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ROAD SAFETY (DRUG DRIVING) BILL 2003

                                                                  Road Safety (Drug Driving) Bill
Victorian Legislation and Parliamentary Documents




                                                                               Circulation Print

                                                                    EXPLANATORY MEMORANDUM


                                                                                Overview of the Bill
                                                    The main purposes of the Bill are to amend the Road Safety Act 1986 to--
                                                                  Allow Police and other authorised officers to require oral fluid
                                                                   samples from drivers at the roadside for the purposes of drug
                                                                   testing.
                                                                  Make it an offence for a person's oral fluid or blood to test
                                                                   positive (within 3 hours of driving) for certain illicit drugs that
                                                                   have become a major contributing factor in road accidents,
                                                                   namely methylamphetamine, which is a stimulant drug, and
                                                                   delta-9-tetrahydrocannabinol (often abbreviated to "THC"),
                                                                   which is the active component of cannabis.
                                                                  Extend the existing enforcement system relating to drink-
                                                                   driving to the new drug-driving offences, such as requirements
                                                                   to cooperate in tests, power for police to prevent drivers who
                                                                   test positive to the target drugs from continuing their journey,
                                                                   and proof of offences through use of certificate evidence.

                                                                                     Clause Notes
                                                    Clause 1     sets out the purpose of the amendments that the Bill makes to the
                                                                 Road Safety Act 1986. These are to provide for random drug
                                                                 testing for drivers and to create new offences for failing a drug
                                                                 test.

                                                    Clause 2     provides for commencement arrangements. All provisions
                                                                 (except clause 23, relating to the sunsetting of the drug-driving
                                                                 provisions of the Bill, which comes into operation on 1 July
                                                                 2005) will come into operation on a date or dates to be
                                                                 proclaimed. This will allow sufficient time for making the
                                                                 Regulations necessary to prescribe devices and procedures for
                                                                 oral fluid testing (see clause 22). Any unproclaimed provisions



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                                                    551128                                          BILL LA CIRCULATION 31/10/2003

 


 

(other than clause 23) will automatically come into operation on 1 December 2004. Victorian Legislation and Parliamentary Documents Clause 3 names the Road Safety Act 1986 as the Principal Act. This is for ease of reference. Clause 4 Sub-clause (1) inserts new definitions in section 3(1) of the Principal Act. The new definition of "drug-driving infringement" should be read in conjunction with sub-clause (3), which includes a drug- driving infringement in the definition of "traffic infringement" in section 3(1) of the Principal Act. The effect of the new definition of "drug-driving infringement" and sub-clause (3) is that if one or all of the new drug-driving offences inserted by clause 7 are prescribed in Regulations for the purposes of Part 7 of the Principal Act, then provided that they are a first offence and not an accompanying driver offence, they may be dealt with by way of a traffic infringement notice rather than formal court proceedings. (An "accompanying driver offence" is an offence under section 49(1) of the Principal Act which is committed by a person other than a commercial driving instructor who is accompanying a learner driver.) The new definition of "prescribed concentration of drugs" means, in the case of a prescribed illicit drug, any concentration of the drug in the blood or oral fluid of a person. This means that a person will be guilty of the new drug-driving offences created by clauses 7(1) and 7(4) if any prescribed illicit drug is detected in his or her blood or oral fluid. "prescribed illicit drug" is defined to mean methylamphetamine or delta-9-tetrahydrocannabinol. Sub-clause (2) amends the definition of "drink-driving infringement" in section 3(1) of the Principal Act to include new section 50(1E) (which is inserted by clause 8) as one of the provisions that may be considered in determining whether a drink-driving offence should be treated as a first offence because of the operation of section 50AA of the Principal Act. Sub-clause (2) should be read together with clause 8(2), which inserts new section 50(1E) into column 1 of the Table in section 50AA. The effect of sub-clause (2) and clause 8(2) is that a drink-driving infringement will be treated as a first offence even though the driver has previously committed a drug-driving offence created by clause 7, provided that the drug-driving offence was committed ten years or more before the commission of the drink-driving offence. 2

 


 

