Form 6 and regulation 10(6) (Gazette 21 May 2021 and commencement 1 Jul 2021). The in-text notes for regulation 10 reflect these later changes.

The amendment history shows a pattern of device‑specific and procedural updates following technological and operational change. Several amendments have been technical, inserting device-specific steps (Schedule 2) and refining procedural checklists (regulations 4 and 5), while others established administrative features such as sample particulars (regulation 7) and the fee regime (regulation 11). The compilation table records the sequence and dates of the amendments cited above.

Readers should note that the Regulations have evolved incrementally to incorporate new device models and to specify tighter evidentiary and chain-of-custody requirements. The amendment notes and compilation table in the instrument are the authoritative history contained within this text; any further legislative changes beyond those recorded here are not reflected in the document supplied.

The Regulations themselves do not record any litigation. The instrument contains no case citations and the compilation notes do not refer to judicial decisions. Consequently, there is no litigation history contained within this text to summarise.

The Regulations do, however, create multiple potential loci for litigation in prosecutions under the enabling Road Traffic Act. The procedural provisions and prescribed forms create evidentiary expectations that courts commonly test. The Regulations prescribe the precise steps for device use (Schedule 2), the checklist for preliminary oral fluid tests (regulation 5), the particulars to accompany samples to the analyst (regulation 7) and the prescribed forms to be used by analysts, experts, police and authorised testers (regulation 10 and Schedule 1). Litigation risks and common contest points that are grounded in the Regulations’ text include the following, each traceable to specific regulatory provisions:

• Admissibility and compliance with device‑specific steps: Schedule 2 contains detailed steps for the Securetec Drugwipe II Twin Combo and the Dräger DrugTest 5000 Analyzer. Deviation from those steps, or failure to follow time limits such as the 10 minute requirement for certain Dräger steps (Schedule 2 clause 8(a)), could be the basis for admissibility challenges.

• Chain of custody and sample particulars: Regulation 7 prescribes the particulars that must be delivered with a sample to the drugs analyst. Missing or incomplete particulars may be raised in court to challenge identification, continuity or the reliability of the sample.

• Form completeness and statutory format: Regulation 10 prescribes Forms 1-6 for analysts, experts, police and authorised testers. Parties may litigate whether the prescribed form was properly completed; for example, whether Form 5 correctly certifies that an authorised drug tester collected a sample in accordance with the Regulations. The Regulations make these forms the default evidentiary templates for section 70 certificates.

• Reliance on manufacturer’s instructions: Regulation 8 allows police and authorised drug testers to “have regard to” manufacturer’s instructions if the Regulations do not fully describe the steps required for a device. Litigation could arise where manufacturer instructions were followed that are inconsistent with Schedule 2 steps, or where an authorised tester claims to have relied on manufacturer instructions not included in the device packaging.

• Expert evidence: Forms 2 and 3 are prescribed for approved experts describing conduct associated with specific drugs and the usual effect of those drugs on motor vehicle control (regulation 10(2)-(3) and Schedule 1 Forms 2 and 3). Disputes may centre on the sufficiency, expertise or content of those certificates.

• Cost recovery and its procedural consequences: Regulation 11(3) requires courts to order convicted persons to repay the Commissioner any analysis fee paid by the Commissioner for purposes of section 66D, where the person is convicted under specified offences. Litigation could engage whether the fee was properly charged, whether the sample related to the particular conviction, or whether the repayment procedure was correctly applied.

Because the Regulations provide the procedural scaffolding for evidence production, litigants in proceedings under the Road Traffic Act may focus on deviations from the prescribed procedures and on the completeness and correctness of the prescribed forms. The Regulations themselves do not supply judicial interpretation or precedent; any authoritative resolution of contested points would come from the courts applying the Road Traffic Act and these Regulations in individual cases, none of which are recorded in this instrument.

The Regulations prescribe detailed procedural steps and forms but leave practical traps for practitioners who fail to adhere to device-specific steps, timing, documentation and chain-of-custody requirements. The following are concrete operational pitfalls grounded in the text.

1. Device condition and expiry checks are mandatory but easy to overlook

• Regulation 5(a)-(b) requires police to check device packaging is not damaged and expiry dates have not passed and to discard devices that show damage. Schedule 2 clauses 1 and 5 repeat these checks for Securetec and Dräger devices respectively. Using damaged or expired devices risks rendering the device indication unreliable and the resulting evidence vulnerable.

2. Distinction between preliminary oral fluid test and authorised tester procedures

• Regulation 5 sets out a simple checklist for a “preliminary oral fluid test” and is framed for police officers. Full collection and testing under section 66D must be done by an authorised drug tester following Schedule 2 (regulation 6). Confusing the two roles or failing to have an authorised tester perform the Schedule 2 steps can create gaps in the evidentiary chain.

