ROAD TRAFFIC (DRUG TESTS) AMENDMENT BILL 2004

Part 2—Amendment of Road Traffic Act 1961

3—Amendment of section 47A—Interpretation

(1) Section 47A(1)—after the definition of gross vehicle mass insert:

oral fluid includes saliva;

oral fluid analysis means an analysis of oral fluid by means of an apparatus of a kind approved by the Governor for the conduct of oral fluid analysis;

(2) Section 47A(1)—after the definition of prescribed concentration of alcohol insert:

prescribed drug means a substance declared by the regulations to be a prescribed drug;

4—Insertion of section 47BA—Driving under influence

After section 47B insert:

47BA—Driving while having prescribed drug present in blood

(1) A person must not—

(a) drive a motor vehicle; or

(b) attempt to put a motor vehicle in motion,

while there is present in his or her blood a prescribed drug.

Maximum penalty:

For a first offence—a fine of not less than $500 and not more than $900.

For a second offence—a fine of not less than $700 and not more than $1 200.

For a third or subsequent offence—a fine of not less than $1 200 and not more than $2 000.

(2) If a court convicts a person of an offence against subsection (1), the following provisions apply:

(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—

(i) in the case of a first offence—for such period, being not less than 6 months, as the court thinks fit;

(ii) in the case of a second offence—for such period, being not less than 12 months, as the court thinks fit;

(iii) in the case of a third or subsequent offence—for such period, being not less than 2 years, as the court thinks fit;

(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;

(c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;

(d) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section.

(3) In determining whether an offence is a first, second, third or subsequent offence for the purposes of this section, any previous offence against subsection (1) or section 47(1), 47B(1), 47E(3), 47EB(6) or 47I(14) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.

(4) In this section—

prescribed period means 5 years.

5—Insertion of section 47EB

After section 47EA insert:

47EB—Police may require oral fluid analysis

(1) If a member of the police force has required, or may require, a person to submit to an alcotest or breath analysis under section 47E, the member of the police force may require the person to submit to an oral fluid analysis (whether in addition to, or instead of, a requirement under that section).

(2) An oral fluid analysis required under subsection (1) must be commenced within two hours of the event giving rise to the belief referred to in section 47E(1).

(3) A member of the police force may give reasonable directions for the purpose of making a requirement under this section that the driver submit to an oral fluid analysis.

(4) A person must forthwith comply with a direction under subsection (3).

(5) The regulations may prescribe the manner in which an oral fluid analysis is to be conducted and may, for example, require that more than one sample of oral fluid is to be provided for analysis.

(6) A person required under this section to submit to an oral fluid analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid to be taken in accordance with the directions of a member of the police force.

Maximum penalty:

For a first offence—a fine of not less than $700 and not more than $1 200.

For a subsequent offence—a fine of not less than $1 500 and not more than $2 500.

(7) It is a defence to a prosecution under subsection (6) that—

(a) the requirement or direction to which the prosecution relates was not lawfully made; or

(b) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—

(i) the consequences of refusing or failing to comply with the requirement or direction; and

(ii) the person's right to request the taking of a blood sample under section 47F; or

(c) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.

(8) No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—

(a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or

(b) the person consumed a prescribed drug after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.

(9) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—

(a) a sample of the person's blood was taken in accordance with section 47F; or

(b) the person made a request as referred to in section 47F(2), but—

(i) a member of the police force failed to facilitate the taking of a sample of the person's blood as required by that section; or

(ii) a medical practitioner was not reasonably available for the purpose of taking such a sample; or

(c) the taking of a sample of the person's blood in accordance with section 47F was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.

(10) Where a court convicts a person of an offence against subsection (6), the following provisions apply:

(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—

(i) in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or

(ii) in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;

(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month;

(c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;

(11) In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous offence against subsection (6) or section 47(1), 47B(1), 47BA(1), 47E(3)or 47I(14) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.

(12) A sample of oral fluid taken under this section (and any other forensic material taken incidentally during an oral fluid analysis) must not be used for a purpose other than that contemplated by this section.

(13) The Commissioner of Police must ensure that a sample of oral fluid taken under this section (and any other forensic material taken incidentally during an oral fluid analysis) is destroyed as soon as practicable—

(a) if the person is convicted by a court on a charge of an offence against section 47BA(1) relating to the sample—at the end of period available for lodging an appeal against the conviction; or

(b) if the person is discharged or acquitted by a court on all charges of an offence against section 47BA(1) relating to the sample—at the end of period available for lodging an appeal against the discharge or acquittal; or

(c) if an appeal against a conviction or discharge or acquittal for an offence or offences against section 47BA(1) relating to the sample has been lodged within the period available for lodging such an appeal—after the appeal is withdrawn or lapses or is finally determined.

(14) If a sample of oral fluid taken under this section (and any other forensic material taken incidentally during an oral fluid analysis) is destroyed in accordance with this subsection (13), the Commissioner of Police must ensure that reasonable steps are taken, within 14 days of the destruction of the material, to give written notice of that fact to the person from whom the sample was obtained.

(15) In this section—

forensic material means any human material from which the person from whom the material was taken could be identified;

prescribed period means 5 years.

6—Amendment of section 47F—Police to facilitate blood test at request of incapacitated person etc

Section 47F(2)—after "section 47E" insert:

or 47EB

7—Amendment of section 47FA—Police to provide transport assistance for blood tests in certain circumstances outside Metropolitan Adelaide

Section 47F(1)(a)—after "analysis" insert:

, or oral fluid analysis,

8—Amendment of section 47FB—Blood tests by nurses where breath analysis or oral fluid analysis taken outside Metropolitan Adelaide

Section 47FB(1)—after "analysis" insert:

, or oral fluid analysis,

9—Amendment of section 47G—Evidence etc

(1) Section 47G(3a)—after "alcotests" insert:

or oral fluid analysis

(2) Section 47G—after subsection (8) insert:

(8a) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the presence of a prescribed drug indicated as being present in the blood of the defendant by an oral fluid analysis and, where the requirements and procedures in relation to oral fluid analysis under this Act, including subsection (8d), have been complied with, it must be presumed, in the absence of proof to the contrary, that the prescribed drug so indicated was present in the blood of the defendant at the time of the oral fluid analysis.