Sub-clause (3) amends the definition of "traffic infringement" in section 3(1) of the Principal Act to include a drug-driving infringement. Sub-clause (3) needs to be read in conjunction Victorian Legislation and Parliamentary Documents with the new definition of "drug-driving infringement" (see sub- clause (1) above). Clause 5 amends section 47 of the Act to extend the purposes of Part 5 of the Principal Act, which deals with offences involving alcohol or other drugs. Those purposes now include providing a simple and effective means of establishing the presence of illicit drugs in the blood, urine or oral fluid of a driver. Clause 6 Establishes two presumptions in respect of the drug-driving offences created by clause 7. Sub-clause (1) relates to the offence of driving or being in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in the driver's blood or oral fluid that is created by clause 7(1). It provides that if it is established that a certain drug was present in the blood or oral fluid of a driver at any time within 3 hours after such an offence is alleged to have been committed, it must be presumed, until the contrary is proved, that that drug was present in the person's blood or oral fluid at the time the offence is alleged to have been committed. Sub-clause (2) relates to the offences of providing a sample of oral fluid or blood within 3 hours of driving or being in charge of a motor vehicle that contains a prescribed illicit drug. It provides that for the purposes of those offences, it must be presumed that the drug contained in the sample was not due solely to the consumption or use of that drug after driving or being in charge of the vehicle. The reason why this presumption is relevant is that it is an element of those offences that the presence of the drug in the sample was not due solely to the consumption or use of the drug after driving or being in charge of the motor vehicle. Clause 7 inserts new drug-driving offences in section 49 of the Principal Act. Sub-clause (1) creates an offence of driving or being in charge of a motor vehicle where any prescribed illicit drug is present in the blood or oral fluid of the person. Sub-clause (2) creates an offence of refusing to provide an oral fluid sample or failing to comply with a requirement in relation to the provision of oral fluid. 3

 


 

Sub-clause (3) extends the offence of providing a sample of blood within 3 hours of driving or being in charge of a motor vehicle that contains the prescribed concentration of alcohol or Victorian Legislation and Parliamentary Documents more than the prescribed concentration of alcohol. This offence can now be established on the basis not only of a blood sample provided under section 56 (that is, where the sample was obtained from a person who is brought to a place for examination or treatment), but also on the basis of a blood sample that was taken under existing section 55B (that is, for the purposes of assessing whether the driver was impaired by drugs) or new section 55E (that is, for the purpose of assessing whether the driver's blood contained prescribed illicit drugs). Sub-clause (4) creates offences of providing a sample of oral fluid or blood within 3 hours of driving or being in charge of a motor vehicle that contains the prescribed illicit drugs. It is an element of these offences that the presence of the drug in the sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle. With respect to this element of the offence note the presumption in clause 6(2). Sub-clause (5) provides for the penalties relating to the offences created by sub-clauses (1) and (4). Those penalties are up to $600 for a first offence and up to $1200 for a second offence. Sub-clause (6) extends the defence in section 49(5) of the Principal Act that the result of the analysis was not correct to the offences created by sub-clause (4). Sub-clause (7) inserts a new section 49(6A) in the Principal Act, which provides that evidence as to the effect of the consumption or use of a drug on the defendant is admissible for the purpose of rebutting the presumption created by clause 6(2). Sub-clause (8) enables the court to find a defendant guilty of the lesser offence created by sub-clause (1) where it is not satisfied that the defendant is guilty of driving whilst impaired by a drug under existing section 49(1)(ba). Clause 8 provides for the cancellation of the driver licence or permit of a person who is convicted or found guilty of the offences created by clauses 7(1) and 7(4), and for the disqualification of such a person from obtaining a further licence or permit. Sub-clause (1) provides that persons convicted or found guilty of these offences may have their driver licence or permit cancelled for up to 3 months in the case of a first offence or 6 months in the case of a subsequent offence, and may be disqualified from obtaining a further licence or permit for that time. 4

 


 