3. Time‑sensitive steps for Dräger: the 10 minute window

• Schedule 2 clause 8(a) requires specific Analyzer steps to be completed within 10 minutes after obtaining the sample. Clause 8(b)(i) then requires moving the sample from the head to the storage tube by shaking or centrifuge and clause 8(b)(ii) requires using a pipette to transfer the oral fluid sample and isopropanol into two empty vials for section 69B purposes. Failure to meet the 10 minute window or to pipette into two vials as prescribed may compromise the sample’s admissibility.

4. Manufacturer instructions may be decisive but must be in the device packaging

• Regulation 8 allows reliance on manufacturer instructions included in the approved device’s packaging. That is conditional language: the instruction must be “in an approved device’s packaging” and is to be used only if the Regulations’ prescribed steps do not fully describe the steps required. Relying on external or undocumented manufacturer advice risks contest in court.

5. Specific waiting periods for Securetec devices and amendments

• Schedule 2 clause 4(f) requires leaving the Securetec testing device undisturbed for 3 minutes or 8 minutes “as required by the manufacturer’s instructions in the testing device’s packaging”. Recent amendment notes (SL 2020/201 r. 4) indicate timing has been subject to later change. Operational staff must confirm the applicable timing applicable to the device batch and ensure the packaging instructions are retained.

6. Chain of custody particulars are prescribed; omission matters

• Regulation 7 lists the particulars that must accompany a sample to the drugs analyst. Omitting any of these particulars risks undermining the analyst’s receipt and subsequent certificate and can be relied upon by defence counsel to attack identity or continuity.

7. Certification formalities: prescribed forms are mandatory templates

• Forms 1-6 are prescribed for the purposes of section 70 and related subsections (regulation 10). Courts expect compliance with these templates. For example, Form 5 requires the authorised drug tester to certify that the sample was collected “in accordance with the regulations”. If the collector cannot truthfully sign that statement, the evidentiary value of the certificate is reduced.

8. Fee recovery is conditional on specific convictions

• Regulation 11(2) places payment responsibility on the Commissioner of Police, while regulation 11(3) allows courts to order repayment only if the person is convicted under s 64AB or s 64AC. If the person is not convicted under those specified sections, the Commissioner may not be able to recover the analysis fee. Practitioners should note the narrow trigger for reimbursement.

9. Authorisation of testers and proof of authority

• Form 6 is the Commissioner’s certificate to show a person is an authorised drug tester (regulation 10(6) and Schedule 1 Form 6). If a tester’s authorised status is not properly certified or if the certificate is not produced, the collection certificate in Form 5 may be vulnerable.

10. Use of two empty vials for section 69B

• Schedule 2 clause 8(b)(ii) requires transfer to two empty vials for the purposes of section 69B of the Act. Practitioners must ensure the required number of vials and pipetting are performed and documented. Failure may affect the statutory testing pathway for confirmation.

In short, the Regulations condition admissibility and evidentiary certainty on strict adherence to device checks, timing, packaging-based manufacturer instructions, prescribed forms and chain-of-custody particulars. Small operational slips, such as failing to check expiry dates, omitting a signature on Form 5, missing the 10 minute window for the Dräger device, or not transferring samples into two vials, are concrete “gotchas” that can compromise an investigation and subsequent prosecution.

Compliance requires aligning operational procedures, training, equipment storage and evidentiary documentation with the Regulations’ detailed prescriptions. Below is a practical compliance checklist arranged by role, grounded in the specific regulatory provisions.

For all operational staff

• Maintain up-to-date copies of the Regulations, Schedule 2 device instructions as published, and retain current manufacturer’s instructions included in device packaging for reference in accordance with regulation 8.

• Keep an inventory of approved devices on hand and ensure devices are stored and rotated so expiry dates are checked prior to use (regulation 5(a) and Schedule 2 clauses 1 and 5).

For police officers conducting driver assessments and preliminary tests

• Follow the driver assessment checklist in regulation 4: record observations on injuries, skin responses, smell of alcohol, speech/action/movement/balance, eye appearance, breathing rate/manner, clothing/attitude and comprehension.

• Use Schedule 1 Form 4 to document the driver assessment and certify that the assessment was conducted in accordance with the Regulations (regulation 10(4) and Schedule 1 Form 4).

• For preliminary oral fluid testing, follow regulation 5 step-for-step: check packaging and expiry, inspect device for damage and discard if damaged, ensure the device is ready to collect, ensure the device is wiped on the person’s tongue, confirm sufficient oral fluid, and note device indication. Keep the device packaging if it contains manufacturer instructions relied upon, per regulation 8.

