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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 43
As laid on the table and read a first time, 28 October 2004
South Australia
Statutes
Amendment (Drink Driving) Bill 2004
A Bill For
An Act to amend the Motor Vehicles Act 1959 and
the Road Traffic Act 1961.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Motor
Vehicles Act 1959
4 Amendment of section 81C—Disqualification
for certain drink driving offences
5 Amendment of section 93—Notice to be
given to Registrar
Part 3—Amendment of Road
Traffic Act 1961
6 Amendment of section 47E—Police may
require alcotest or breath analysis
7 Amendment of section 47GA—Breath
analysis where drinking occurs after driving
8 Insertion of sections 47IAA and
47IAB
47IAA Power of police to impose immediate
licence disqualification or suspension
47IAB Application to Court to have
disqualification or suspension lifted
Schedule 1—Transitional
provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Statutes Amendment (Drink Driving)
Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Motor Vehicles Act 1959
4—Amendment of section 81C—Disqualification for certain drink driving offences
(1) Section 81C(2)(a)—delete
subparagraphs (i), (ii) and (iii) and substitute:
(i) if the offence is
a second offence—3 months; or
(ii) if the offence is a third offence—6 months; or
(iii) if the offence is a subsequent offence—12 months; and
(2) Section 81C(7)—delete
"will be taken into account, but only if the previous offence was
committed" and substitute:
or that has been expiated will be taken into account, but
only if the previous offence was committed or, in the case of an offence that
has been expiated, was alleged to have been committed, by the person
5—Amendment of section 93—Notice to be given to Registrar
(1) Section 93(1)—after paragraph (c) insert:
or
(d) makes an order under section 47IAB of the Road
Traffic Act 1961,
(2) Section 93(1)—delete "of the finding
or order (including the period of any disqualification)" and substitute:
and effect of the finding or order
Part 3—Amendment of Road Traffic Act 1961
6—Amendment of section 47E—Police may require alcotest or breath analysis
(1) Section 47E(1) to
(2c) (inclusive)—delete subsections (1) to (2c) (inclusive) and substitute:
(1) Subject to this section, if a member of the
police force (whether or not performing duties at or in connection with a
breath testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in
motion; or
(c) is acting, or has acted, as a qualified
passenger for a learner driver,
the member of the police force may require the person to
submit to an alcotest or a breath analysis, or both.
(2) A
member of the police force may direct a person driving a motor vehicle to stop
the vehicle and may give other reasonable directions for the purpose of making
a requirement under this section that a person submit to an alcotest or a
breath analysis.
(2a) A person must forthwith comply with a direction under
subsection (2).
(2b) An
alcotest or a breath analysis to which a person has been required to submit
under subsection (1) may not, in any event, be commenced more than 2 hours
after the conduct of the person giving rise to the requirement.
(2) Section 47E(2f)—delete
subsection (2f) and substitute:
(2f) If, in the exercise of powers conferred by
subsection (2), a member of the police force directs the driver of a motor
vehicle to stop the vehicle—
(a) if
the member of the police force is driving or riding in or on a vehicle at the
time the direction is given—the vehicle must be marked as a police vehicle; or
(b) in any other case—the member of the police force that gives
the direction must be in uniform.
(3) Section
47E(8), (9) and (10)—delete subsections (8), (9) and
(10)
7—Amendment of section 47GA—Breath analysis where drinking occurs after driving
(1) Section 47GA(2)(a),
(b) and (c)—delete paragraphs (a), (b) and (c) and substitute:
(a) that the defendant consumed alcohol during the relevant
period; and
(b) that
the alcohol was not consumed by the defendant after a member of the police
force first exercised powers under section 47E preliminary to the performance
of the breath analysis; and
(c) where
the requirement to submit to the breath analysis was made after the defendant's
involvement as a driver in an accident—that the defendant discharged the duties
under this Act required to be discharged at the scene of an accident by a
driver of a vehicle involved in the accident; and
(2) Section 47GA—after subsection (2) insert:
(3) In subsection (2)—
relevant period means the period between—
(a) the conduct of the defendant giving rise to the making of
the requirement under section 47E(1) that the defendant submit to the breath
analysis; and
(b) the performance of the breath analysis.
8—Insertion of sections 47IAA and 47IAB
After section 47I insert:
47IAA—Power
of police to impose immediate licence disqualification or suspension
(1) This section applies to the following
offences:
(a) a category 2 offence;
(b) a category 3 offence;
(c) an offence against section 47E(3);
(d) an offence against section 47I(14) committed by a person who
was the driver of a motor vehicle involved in the accident.
(2) Subject
to this section, if a member of the police force reasonably believes that a
person has, after the commencement of this section, committed an offence to
which this section applies, the police officer may give the person a notice of
immediate licence disqualification or suspension in the prescribed form.
(3) The
notice must specify the offence to which the notice relates.
