ROAD SAFETY ACT 1986 (Victoria)
PART 5 - OFFENCES INVOLVING ALCOHOL OR OTHER DRUGS
Copyright
Notice
Section
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Immediate suspension of driver licence or permit in certain circumstances |
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Table of Maximum Penalties . Table of Minimum Licence Disqualification Periods
3. Definitions (containing only the most relevant definitions)
"breath analysing instrument" means -
(a) the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers "3530791" whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or(b) apparatus of a type approved for the purposes of section 55 by the Minister by notice published in the Government Gazette or for the purposes of any corresponding previous enactment by the Governor in Council by notice published in the Government Gazette for ascertainment by analysis of a person's breath what concentration of alcohol is present in his or her blood;
"dentist" means a dentist within the meaning of the Dentists Act 1972
"drug" means a substance that is a drug for the purposes of this Act by virtue of a declaration under sub-section (3) or any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;
"highway" means road or road related area;
"licence restoration report" means a report from an accredited agency on an applicant for an order under section 50(4);
"motor vehicle" means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include--
(a) a vehicle intended to be used on a railway or tramway; or
(b) a motorised wheel-chair capable of a speed of not more than 10 kilometres per hour which is used solely for the conveyance of an injured or disabled person; or
(c) a vehicle that is not a motor vehicle by virtue of a declaration under sub-section (2)(b);
"permissible non-prescription drug" means--
(a) a Schedule 2 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 that is listed in Appendix K of Part 5 of the Commonwealth standard within the meaning of that Act; or
(b) a Schedule 3 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981;
"pharmacist" means a pharmacist within the meaning of the Pharmacists Act 1974;
"prescribed concentration of alcohol" means--
(a) in the case of a person to whom section 52 applies, the concentration of alcohol specified in that section; and
(b) in the case of any other person, a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood;
"prescription drug", in relation to a person, means a Schedule 4 poison or Schedule 8 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 which that person is authorised or licensed by or under that Act to have in his or her possession;
"road" means--
(a) an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; or
(b) a place that is a road by virtue of a declaration under sub-section (2)(a)--
but does not include a place that is not a road by virtue of a declaration under sub-section (2)(a);
"road related area" means--
(a) an area that divides a road; or
(b) a footpath or nature strip adjacent to a road; or(c) an area that is open to the public and is designated for use by cyclists or animals; or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles; or
(e) a place that is a road related area by virtue of a declaration under sub-section (2)(a)--
but does not include a place that is not a road related area by virtue of a declaration under sub-section (2)(a);
"substance" means substance in any form (whether gaseous, liquid, solid or other) and includes material, preparation, extract and admixture;
47. Purposes of this Part
The purposes of this Part are to -
(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and
(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and
(c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol.
48. Interpretative provisions
(1) For the purposes of this Part -
(a) if it is established that at any time within 3 hours after an alleged offence against paragraph (a) or (b) of section 49(1), a certain concentration of alcohol was present in the blood of the person charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the person's blood at the time at which the offence is alleged to have been committed; and(ab) if it is established that at any time within 3 hours after an alleged offence against paragraph (ba) of section 49(1), a certain drug was present in the body of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's body at the time at which the offence is alleged to have been committed; and
(b) a person is not to be taken to be in charge of a motor vehicle unless that person is attempting to start or drive the motor vehicle or unless there are reasonable grounds for the belief that that person intends to start or drive the motor vehicle.
(1AA) Despite sub-section (1)(b), a person who for financial gain, or in the course of any trade or business, is teaching a person, who does not hold a driver licence, to drive on a highway a motor vehicle of a kind described in section 33(3) is to be taken to be in charge of the motor vehicle being used for teaching purposes while the person whom he or she is teaching to drive is driving or in charge of it.
(1AB) Sub-section (1AA) does not affect any liability of the person who is being taught to drive for any offence committed by that person while driving or in charge of the motor vehicle being used for teaching purposes.
(1AC) For the purposes of an alleged offence against paragraph (ba) of section 49(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or urine taken from the person charged was not due solely to the consumption or use of that drug after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.
(1AD) For the purposes of sections 55A and 55B, a driver is not to be taken to be impaired unless his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to drive properly.
