29Defence for certain drugs

29 Defence for certain drugs (1) It is a defence to a prosecution for an offence against section 28(1) if: (a) analysis of a blood sample or saliva sample taken under this Part: (i) gives no indication of any drug mentioned in section 19A(a); but (ii) does indicate the presence of a drug (or drugs) mentioned in section 19A(b); and (b) the defendant satisfies the court as to the matters mentioned in subsection (2). (2) The defendant must satisfy the court that: (a) the defendant was, at the time of the alleged offence, under treatment by a medical practitioner and had taken the drug as part of that treatment; and (b) the defendant had taken the drug in accordance with the directions of the medical practitioner. Division 4 Offence of driving under influence of alcohol or drug 29AAA Driving under influence (1) A person commits an offence if, while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle, the person: (a) drives a motor vehicle; or (b) is a driving instructor occupying a passenger seat in a vehicle for the purpose of instructing another person to drive the Division 4 Offence of driving under influence of alcohol or drug Traffic Act 1987 32 (ca) failing to submit to a saliva test; time of the previous offence, was of a class of person mentioned in section 24(1)); (3) If a court finds a person guilty of a relevant offence relating to the influence of a drug only, the person's licence to drive is automatically cancelled and the person is disqualified from obtaining a licence: (a) for a first offence – for a minimum period of 6 months; or (b) for a second or subsequent offence – for a minimum period of (3A) If a court finds a person guilty of a relevant offence relating to the influence of alcohol, or alcohol and a drug, but not a drug only, the person's licence to drive is cancelled and the person is disqualified from: least 6 months; and is at least 12 months; and Traffic Act 1987 33 (4) A relevant offence that is a second or subsequent offence is an (5) Evidence other than the result of a breath analysis or blood test may be given in a court to show the concentration of alcohol in a person's breath or blood or to show that a person was or was not under the influence of alcohol or a drug. (6) A court may find that a person was, at the relevant time, under the influence of alcohol or a drug: (a) without there being evidence of the concentration of alcohol in the person's breath or blood or of a prohibited drug in the person's body; or (b) even though the evidence showed the person had: (i) a BrAC of less than 0.05 grams of alcohol per 210 litres of exhaled breath; or (ii) a BAC of less than 0.05 grams of alcohol per 100 millilitres of blood. (7) For this section, a person is taken to be under the influence of alcohol or a drug even though the effect on the person's ability to have proper control of a vehicle arises from a combination of alcohol and a drug or a combination of drugs. 29AAB When police can pull driver over at random (1) A police officer may direct the driver of a motor vehicle to pull over, without reasonable suspicion the driver has committed an offence, for one or both of the following purposes: (a) to require the driver to submit to a breath test to determine whether there is alcohol in the driver's breath; Traffic Act 1987 34 (b) to require the driver to submit to a saliva test to determine whether there is a prohibited drug in the driver's body. (2) The driver must comply with the direction. (3) An offence against subsection (1) (a relevant offence) is a second (d) failing to submit to a saliva test; (e) failing to give a sample of blood for analysis; (4) If a court finds a person guilty of a relevant offence, the person's Traffic Act 1987 35 Notes for subsection (4) (5) However, a person is disqualified from obtaining a licence for a minimum period of 5 years if a court finds the person guilty of a relevant offence and the person has previously been found guilty of any of the following offences, committed within 3 years before committing the relevant offence: (d) failing to provide a sample of blood for analysis; (e) failing to comply with a direction from a police officer to pull (6) Also, if a court finds a person guilty of a relevant offence and the Traffic Act 1987 36 (e) driving with: (f) driving under the influence of alcohol or a drug; (g) failing to provide a sufficient sample of breath for a breath (h) failing to submit to a saliva test. (i) failing to provide a sample of blood for analysis; (j) driving with alcohol in the breath or blood (if the person, at the (7) A relevant offence is an immediate suspension offence. 29AAC Breath test and breath analysis (1) A police officer may, in the following circumstances, require a person to submit to a breath test or a breath analysis (or both) to determine if the person's breath contains alcohol: (a) the person is a driver directed to pull over under section 29AAB(1)(a); (ab) the person is a driver who the officer has reasonable cause to suspect has committed an offence under this Act or the Motor Vehicles Act 1949; (b) the officer has reasonable cause to suspect the person: (ii) was the driver of a motor vehicle that was involved in a crash on a road, road-related area or public place; or (iii) was involved in a crash on a road, road-related area or public place and the person has, or had at the time of the crash, alcohol in the person's breath or blood. Traffic Act 1987 37 (2) The officer may only require the person to submit to a breath test or breath analysis if not more than 4 hours has expired since the driver was pulled over or the offence, or crash, mentioned in subsection (1) occurred. (3) If a police officer requires a person to submit to a breath test, the person must comply with the directions given by the officer or another police officer. (4) If a police officer requires a person to submit to a breath test and: (a) the person fails to provide a sufficient sample of breath for the completion of the test; or (b) the officer reasonably believes (whether as a result of the test or otherwise) that the person may have committed an offence under Division 2; the officer or another police officer may arrest the person without warrant and detain the person for the purpose of carrying out a breath analysis. (5) A police officer may require the arrested person to submit to a breath analysis. (6) A police officer must not require a person to submit to a breath test or breath analysis under this section if it appears to the officer that the person: (a) is injured, and the officer is satisfied it may be detrimental to the person's medical condition for the person to submit to the breath test or breath analysis within the time mentioned in subsection (2); or (b) has a physical disability that prevents the person from providing a sufficient sample of breath for the completion of a breath test or breath analysis. 