Sub-clause (2) assists in determining whether one of these offences is a first or subsequent offence for the purposes of the licence cancellation and disqualification provision in sub- Victorian Legislation and Parliamentary Documents clause (1). The effect of sub-clause (2) is that if a previous offence was committed ten years or more prior to the commission of the current offence, the current offence is to be treated as a first offence for the purposes of the licence cancellation and disqualification provision in sub-clause (1). Clause 9 provides that previous convictions or findings of guilt for drug- driving offences are not to be regarded as prior offences for the purpose of section 50AAA of the Principal Act. Section 50AAA relates to the imposition of an alcohol interlock condition when a person is re-licensed after a drink-driving offence. If a person's driver licence or permit is cancelled as a result of a drink-driving offence which is not a first offence then when the court grants a re-licensing application under section 50(4) of the Principal Act, it must direct the Roads Corporation to impose a condition that the person only drive a motor vehicle that is fitted with an approved alcohol interlock (section 50AAA(3)(b)). If, on the other hand, the drink-driving offence for which the licence was cancelled was a first offence, and the concentration of alcohol in the person's blood at the relevant time was 015 grams or more per 100 millilitres of blood, the court has a discretion whether or not to impose an alcohol interlock condition (section 50AAA(2)). Clause 10 includes the drug-driving offences created by clauses 7(1) and 7(4) in the list of offences that are subject to section 50A of the Principal Act. Section 50A sets out the circumstances in which a driver who is convicted or found guilty of an offence under section 49(1) of the Principal Act is required to complete an accredited driver education program. Clause 11 amends the reference in sections 53, 54 and 55A of the Principal Act to preliminary breath testing stations to reflect the fact that they may now also be used to conduct preliminary oral fluid tests. As preliminary oral fluid tests will take longer than preliminary breath tests, the phrase "in quick succession" in section 54(2)(a) of the Act is no longer appropriate and has been deleted. Clause 12 provides that the requirement to remain at a place or vehicle where a sample of breath is to be furnished includes a requirement to remain there for so as long as is necessary to provide any further breath samples that may be required under section 55(2A). 5

 


 

Clause 13 provides for preliminary oral fluid testing and oral fluid testing and analysis, by inserting new sections 55D and 55E in the Principal Act. Victorian Legislation and Parliamentary Documents Section 55D(1) enables a member of the police force to require oral fluid samples from drivers of motor vehicles for the purposes of preliminary testing. A person is eligible for such testing if he or she is-- found driving or in charge of a motor vehicle; the driver of a motor vehicle that has been required to stop at a preliminary testing station; believed on reasonable grounds to have driven or been in charge in the preceding three hours of a motor vehicle that has been involved in an accident; or believed on reasonable grounds to have been, in the preceding three hours, an occupant of a motor vehicle that has been involved in an accident, and it has not been satisfactorily established which of the occupants of the motor vehicle was the driver. Section 55D(2) enables authorised officers of the Roads Corporation or the Department of Infrastructure to require persons driving or in charge of commercial motor vehicles to undergo a preliminary oral fluid test. Section 55D(3) provides that a preliminary oral fluid test must be carried out in accordance with the prescribed procedure. This procedure will be specified in Regulations to be made under the Principal Act (see clause 22). Section 55D(4) provides that only appropriately trained officers may be authorised under section 55D(2). Section 55D(5) provides that the prescribed device used in preliminary oral fluid tests may be comprised of a collection unit and a testing unit and one or more other parts. The device or devices that may be used for the purposes of preliminary oral fluid tests will be specified in Regulations to be made under the Principal Act (see clause 22). Section 55D(6) specifies what a person who is required to undergo a preliminary oral fluid test must do. 6

 


 

Section 55D(7) requires a person undergoing a preliminary oral fluid test to remain at the testing place until the sample of oral fluid has been tested. This ensures that if the sample tests Victorian Legislation and Parliamentary Documents positive to the prescribed illicit drugs, the member of the police force or authorised officer who conducted the test is able to require the person to provide a second oral fluid sample for testing and analysis under new section 55E (see section 55E(2)(a)). Section 55D(8) provides that a person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle. Section 55E(1) defines the terms "authorised officer" and "enforcement officer" that are used in section 55E. Section 55E(2) provides that if a preliminary oral fluid test indicates that a person's oral fluid contains a prescribed illicit drug, or if a person refuses or fails to undergo a preliminary oral fluid test, then that person may be required to provide a sample of oral fluid for testing and analysis. The sample of oral fluid required under this provision will only be sent for analysis if the test of the sample indicates that it contains a prescribed illicit drug. It will be the results of the analysis that form the basis of any charge. Sub-section 55E(3) provides that a person who is required to undergo an assessment of drug impairment or to furnish a sample of breath for analysis under sections 55A and 55 of the Principal Act respectively may also be required to provide a sample of oral fluid for testing and analysis. The sample of oral fluid required under this provision will only be sent for analysis if the test of the sample indicates that it contains a prescribed illicit drug. It will be the results of the analysis that form the basis of any charge. Section 55E(4) provides that the provision of a sample of oral fluid under section 55E must be carried out in accordance with the prescribed procedure. This procedure will be specified in Regulations to be made under the Principal Act (see clause 22). Section 55E(5) specifies the circumstances in which the person who required a sample of oral fluid under sections 55E(2) or (3) may require the provision of one or more further samples. Section 55E(6) provides that only members of the police force or officers of the Roads Corporation or the Department of Infrastructure who have been specifically authorised may carry out the procedure for the provision of a sample of oral fluid under section 55E. 7

