Victorian Numbered Acts Victorian Numbered Acts(1) A rail safety worker is guilty of an offence if he or she—
(a) carries out rail safety work while more than the prescribed concentration of alcohol is present in his or her blood or breath; or
(b) carries out rail safety work while impaired by a drug; or
(c) refuses to undergo a preliminary breath test in accordance with section 77 when required under that section to do so; or
(d) refuses to undergo an assessment of drug impairment in accordance with section 79 when required under that section to do so or refuses to comply with any other requirement made under section 79(1); or
(e) refuses to comply with a requirement made under section 78(1), (2) or (9); or
(f) refuses to comply with a requirement made under section 80(1); or
(g) within 3 hours after having carried out rail safety work furnishes a sample of breath for analysis by a breath analysing instrument under section 78 and—
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after having carried out the rail safety work; or
(h) has had a sample of blood taken from him or her in accordance with section 78 or 82 within 3 hours after having carried out rail safety work and—
(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 83 and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample; and
(ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after having carried out the rail safety work.
(2) A rail safety worker may be convicted or found guilty of an offence under sub-section (1)(c), (d), (e) or (f) even if—
(a) in the case of an offence under paragraph (c), a prescribed device was not presented to the worker at the time of the making of the requirement; and
(b) in the case of an offence under paragraph (d)—
(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; and
(ii) a person authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made; and
(c) in the case of an offence under paragraph (e)—
(i) a breath analysing instrument was not available at the place where the requirement was made at the time it was made; and
(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made; and
(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and
(d) in the case of an offence under paragraph (f)—
(i) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and
(ii) the person requiring a sample of urine had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; and
(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made.
(3) To avoid doubt, in proceedings for an offence under sub-section (1)(e) a state of affairs or circumstance referred to in sub-section (2)(c)(i) or (ii) is not a reason of a substantial character for a refusal for the purposes of section 78(8).
(4) A rail safety worker who is guilty of an offence under sub-section (1) is liable—
(a) in the case of a first offence, to a fine not exceeding 12 penalty units; and
(b) in the case of a subsequent offence, to a fine not exceeding 25 penalty units or to imprisonment for a term of not more than 3 months.
(5) In proceedings for an offence under sub-section (1)(b), proof that—
(a) the rail safety worker was carrying out rail safety work; and
(b) one or more drugs were present in the rail safety worker's body at the time at which he or she carried out rail safety work; and
(c) the behaviour of the rail safety worker on an assessment of drug impairment carried out under section 79 was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and
(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to carry out rail safety work properly—
is, in the absence of evidence to the contrary, proof that the rail safety worker carried out rail safety work while impaired by a drug.
(6) It is a defence to a charge under sub-section (1)(g) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
(7) It is a defence to a charge under sub-section (1)(h) for the person charged to prove that the result of the analysis was not a correct result.
(8) In any proceedings for an offence under sub-section (1)(g) or (h) evidence as to the effect of the consumption of alcohol on the defendant is admissible for the purpose of rebutting the presumption created by section 71(3) but is otherwise inadmissible.
(9) On convicting a rail safety worker, or finding a rail safety worker guilty, of an offence under sub-section (1) the court must cause to be entered in the records of the court—
(a) in the case of an offence under sub-section (1)(a), the level of concentration of alcohol found to be present in that person's blood or breath; and
(b) in the case of an offence under sub-section (1)(g), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and
(c) in the case of an offence under sub-section (1)(h), the level of concentration of alcohol found to be present in the sample of blood.