Victorian Numbered Acts Victorian Numbered Acts(1) If a rail safety worker undergoes a preliminary breath test when required by a transport safety officer or a member of the police force under section 77 to do so and—
(a) the test in the opinion of the transport safety officer or member of the police force in whose presence it is made indicates that the rail safety worker's breath contains alcohol; or
(b) the rail safety worker, in the opinion of the transport safety officer or member of the police force, refuses or fails to carry out the test in the manner specified in section 77(4)—
any transport safety officer or, if the requirement for the preliminary breath test was made by a member of the police force, any member of the police force may require the rail safety worker to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the rail safety worker to accompany a transport safety officer or member of the police force to a police station or other place where the sample of breath is to be furnished and to remain there until the rail safety worker has furnished the sample of breath and been given the certificate referred to in sub-section (5) or until 3 hours after the carrying out of the rail safety work, whichever is sooner.
(2) A transport safety officer or member of the police force may require any rail safety worker who is required to undergo a drug assessment under section 79 to furnish a sample of breath for analysis by a breath analysing instrument and may, for that purpose, require the rail safety worker to remain at the place at which the rail safety worker is required to remain for the purposes of the drug assessment until—
(a) the person has furnished the sample of breath and been given the certificate referred to in sub-section (5) and the drug assessment has been carried out; or
(b) 3 hours after the carrying out of rail safety work—
whichever is the sooner.
(3) The person who required a sample of breath under sub-section (1) or (2) may require the rail safety worker who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever.
(4) A breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.
(5) As soon as practicable after a sample of a rail safety worker's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the rail safety worker whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.
(6) A rail safety worker who furnishes a sample of breath under this section must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.
(7) A rail safety worker is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the rail safety worker last carried out rail safety work.
(8) A rail safety worker must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.
(9) The person who required a sample of breath under sub-section (1), (2) or (3) from a rail safety worker may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of blood for analysis if it appears to him or her that—
(a) the rail safety worker is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or
(b) the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by the rail safety worker for any reason whatsoever—
and for that purpose may further require that rail safety worker to accompany a transport safety officer or a member of the police force to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the carrying out of the rail safety work, whichever is sooner.
(10) The registered medical practitioner or approved health professional who takes a sample of blood under sub-section (9) must deliver a part of the sample to the person who required it to be taken and another part to the rail safety worker from whom it was taken.
(11) A rail safety worker who allows the taking of a sample of his or her blood in accordance with sub-section (9) must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis.
(12) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with sub-section (9).
Penalty: 12 penalty units.
(13) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under sub-section (9).
(14) A rail safety worker who is required under
this section to furnish a sample of breath for analysis may, immediately after
being given the certificate referred to in sub-section (5), request the person
making the requirement to arrange for the taking in the presence of a member
of the police force of a sample of the rail safety worker's blood for analysis
at the rail safety worker's own expense by a registered medical practitioner
or an approved health professional nominated by the member of the police
force.
s. 78
(15) A part of a sample of blood taken under sub-section (14) must be delivered to the person who required the sample of breath under this section.
(16) Nothing in sub-section (14) relieves a rail safety worker from any penalty under section 76(1)(e) for refusing to furnish a sample of breath.
(17) Evidence derived from a sample of breath furnished in accordance with a requirement made under this section is not rendered inadmissible by a failure to comply with a request under sub-section (14) if reasonable efforts were made to comply with the request.
(18) If the question whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a rail safety worker is relevant on a hearing for an offence against section 76(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this sub-section, a document—
(a) purporting to be a print-out produced by that instrument in respect of that sample; and
(b) purporting to be signed by the person who operated the instrument—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(19) A document referred to in sub-section (18) does not cease to be admissible in evidence or, in the absence of evidence to the contrary, to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety Act 2006 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety Act 2006 .