 


 

Section 55E(7) provides that only persons who have been appropriately trained may be authorised under section 55E(6). Victorian Legislation and Parliamentary Documents Section 55E(8) provides that the prescribed device used in oral fluid tests conducted under section 55E may be comprised of a collection unit and a testing unit and one or more other parts. The device or devices that may be used for the purposes of these tests will be specified in Regulations to be made under the Principal Act (see clause 22). Section 55E(9) specifies what a person who is required to provide a sample of oral fluid under section 55E must do. Section 55E(10) provides that a person is not obliged to provide a sample of oral fluid under section 55E if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle. Section 55E(11) provides that if the test of a sample of oral fluid provided under section 55E indicates that the person's oral fluid contains a prescribed illicit drug, a part of the sample must be provided to the member of the police force or enforcement officer who required the sample to be provided, and another part of the sample must be provided to the person by whom the sample was provided. Section 55E(12) provides that a person must not be convicted or found guilty of refusing to provide a sample of oral fluid if the refusal occurred for a substantial reason other than the desire to avoid providing incriminating evidence. Section 55E(13) provides for when a person who has been required to provide a sample of oral fluid under section 55E(2) or (3) may be required to provide a sample of blood for analysis. Section 55E(14) requires that part of a blood sample taken under section 55E(13) must be provided to the person who required the sample to be taken, and another part of the sample must be provided to the person from whom it was taken. Section 55E(15) provides that a person who allows the taking of a blood sample under section 55E(13) must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with section 55E. Section 55E(16) creates an offence of hindering or obstructing the taking of a blood sample in accordance with section 55E(13). Sub-section 55E(17) confers immunity from legal action on specified persons involved in taking blood samples under section 55E(13) (see also clause 21). 8

 


 

Section 55E(18) enables a person who is required to provide a sample of oral fluid under section 55E to request the taking and analysis of a blood sample. Victorian Legislation and Parliamentary Documents Section 55E(19) requires that a part of a blood sample taken under section 55E(18) must be delivered to the person who required the oral fluid sample to be provided under section 55E. Section 55E(20) provides that section 55E(18) does not relieve a person from liability for refusing to provide a sample of oral fluid. Section 55E(21) provides that a failure to comply with a request under section 55E(18) does not render evidence from an oral fluid sample provided in accordance with a requirement made under section 55E inadmissible, provided that reasonable efforts were made to comply with the request. Sub-section 55E(22) provides for means of establishing the authorisation of members of the police force or officers of the Roads Corporation or the Department of Infrastructure for the purposes of section 55D and 55E. Clause 14 amends the evidentiary provisions regarding blood tests contained in section 57 of the Principal Act. Sub-clause (1) amends section 57(9) of the Principal Act to include new section 55E in the list of provisions under which a blood sample may be taken. The effect of this amendment is that the prohibition in section 57(9) on the taking of blood samples and tendering evidence of the results of analysis of blood samples does not apply to blood samples taken in accordance with section 55E. Sub-clause (2) provides that the evidence regarding a blood sample that is permitted to be given by section 57(9) of the Principal Act is not admissible in any other legal proceedings except for the purposes of the Accident Compensation Act 1985 (see in particular section 82(4A)(c) of that Act) or the Transport Accident Act 1986 (see in particular sections 40, 40A and 93(6A) of that Act). Sub-clause (2) also provides that this restriction on the admissibility of evidence regarding blood samples does not limit the operation of section 56(6) of the Principal Act. Section 56(6) provides for the circumstances in which evidence may be given regarding a blood sample that has been taken from a person who has been injured in an accident involving a motor vehicle. 9

 


 