For authorised drug testers (collection and testing under s 66D)

• Ensure you hold an authorisation certified by the Commissioner of Police and that Form 6 is issued and available (regulation 10(6) and Schedule 1 Form 6).

• Collect and test oral fluid strictly according to the Schedule 2 steps relevant to the device in use. For Securetec Drugwipe II Twin Combo, follow Schedule 2 Division 1 clauses 1-4: packaging checks, instruct the suspect to wipe the saliva collector on both sides of the tongue, place under the tongue until indicator turns blue, dab collector on device pads, break the ampoule, hold vertically for 10 seconds, then leave device undisturbed for the manufacturer‑specified interval before reading (clause 4).

• For Dräger DrugTest 5000 Analyzer, follow Schedule 2 Division 2 clauses 5-8: equipment checks and set-up (clause 5), instructed collection movements for 10-15 seconds and under‑tongue placement until the sample indicator shows blue (clause 6), transfer of the drug collection head into the storage tube with isopropanol (clause 7), and then within 10 minutes complete the Analyzer loading steps, and as soon as practicable move the sample to the bottom of the storage tube then pipette the oral fluid plus isopropanol into two empty vials for section 69B (clause 8). Ensure centrifuge or shaking steps are available as required by clause 8(b)(i).

• Complete Form 5 immediately after collection to certify the sample identity, the device used and the indicated result (regulation 10(5) and Schedule 1 Form 5). Ensure serial numbers or barcodes are recorded, as required by regulation 7.

Chain of custody and delivery to analyst

• Prepare the sample with the prescribed particulars in regulation 7: serial/barcode, donor name, authorised tester name and qualifications, name and signature of the police officer who required the sample, date/time of collection, and names/signatures of persons who delivered the sample to the drugs analyst. Ensure these particulars travel with the physical sample.

• Deliver the sample and the prescribed particulars to the drugs analyst promptly. Ensure that the analyst has the sample identification and the delivery particulars to complete Form 1 (regulation 10(1) and Schedule 1 Form 1).

Laboratory and analyst interaction

• Ensure the laboratory receiving samples (the Chemistry Centre (WA) is specified in the Form 1 template) is aware of the prescribed particulars and expects the sample in the format required by s 69B (the Regulations mention transferring into vials for s 69B in Schedule 2 clause 8).

• Budget and administrative staff should note regulation 11: the Commissioner of Police is to pay the $185 fee for an oral fluid analysis. Retain invoices and payment records so a court-ordered repayment can be pursued if conviction under s 64AB or s 64AC occurs (regulation 11(2)-(3)).

Record keeping and retention

• Store completed Forms 4 and 5, the device packaging containing manufacturer instructions if used to supplement the Regulations under regulation 8, the chain-of-custody particulars required by regulation 7, and the analyst’s Form 1 certificate in the prosecution file. Certificates from approved experts (Forms 2 and 3) should be obtained where required and completed in the prescribed template (regulation 10(2)-(3)).

Training and quality assurance

• Provide training to police and authorised testers on the specific steps for each approved device in Schedule 2, emphasising the 10 minute time window for Dräger device steps and the different incubation/wait periods for Securetec devices.

• Implement a checklist-based audit regime to ensure device expiry and damage checks are completed prior to use, that Forms 4, 5 and the particulars required by regulation 7 are completed contemporaneously, and that samples are transferred to the analyst with the required documentation.

Legal and prosecutorial coordination

• Prosecution counsel should ensure disclosure of the completed prescribed forms, device packaging/manufacturer instructions relied upon under regulation 8 and chain-of-custody particulars under regulation 7. Defence should be provided a clear evidentiary trail from driver assessment (Form 4) through collection (Form 5) to analysis (Form 1).

Checklist summary (minimum actions on scene)

1. Police officer: perform and record driver assessment on Form 4 (regulation 4; Schedule 1 Form 4).
2. Police officer: if preliminary oral fluid test performed, follow regulation 5 checklist and retain device packaging if manufacturer instructions are to be relied upon.
3. Authorised drug tester: confirm authorisation (Form 6), perform device-specific collection and testing per Schedule 2, observe timing windows and transfer sample into vials as required for s 69B, and complete Form 5.
4. Chain-of-custody: prepare and attach the particulars prescribed by regulation 7.
5. Laboratory: receive sample, complete Form 1 analysis certificate and provide results.
6. Administration: pay Chemistry Centre fee ($185) and retain proof for potential court-ordered recovery per regulation 11.

Following these device-specific steps, documentation requirements and payment procedures will align operational practice with the Regulations’ statutory requirements and create the evidentiary trail the Road Traffic Act expects.