The Road Transport Act 2013 (particularly Schedule 3 of the Act) legislates the circumstances where a Police Officer can take a sample of breath, oral fluid or blood for testing. These samples are taken by Police where they suspect a person is drink driving, drug driving, driving whilst intoxicated, or has had a collision. These samples are used by Police as their evidence at Court to show that a person has committed an offence while driving. This article explains the different types of samples, the circumstances where a sample can be taken without consent, and other important information such as the timeframes that these samples must be taken within.

Power to Randomly Breath Test and Randomly Oral Fluid Test:

Schedule 3, Section 3 provides that the Police may require a person to submit to a breath test or to an oral fluid test if the officer has reasonable cause to believe that:

• A person was or is driving a motor vehicle on a road, or
• The person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion, or
• The person is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving on a road.

It is an offence to refuse to comply with Police’s request or signal made by Police to stop the vehicle for the purpose of testing which carries a maximum penalty of a $1,100.00 fine.

Types of Samples

1. Breath Test – This test is given roadside by Police with a handheld device. Police commonly tell people to count to 10 or blow into a straw when providing a Breath Test. The Breath Test gives Police an indication of a person’s blood alcohol level at the time of driving. After a positive indication on a breath test, Police will place the person under arrest and convey them to either a Police Station or Mobile Testing Unit (such as a ‘Booze Bus’) for a Breath Analysis Test. It is an offence to refuse to provide a breath test which carries a maximum penalty of $1,100.00 fine.

2. Breath Analysis Test (‘BAS’) – This is a test that is carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of the person’s breath, the concentration of alcohol in that person’s breath or blood. A BAS is required to be conducted at a Police Station or on a Mobile Testing Unit (such as a ‘Booze Bus’). When a BAS is being taken, a person is required to blow a sufficient sample of breath into a tube, the device analysis the sample and generates a printout result with the content of alcohol in a person’s breath. It is this test that is used by Police to evidence at Court to prove a person’s blood alcohol content at the time of driving. It is an offence to refuse or fail to provide a breath analysis sample to Police, and the penalties for refusing/failing are as serious as a High Range PCA.]

3. Sobriety Assessment – A sobriety assessment may be performed by a Police Officer after a Breath Test has been administered and the person has not given a positive indication for an illegal level of alcohol in their system. Police must have a reasonable belief that a person may be under the influence of a drug by the way of their driving behaviour, or their behaviour, condition or appearance at or during the breath test. It is an offence to refuse or fail to submit for a sobriety assessment and the offence carries a maximum penalty of a $1,100.00 fine.

4. Oral Fluid Test – This test is carried out by scraping an approved oral fluid testing device along someone’s tongue to determine whether there are any prescribed illicit drugs present in the person’s system. The test provides an indication of whether there are illicit drugs present in a person’s oral fluid. If there is a positive indication, the sample will be sent for further testing for an Oral Fluid Analysis. It is an offence to refuse to provide an oral fluid test which carries a maximum penalty of $1,100.00 fine.

5. Oral Fluid Analysis – After a positive indication on an Oral Fluid Test, the sample will be sent off for more detailed analysis. This test is used to determine, by way of an analysis of oral fluid, the presence of any prescribed illicit drug in that person’s oral fluid. It is this test that Police use at Court to evidence that a person had an illicit drug present in their system while driving. In practice, there can be delays with receiving the results of an Oral Fluid Analysis with results sometimes taking up to 6 months for confirmation.

6. Blood Test – This is where a sample of a person’s blood is taken, either with or without their consent, and an analysis is performed to determine whether illicit drugs are present in the system, and/or the amount of alcohol in that person’s blood. Blood Tests are commonly taken by Police if a person is unable to provide a sample of breath, such as following a collision. Police use blood tests as evidence at Court to establish that a person committed an offence whilst driving. It is an offence to refuse or fail to submit to the taking of a blood sample which carries a maximum penalty of $3,300.00 fine (for a first offence) and a $5,500.00 fine and/or 18 months imprisonment (for a second/subsequent offence).

There are a few circumstances in which a blood test can be taken by Police:

(a) Police may require a person to provide a sample of blood (whether or not they consent) if the person has been physically unable to submit to a breath test pursuant to Section 5A, Schedule 3.

(b) Police may require a person to provide a sample of blood (whether or not they consent) if the person has attempted to provide an oral fluid sample but has been physically unable to comply with that direction pursuant to Section 9, Schedule 3.

(c) Police may exercise powers under the Schedule to take a sample in relation to a person involved in an accident (‘an accident participant’) if the Police officer believes that one or more persons have died as a result of the accident, or it is more than likely that not that a person will die within 30 days as a consequence of the accident. In these circumstances, Police have powers to arrest, take and detain the person to hospital and powers to require the person to provide blood or urine samples for testing.

