97Admissibility of test results in certain proceedings

97 Admissibility of test results in certain proceedings (1) Evidence derived from a sample obtained in accordance with a testing direction is inadmissible in any proceeding in a court, tribunal or before a person or body authorised to hear and receive evidence. (2) Subsection (1) does not apply— (a) in a proceeding under the **Accident Compensation Act 1985** to rebut or support an allegation that the presence of alcohol or a drug of dependence contributed to the injury in respect of which the proceeding was commenced; or (b) in a prosecution under the **Occupational Health and Safety Act 2004** to rebut or support an allegation that the presence of alcohol or a drug of dependence contributed to the occurrence of the act, matter or thing constituting the offence in respect of which the prosecution is brought; or (c) in a proceeding arising out of, or connected with— (i) an inquiry or investigation of a police officer (other than a special constable) or a protective services officer under section 67, Division 6 of Part 4, Part 7, Part 9 or Part 10; or (ii) an investigation of a special constable under section 195; or (iii) a determination under the **Public Administration Act 2004** or an industrial instrument applying to Victoria Police employees as to whether a Victoria Police employee has engaged in unsatisfactory performance, misconduct or serious misconduct; or (d) in an investigation by the IBAC or a proceeding arising out of, or connected with, an investigation by the IBAC that relates to a member of Victoria Police personnel; or (e) in a proceeding arising out of, or connected with, a critical incident (including a police tort claim). (3) Subsection (2) does not apply to evidence derived from a sample obtained in accordance with section 86(2) if the person from whom the sample was taken refuses or has refused to consent to the use of the evidence. (4) To avoid doubt, subsection (2) applies to evidence derived from a sample obtained in accordance with a testing direction whether or not that evidence was used in any previous inquiry, investigation, determination or proceeding of a kind referred to in subsection (2). ***proceeding*** includes a coronial inquest or inquiry.