(1A) For the purposes of an alleged offence against paragraph (f) or (g) of section 49(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the blood of the person charged or found by an analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.
(2) If a person who is convicted of an offence against -
(a) any one of the paragraphs of section 49(1); or(b) section 56(2) as in force from time to time after the commencement of section 11 of the Road Safety (Drivers) Act 1991; or
(c) section 56(7) as in force immediately prior to the commencement of section 11 of the Road Safety (Drivers) Act 1991 -
has at any time been found guilty or been convicted of -
(d) an offence against the same or any other of those paragraphs or that section; or
(e) an offence against any previous enactment corresponding to any of those paragraphs or that section or any corresponding law; or
(f) an offence under section 318(1) of the Crimes Act 1958 where the culpable driving is constituted by behaviour referred to in paragraph (c) or (d) of section 318(2) of the Act -
the conviction for the offence against that paragraph or section is to be taken to be a conviction for a subsequent offence.
(3) An approval or authority given under or for the purposes of section 55 or 55A(3) by the Chief Commissioner of Police may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.
(4) For the avoidance of doubt it is declared that nothing in this Part requires a person who is in a dwelling to allow a member of the police force or an officer of the Corporation to enter that dwelling without a warrant.
49. Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she -
(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or(b) drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or
(ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug; or
(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so; or
(ca) refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so or refuses to comply with any other requirement made under section 55A(1); or
(d) refuses or fails to comply with a request or signal to stop a motor vehicle given under section 54(3); or
(d) refuses or fails to comply with a request or signal to stop a motor vehicle given under section 54(3); or
(e) refuses to comply with a requirement made under section 55(1), (2), (2A) or (9A); or
(ea) refuses to comply with a requirement made under section 55B(1); or
(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) 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 blood; and(ii) the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or
(g) has had a sample of blood taken from him or her in accordance with section 55 or 56 within 3 hours after driving or being in charge of a motor vehicle and -
(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 57 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 driving or being in charge of the motor vehicle.
(2) A person who is guilty of an offence under paragraph (a) of sub-section (1) is liable -
(a) in the case of a first offence, to a fine of not more than 25 penalty units or to imprisonment for a term of not more than 3 months; and(b) in the case of a subsequent offence, to imprisonment for a term of not more than 12 months.
(3) A person who is guilty of an offence under paragraph (b), (ba), (c), (ca), (d), (e), (ea), (f) or (g) of sub-section (1) is liable -
(a) in the case of a first offence, to a fine of not more than 12 penalty units; and(b) in the case of a subsequent offence, to a fine of not more than 25 penalty units or to imprisonment for a term of not more than 3 months.
(3A) In proceedings for an offence under paragraph (ba) of sub-section (1), proof that--
(a) the person drove or was in charge of a motor vehicle; and
(b) one or more drugs were present in the person's body at the time at which he or she drove or was in charge of the motor vehicle; and
(c) the behaviour of the person on an assessment of drug impairment carried out under section 55A 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 drive properly--
is, in the absence of evidence to the contrary but subject to sub-sections (3B) and (3C), proof that the defendant drove or was in charge of a motor vehicle while impaired by a drug.
(3B) If on an analysis carried out in accordance with this Part, no drug other than a permissible non-prescription drug or a prescription drug was found present in the person's body, it is a defence to a charge under paragraph (ba) of sub-section (1) for the person charged to prove that--
(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would impair driving if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs; and
(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.
(3C) In sub-section (3B), "advice" means written or oral advice and includes anything written on a label accompanying the drug.
(4) It is a defence to a charge under paragraph (f) of sub-section (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
(5) It is a defence to a charge under paragraph (g) of sub-section (1) for the person charged to prove that the result of the analysis was not a correct result.
(6) In any proceedings for an offence under paragraph (f) or (g) of sub-section (1) 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 48(1A) but is otherwise inadmissible.
(7) On convicting a person, or finding a person 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 paragraph (b) of sub-section (1), the level of concentration of alcohol found to be present in that person's blood; and(b) in the case of an offence under paragraph (f) of sub-section (1), 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 paragraph (g) of sub-section (1), the level of concentration of alcohol found to be present in the sample of blood.