Testing Timeframes

Section 2 of Schedule 3 of the Act prescribes the strict time frames in which the above tests need to be administered to be able to be used as evidence by Police. Police are restricted from requiring a person to submit to a test, analysis or assessment or provide a sample:

• For breath tests and/or breath analysis tests – after a period of 2 hours from the occurrence of the event of which the officer was entitled to require a person to submit to a breath test,
• For oral fluid tests and/or oral fluid analysis – at any time after the expiration of 2 hours from the occurrence of the event of which the officer was entitled to require a person to submit to a breath test,
• For a blood sample where a person has been physically unable to submit for a breath test – at any time after the expiration of 4 hours from the occurrence of the event that entitled the officer to submit a person to a test.
• For a blood sample where a person has been physically unable to submit for an oral fluid sample – at any time after the expiration of 4 hours from the occurrence of the event that entitled the officer to submit a person to a test.
• For a blood or urine sample after an accident – at any time after the expiration of 4 hours after the occurrence of the accident.
• For a blood or urine sample after a sobriety assessment – at any time after the expiration of 4 hours from the occurrence of the event that entitled a police officer to submit to the breath test.

Use of Tests as Evidence

For PCA Offences (Low Range, Mid-Range and High-Range Drink Driving) the certificate from the BAS is ‘prima facie’ evidence that the person had that content of alcohol in their system at the time of driving. ‘Prima Facie’ is a legal term for ‘evidence on face value’ or evidence ‘on first appearance’. If a person’s reading from the BAS was 0.104, the certificate creates rebuttable presumption that the person’s blood alcohol content was 0.104 at the time of driving. The presumption of the level of alcohol in a persons’ system can be contested and rebutted with expert evidence that contradicts a person’s blood alcohol content at the time of driving.

If Police are unable to take the testing sample within the above timeframes, they are unable to proceed with charging a person with a PCA Offence or a Drive Whilst Present Illicit Drug Offence. Police still can, however, charge a person under Section 112 of the Road Transport Act 2013, being the offence of ‘Drive Under the Influence’, and use their observations of the person’s driving behaviour, body language, demeanour etc as the evidence of that person’s intoxication.

Requests for Police to Perform Additional Testing

A person who has provided a breath test or a breath analysis sample can request that Police also take a sample of blood for analysis to determine the concentration of alcohol in their blood at the person’s own expense. By doing so, this does not excuse the person from complying with their obligation to submit with a breath analysis at Police’s direction.

The blood test can be used by the person to confirm that they actually did have the prescribed content of alcohol that Police alleged they had while driving, or to contest it. For example, if the Police BAS gives a reading of 0.08 and the requested blood sample gives a reading of 0.078, the blood sample can be used to dispute the presumption of the person being Mid-Range (0.08 – 0.15 grams of alcohol in 210 litres of breath) while driving the vehicle, as the blood test indicates that they were only Low Range (0.05 – 0.079 grams of alcohol in 210 litres of breath) at the time of driving.

A person can also apply to an authorised laboratory for any sample of blood, urine or oral fluid taken to be sent for analysis at their own expense to a self-nominated medical practitioner or laboratory for further testing. For blood or urine samples this must occur within 12 months of the sample being taken, and for oral fluid samples must occur within 6 months after the sample was taken (subject to the Regulations).

Testing and Accidents

Where a person (driver or pedestrian) is involved in a traffic accident and is taken to hospital for treatment, the medical practitioner who attends to the patient is under a duty to take a sample of that person’s blood as soon as practicable and that sample can be taken whether or not the person consents. If there is not a medical practitioner available to take the sample, the sample is to be taken by Registered Nurse. It is an offence to refuse or fail to provide a sample after an accident, or to prevent a sample from being taken.

Other Testing Related Offences

Schedule 3 of the Act creates other offences in relation to testing and samples, such as making it an offence for a person to wilfully introduce or alter the concentration of alcohol or drugs in their system. The maximum penalties for these offences range from fines to up to 2 years imprisonment for a second or subsequent offence.

The Schedule includes further offences for destroying, tampering or interfering with samples or a failure to comply with sample handling procedures.

Defences

The Schedule provides certain defences to the prosecution of refusing or failing to submit to a breath/oral fluid test, breath or oral fluid analysis or sobriety assessment, where the defendant proves to the Court’s satisfaction that they were unable on medical grounds at the time required to do so to submit to the test, analysis or assessment concerned. For breath tests or breath analysis tests, this would need to involve a condition that prevents a person from providing a sufficient sample of breath to Police at the time of the test.

There are further defences available if a person refuses or fails to submit to a test where the person proves to the Court’s satisfaction that the offence was committed outside the testing timeframes outlined above.

For authorised sample takers, there are also defences available if they do not exercise their duty and take a sample as soon as practicable including that they did not believe the person had attended or been admitted to hospital in consequence of an accident, the requirement to take the sample of blood arose after expiration of 12 hours after accident occurred, or believed such on reasonable grounds.

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