(8b) No evidence can be adduced in rebuttal of the presumption created by subsection (8a) except—

(a) evidence of the presence of a prescribed drug in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and

(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the oral fluid analysis gave a false indication of the presence of a prescribed drug in the blood of the defendant.

(8c) As soon as practicable after a person has submitted to an oral fluid analysis, the person conducting the oral fluid analysis must deliver to the other person a notice in the prescribed form specifying—

(a) the result of the oral fluid analysis; and

(b) the date and time of the oral fluid analysis; and

(8d) If a person has submitted to an oral fluid analysis and a prescribed drug is indicated as being present in the person's blood, the person who conducted the oral fluid analysis must forthwith—

(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the oral fluid analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and

(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.

(8e) A certificate purporting to be signed by a member of the police force and to certify that an oral fluid analysis apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing oral fluid analysis is, in the absence of proof to the contrary, proof of the matter so certified.

(8f) A certificate purporting to be signed by a member of the police force and to certify—

(a) that a person named in the certificate submitted to an oral fluid analysis on a specified day and at a specified time and that the oral fluid analysis indicated that a prescribed drug may then have been present in the blood of that person; and

(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (8d)(a); and

(i) the person did not make a request for an approved blood test kit in accordance with the regulations; or

(ii) at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (8d)(b),

is, in the absence of proof to the contrary, proof that the requirements of subsection (8d) were complied with in relation to the person.

(8g) A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (8d)(b) and the presumption under subsection (8a) will apply despite such a deficiency unless it is proved—

(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and

(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (8a).

(8h) If it is proved in proceedings that a prescribed drug was present in the defendant's blood at the time of an oral fluid analysis, it must be conclusively presumed that the prescribed drug was present in the defendant's blood throughout the period of two hours immediately preceding the oral fluid analysis.

(8i) A certificate purporting to be signed by an approved person certifying the usual effect of a particular prescribed drug on behaviour when consumed or used (including its effect on a person's ability to drive properly) is, in the absence of proof to the contrary, proof of the matter so certified.

(3) Section 47G(9)—after paragraph (b) insert:

(4) Section 47G—after subsection (9) insert:

(10) In this section—

approved person means a person who has been declared by the Governor by notice in the Gazette to be an approved person for the purposes of subsection (8i).

10—Insertion of section 47GB

After section 47GA insert:

47GB—Oral fluid analysis where consumption of prescribed drug occurs after driving

(1) This section applies to proceedings for an offence against section 47BA(1) in which the results of an oral fluid analysis under this Act are relied on to establish the commission of the offence.

(2) If in proceedings to which this section applies the defendant satisfies the court—

(a) that the defendant consumed a prescribed drug during the period (the relevant period) after the defendant last drove a motor vehicle or attempted to put a motor vehicle in motion and before the performance of the oral fluid analysis; and

(b) in a case where the defendant was required to submit to the oral fluid analysis because the defendant was, or may have been, required under section 47E(1)(d) to submit to an alcotest or breath analysis or both—

(i) that the defendant complied with the requirements of this Act in relation to the accident; and

(ii) that the prescribed drug was not consumed by the defendant during the relevant period while at the scene of the accident; and

(c) in a case where the defendant was required to submit to the oral fluid analysis because the defendant was, or may have been, required under section 47E(2a) to submit to an alcotest—that the prescribed drug was not consumed by the defendant during the relevant period in the vicinity of the breath testing station,

the court may, despite the other provisions of this Act, find the defendant not guilty of the offence charged.

11—Amendment of section 47H—Approval of apparatus for the purposes of breath analysis, alcotests and oral fluid analysis

Section 47(H)(1)—after paragraph (b) insert:

12—Amendment of section 47I—Compulsory blood tests

(1) Section 47I(8)—after "blood" (second occurring) insert:

, and whether a prescribed drug is present in the blood,

(2) Section 47I(9)—after "present" insert:

, and whether a prescribed drug is present,

(3) Section 47(11)—after paragraph (d) insert:

(da) the presence of a prescribed drug in the blood; and

(4) Section 47(13ba)—after "alcohol" insert:

, or the prescribed drug,

(5) Section 47(13bb)—delete "or 47B(1) that a concentration of alcohol was present in the defendant's blood at the time at which a sample of blood was taken under this section, it must be conclusively presumed that that concentration of alcohol" and substitute:

, 47B(1) or 47BA(1) that a concentration of alcohol, or a prescribed drug, was present in the defendant's blood at the time at which a sample of blood was taken under this section, it must be conclusively presumed that that concentration of alcohol, or the prescribed drug,

(6) Section 47(14b)—delete "or 47E(3)" and substitute:

, 47BA(1), 47E(3) or 47EB(6)

13—Amendment of section 47IA—Certain offenders to attend lectures

Section 47IA(3), definition of prescribed first or second offence—delete "47E(3)" and substitute:

47BA(1), 47E(3), 47EB(6)

14—Amendment of section 47J—Recurrent offenders

Section 47J(12), definition of prescribed offence—delete "47E(3)" and substitute:

47BA(1), 47E(3), 47EB(6)

South Australian Bills

ROAD TRAFFIC (DRUG TESTS) AMENDMENT BILL 2004