(4) If a person is given a notice of immediate
licence disqualification or suspension under subsection (2)—
(a) in the case of a person who does not hold a driver's licence—the
person is disqualified from holding or obtaining a driver's licence for the
relevant period; or
(b) in the case of a person who holds a driver's licence—the
person's driver's licence is suspended for the relevant period.
(5) The
Commissioner of Police must ensure that prescribed particulars of a notice of
immediate licence disqualification or suspension given to a person under this
section are forwarded to the Registrar of Motor Vehicles.
(6) The
Registrar of Motor Vehicles must, on receiving particulars of a notice of
immediate licence disqualification or suspension from the Commissioner of
Police, send, by post, a notice to the person of the name and address specified
by the Commissioner containing the prescribed particulars of the notice of
immediate licence disqualification or suspension.
(7) If
the person is not charged with the offence specified in the notice as the
offence to which the notice relates but is charged with another offence to
which this section applies, that offence will then be taken to be the offence
to which the notice relates.
(8) The
period for which a disqualification or suspension has applied to a person under
this section as a result of the person having been given a notice of immediate
licence disqualification or suspension will be counted as part of any period of
disqualification that is imposed on the person in relation to the offence to
which the notice relates by order of a court under this Division.
(9) Subject
to subsection (10), no compensation is payable by the Crown or a police
officer in respect of the exercise of powers under this section.
(10) Subsection (9)
does not protect a police officer from liability in respect of the exercise of
powers otherwise than in good faith.
(11) For the purposes of this section—
(a) the relevant period commences—
(i) at the time at
which the person is given the notice referred to in subsection (2); or
(ii) if
the person is already disqualified from holding or obtaining a driver's licence
or holds a driver's licence that is suspended, at the end of that period of
disqualification or suspension; and
(b) the relevant period ends—
(i) if the Magistrates Court, on application
under section 47IAB, makes an order that the person given the notice is
not disqualified, or that the driver's licence held by the person is not
suspended, by the notice; or
(ii) if the Magistrates Court reduces the period of
disqualification or suspension on application under section 47IAB, when
that period ends; or
(iii) if proceedings for the offence to which the notice relates
are determined by a court or are withdrawn or otherwise discontinued; or
(iv) in any event—
(A) if
the offence to which the notice relates is a category 2 offence—at the end of 6
months from the time at which the notice was given; or
(B) in any other case—at the end of 12 months from the time at
which the notice was given.
47IAB—Application
to Court to have disqualification or suspension lifted
(1) A person who has been given a notice of
immediate licence disqualification or suspension under section 47IAA or
has been sent particulars of such a notice by the Registrar of Motor Vehicles
may apply to the Magistrates Court for an order—
(a) that the person is not disqualified, or the person's
driver's licence is not suspended, by the notice; or
(b) reducing the period of disqualification or suspension
applicable under the notice.
(2) The Magistrates Court may, on an
application under subsection (1), make an order—
(a) that
the person is not disqualified, or the person's driver's licence is not
suspended, by the notice if the Court is satisfied, on the basis of evidence
given by or on behalf of the applicant, that there is a reasonable prospect
that the applicant would, in proceedings for the offence to which the notice
relates, be acquitted of the offence and the evidence before the Court does not
suggest that the applicant may be guilty of another offence to which
section 47IAA applies; or
(b) reducing the period of disqualification or suspension
applicable under the notice if—
(i) the offence to which the notice relates is
a category 2 or category 3 offence that is a first offence and the Court is
satisfied, on the basis of evidence given by or on behalf of the applicant,
that there is a reasonable prospect that the applicant might, in proceedings
for the offence to which the notice relates, successfully argue that the
offence was trifling (in which case the Court must order that the period of
disqualification or suspension be reduced to a period of 1 month); or
(ii) the
offence to which the notice relates is a category 3 offence and the Court is
satisfied, on the basis of evidence given by or on behalf of the applicant,
that there is a reasonable prospect that the applicant would, in proceedings
for the offence to which the notice relates, be acquitted of the offence but
the evidence before the Court suggests that the applicant may be guilty of a
category 2 offence (in which case the Court must order that the period be
reduced to a period of 6 months).
(3) The
application must be commenced by lodging written application with the
Magistrates Court, in the form prescribed by rules of the Court, setting out
the grounds on which the application is made and particulars of the evidence
that will be relied on by the applicant.
(4) The Commissioner of Police—
(a) must be served, by an applicant for an order under this
section, with a copy of the application as soon as practicable after the
application is made; and
(b) is a party to the application; and
(c) may (but is not required to) appear at the hearing
represented by legal counsel or a member of the police force.
(5) If
the Commissioner of Police does not appear at the hearing, the clerk of the
Court must notify the Commissioner of Police, in writing, of the date on which
the application was determined and the nature and effect of any order made in
relation to the application.
Schedule 1—Transitional provisions
The expiation of an offence prior to the commencement of section 4 of this Act cannot be taken into account in determining whether an offence to which section 81C of the Motor Vehicles Act 1959 applies is a first, second, third or subsequent offence for the purposes of that section.