29AAD Further breath analyses (1) A person who has submitted to a breath analysis (whether or not the sample provided was sufficient) may be required by a police officer to submit to another breath analysis on the same occasion and the person must provide a sufficient sample of breath for that analysis. (2) A person who has submitted to a breath analysis may, after receiving the result of the initial analysis, request that a further analysis be carried out on one other sample of the person's breath, and the police officer who carried out the initial analysis (or another Traffic Act 1987 38 officer) must carry out an analysis on one further sample of the person's breath provided the sample of breath is sufficient. (3) A request under subsection (2) must be made without undue delay after the person receives the result of the initial analysis. 29AAE Offence of failing to submit to breath analysis (1) A person who is required under section 29AAC or 29AAD to submit to a breath analysis must not fail to provide a sample of breath sufficient for the analysis to be carried out. Traffic Act 1987 39 Traffic Act 1987 40 (7) A person is taken to have failed to provide a sufficient sample of breath for a breath analysis if the person's actions (or inactions) in any way prevent a police officer from requiring the person to submit to a breath analysis. (8) It is a defence to a prosecution for a relevant offence if the defendant satisfies the court: (a) it would have been detrimental to the defendant's medical condition to have submitted to a breath analysis at the time the person was required to do so; or (b) the defendant had other reasonable grounds for failing to submit to a breath analysis. (9) It is not reasonable grounds for failing to submit to a breath analysis that the defendant had consumed alcohol after the defendant ceased to drive a motor vehicle. Traffic Act 1987 41 29AAF Requirement for saliva test (1) A police officer may, in the following circumstances, require a person to submit to a saliva test, or more than one saliva test, for the purpose of analysis by an authorised analyst to determine whether there is a prohibited drug in the person's body: (a) the person is a driver required to pull over under section 29AAB(1)(b); (ab) the person is a driver who the officer has reasonable cause to suspect has committed an offence under this Act or the Motor Vehicles Act 1949; (b) the officer has reasonable cause to suspect the person was the driver of a motor vehicle that was involved in a crash on a road, road-related area or public place. (2) The officer may only require the person to submit to a saliva test if not more than 4 hours has expired since the driver was pulled over or the offence, or crash, mentioned in subsection (1) occurred. (3) If a police officer requires a person to submit to a saliva test, the person must comply with the directions given by the officer or another police officer. (4) If a police officer requires a person to submit to a saliva test and: (a) the person fails to provide a sufficient sample of saliva for the completion of the test and any subsequent analysis; or (b) the officer reasonably believes (whether as a result of the test or otherwise) that the person's body may contain a prohibited drug; the officer or another police officer may arrest the person without warrant and detain the person for the purpose of having a sample of blood or saliva taken for analysis. (5) A police officer must not require a person to submit to a saliva test under this section if it appears to the officer that the person: (a) is injured, and the officer is satisfied it may be detrimental to the person's medical condition for the person to submit to the saliva test within the time mentioned in subsection (2); or (b) has a physical disability that prevents the person from providing a sufficient sample of saliva for the completion of a saliva test. Traffic Act 1987 42 29AAFA Offence of failing to submit to saliva test (1) A person who is required under section 29AAF to submit to a saliva test must not fail to provide a sample of saliva sufficient for the test, and any subsequent analysis, to be carried out. (a) driving under the influence of alcohol or a drug; (b) driving with a prohibited drug in the body; (3) For subsection (2)(b), an offence for which an infringement notice was issued and not withdrawn is taken to be a previous finding of guilt for the offence. 29AAG Requirement to give blood sample (1) Subsection (2) applies if a police officer: (a) does not require a person to submit to a breath test or breath analysis for a reason mentioned in section 29AAC(6) and the officer reasonably believes that the concentration of alcohol in the person's breath or blood is such that the person has committed an offence against this Act; or Traffic Act 1987 43 (ab) has required the person to submit to a breath analysis under section 29AAC but the breath analysis instrument has failed to provide a result because of one of the following reasons: (i) the breath analysis instrument is malfunctioning; (ii) the person's BrAC is too high for the breath analysis instrument to measure; or (b) the officer has reasonable cause (whether or not as a result of a positive indication from a saliva test) to suspect the person's body contains a prohibited drug. (2) The officer may require the person to give a sample of blood for the purpose of analysis by an authorised analyst to determine if: (a) the person's blood contains alcohol in a concentration that constitutes the person having committed an offence against