Clause 15 amends the evidentiary provisions regarding urine tests contained in section 57A of the Principal Act. The main purpose of these amendments is to ensure that as far as possible there is Victorian Legislation and Parliamentary Documents consistency between the provisions dealing with the admissibility of blood samples and the provisions dealing with the admissibility of urine samples. Sub-clauses (1) and (2) extend the range of legal proceedings in which evidence obtained from a urine test taken under the Principal Act may be admitted under section 57A(2). Those proceedings now include not only hearings for an offence against section 49(1) of the Act, but also all the other types of legal proceedings in which evidence obtained from a blood test taken under the Act may be admitted that are specified in section 57(2). Sub-clause (3) provides that the evidence regarding a urine sample that is permitted to be given by section 57A(2) of the Principal Act is not admissible in any other legal proceedings. Clause 16 inserts a new section 57B in the Principal Act to include additional evidentiary provisions regarding oral fluid tests. Section 57B(1) provides definitions of the terms "approved analyst" and "properly qualified analyst". An "approved analyst" means a person who has been approved as a properly qualified analyst for the purposes of section 57B. A "properly qualified analyst" includes both an approved analyst and person considered by the court to be qualified to carry out an oral fluid analysis and to express an expert opinion on the results of that analysis. Section 57B(2) provides that evidence regarding an oral fluid sample provided under section 55E may be given in a hearing for any offence under section 49(1) of the Principal Act and other specified categories of legal proceedings. Section 57B(3) provides that a certificate signed by a person who carried out the procedure in the course of which a sample of oral fluid was provided is admissible in evidence in any hearing referred to in section 57B(2), and in the absence of evidence to the contrary, is proof of the facts and matters contained within it. Section 57B(4) provides that a certificate signed by an approved analyst is admissible in evidence in any hearing referred to in section 57B(2), and in the absence of evidence to the contrary, is proof of the facts and matters contained within it. Sections 57B(5) to (10) specify procedures for service of certificates given under section 57B on the accused and provide for cross-examination of witnesses regarding the facts and matters contained within those certificates. 10

 


 

Section 57B(11) provides that evidence regarding oral fluid samples provided under section 55E is not admissible in legal proceedings other than those referred to in section 57B(2). Victorian Legislation and Parliamentary Documents Clause 17 extends the range of legal proceedings in which evidence obtained from a breath test taken under the Act may be admitted under section 58(1) so as to include proceedings conducted by a coroner. The main purpose of this amendment is to ensure that as far as possible there is consistency between the provisions dealing with the admissibility of blood samples and the provisions dealing with the admissibility of breath samples. Clause 18 makes it an offence to intentionally or recklessly do any of the following-- supply, or cause to be supplied, a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Principal Act to a person to be analysed for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample; carry out an analysis of a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Principal Act for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample; or include, or cause the inclusion of, information derived from the analysis of a sample of blood, urine or oral fluid taken from, or furnished or provided by, a person under Part 5 of the Principal Act for a purpose other than determining whether alcohol or any other drug is present in the sample or the level of concentration in which alcohol or any other drug is present in the sample on a DNA database. Clause 19 provides that a member of the police force may form the opinion that a person is, by reason of his or her physical or mental condition, incapable of having proper control of a motor vehicle, on the basis of the results of the analysis of a breath sample conducted under section 55 or on the basis of a test of an oral fluid sample conducted under new section 55E. Clause 19 also makes it clear that this does not limit the grounds on which a 11

 


 

member of the police force may form that opinion. Under section 62(1) of the Principal Act, a member of the police force who is of the opinion on reasonable grounds that a person, Victorian Legislation and Parliamentary Documents driving or about to drive a motor vehicle, is by reason of his or her physical or mental condition incapable of having proper control of the motor vehicle may forbid that person to drive while so incapable, require the person to deliver up the keys to the vehicle and take necessary steps to render the vehicle immobile or remove it to a place of safety. Clause 20 extends the provisions in section 89A of the Principal Act that presently apply to drink-driving infringements and excessive speed infringements to drug-driving infringements. The term "drug-driving infringements" is defined in clause 4(1). The main effect of this is that a traffic infringement notice that is issued in respect of a drug-driving infringement takes effect, 28 days after the date of the notice, as a conviction for the relevant drug- driving offence, unless the person to whom the notice was issued objects within that time, or applies under section 89B for an extension of the time for objecting. Clause 21 inserts new section 94B(2) in the Act, which states that it is the intention of section 55E(17) to alter or vary section 85 of the Constitution Act 1975. The effect of section 55E(17) will be to confer immunity on certain persons for carrying out certain procedures under the Act, and thereby prevent the bringing of proceedings against those persons in the Supreme Court in respect of those procedures. The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of drugs in the body of a driver to do so without fear of litigation by persons who are the subject of the tests that are authorised by this Bill. Clause 22 amends Schedule 2 to the Principal Act to allow for the making of regulations relating to the testing and analysis of oral fluid samples. Clause 23 repeals the provisions in the Bill that relate to drug-driving and makes a number of amendments consequential on these repealing provisions. Clause 23 comes into operation on 1 July 2005. 12

 


 

 


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