Drink Driving Blood Samples (ACT)

Under the Road Transport (Alcohol and Drugs) Act 1977, a police officer can require a blood sample to be taken from a person suspected of driving under the influence of alcohol or a drug.

Taking a blood sample

A police officer can require a person to provide a blood sample in circumstances such as when:

• because of injury or otherwise, it would be dangerous or not practical for the person to have a breath or oral fluid test;
• the person is in hospital and a medical practitioner certifies in writing that a breath or oral fluid test would be prejudicial to the proper care and treatment of the person or dangerous to the person’s health;
• a breath analysis instrument is not available or in working order;
• an oral fluid analysis instrument is not available or in working order;
• the person cannot provide a sufficient sample of oral fluid for analysis.

The police officer can require the person to allow a blood sample to be taken by a doctor or nurse at a hospital. If the person is not at a hospital, the person can be placed in custody and taken to a hospital or sampling facility to have a blood sample taken. The sample must be taken within 2 hours of arrival at the hospital or facility.

A person who fails or refuses to allow a sample to be taken faces a maximum penalty of a fine of 30 penalty units ($4800).

The sample taker must:

• take the sample in the presence of a police officer;
• place the sample in a container;
• attach a label that states the sample taker’s name, the tested person’s name, and the date and time the sample was taken;
• ensure the container is sealed with a tamper-evident seal that has a unique identifying number on it;
• put the sealed container in a one-way box.

As soon as practicable after a blood sample has been taken, the sample must be analysed to determine the concentration of alcohol in the person’s blood or whether a prescribed drug is present in the person’s blood. If a police officer reasonably suspects the person is under the influence of a drug other than a prescribed drug or alcohol, the officer can request the sample be analysed to determine whether 1 or more drugs other than a prescribed drug are present, and if they are present, the concentration of them.

As soon as practicable after the blood is analysed, the person must be given a written statement that includes:

• the date and time the sample was taken;
• the unique identifying number on the tamper-evident seal;
• the place the sample was taken;
• the result of the analysis;
• where the preserved part of the sample is being held and the person’s rights in relation to it.

Accidents and blood samples

When a person is treated at a hospital for injuries sustained in a traffic incident, a doctor or nurse has a duty to take a sample of the person’s blood as soon as practicable but no later than 2 hours after the person arrives at the hospital. The Act allows a sample to be taken if the person is unconscious or incapable of giving or refusing permission because of their medical condition.

A sample must be taken from an accident patient, over the age of 15, including a:

• driver of a motor vehicle;
• driver or rider of any other vehicle, such as a bicycle or mobility scooter;
• pedestrian;
• horse rider.

If a doctor or nurse refuses to take a blood sample from a person when required, they face a maximum penalty of a fine of 10 penalty units ($1600).

Defence

It is a defence to prosecution for failing or refusing to provide a blood sample if a person can prove that the failure or refusal was based on religious or other conscientious grounds, or on medical grounds.

For advice or representation in any legal matter, please contact Armstrong Legal.