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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.
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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.
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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
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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.
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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
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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.
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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-
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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).
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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.
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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.
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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
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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.
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Section 55E(7) provides that only persons who have been
appropriately trained may be authorised under section 55E(6).
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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).
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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.
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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.
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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
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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.
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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).
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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
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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,
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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.
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