(8) If on a prosecution for an offence under paragraph (a) of sub-section (1), the court is not satisfied that the defendant is guilty of that offence but is satisfied that the defendant is guilty of an offence under paragraph (ba) of that sub-section, the court may find the defendant guilty of an offence under paragraph (ba) and punish the defendant accordingly.
49A. Accredited agencies
(1) A person or body may apply to the Chief General Manager for -
(a) approval for itself for the purposes of sections 50 and 50A;(b) approval for a program for the purposes of section 50A.
(2) A person or body applying under sub-section (1) must pay to the Chief General Manager, as required by the regulations, the fee prescribed in respect of -
(a) the making of the application;(b) the processing of the application, including any visits made to the applicant;
(c) the granting, renewal or variation of an approval.
(3) The Chief General Manager may grant an approval subject to any conditions, limitations or restrictions specified in the approval.
(4) The regulations may specify the period during which an approval continues in force.
50. Provisions about cancellation and disqualification
(1) On convicting a person to whom section 52 applies, or finding such a person guilty, of an offence under section 49(1)(b), (f) or (g) the court may where -
(a) the concentration of alcohol in the blood of that person was 0·05 grams per 100 millilitres of blood or less; and(b) the offence is a first offence -
if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being more than 6 months.
(1A) Subject to sub-section (1AB), on convicting a person, or finding a person guilty of an offence under section 49(1)(b), (f) or (g) in circumstances in which sub-section (1) does not apply, the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than -
(a) in the case of a first offence, the period specified in Column 2 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood of the offender as specified in Column 1 of that Schedule; and(b) in the case of a subsequent offence, the period specified in Column 3 of Schedule 1 ascertained by reference to the concentration of alcohol in the blood of the offender as specified in Column 1 of that Schedule.
(1AB) If a court finds a person guilty of an offence under section 49(1)(b), (f) or (g) but does not record a conviction, the court is not required to cancel a driver licence or permit or disqualify the offender from obtaining one in accordance with sub-section (1A) if it appears to the court that at the relevant time the concentration of alcohol in the blood of the offender -
(a) in the case of a person previously found guilty of an offence against any one of the paragraphs of section 49(1) or any previous enactment corresponding to any of those paragraphs or any corresponding law, was not more than 0·05 grams per 100 millilitres of blood; or(b) in any other case, was not more than 0·10 grams per 100 millilitres of blood.
(1B) On convicting a person, or finding a person guilty, of an offence under section 49(1)(a), (c), (d) or (e) the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than -
(a) in the case of a first offence, 2 years; and(b) in the case of a subsequent offence, 4 years.
(1C) On convicting a person, or finding a person guilty of an offence under section 49(1)(ba), the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than--
(a) in the case of a first offence, 12 months; and
(b) in the case of a subsequent offence, 2 years.
(1D) On convicting a person, or finding a person guilty of an offence under section 49(1) (ca) or (ea), the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such period as the court thinks fit, not being less than--
(a) in the case of a first offence, 2 years; and
(b) in the case of a subsequent offence, 4 years.
(2) Any period of suspension imposed on a person under section 51 must be deducted from the period of disqualification imposed on that person under this section.
(3) Except on the order of the Magistrates' Court made on an application under sub-section (4), a driver licence or permit must not be issued to a person who has been disqualified from obtaining one under this section or section 89C unless -
(a) the offence was under section 49(1)(b), 49(1)(f) or 49(1)(g); and(b) the concentration of alcohol in the blood of that person was less than 0·10 grams per 100 millilitres of blood; and
(c) it was that person's first such offence.
(4) A person to whom sub-section (3) applies may, at the end of the period of disqualification and on giving 28 days written notice of the application to the Chief Commissioner of Police and a registrar of the court, apply to the venue of the Magistrates' Court ascertained in accordance with the regulations for an order as to the issue of a driver licence or permit.
(4A) If a person applies under sub-section (4) for an order and the offence in respect of which the person was disqualified was -
(a) an offence under section 49(1)(b), (f), or (g) which was -(i) a first offence and the level of concentration of alcohol in that person's blood was 0·15 grams or more per 100 millilitres of blood; or(ii) a subsequent offence; or
(b) an offence under section 49(1)(a), (ba), (c), (ca), (d), (e) or (ea) -
the court must have regard to the reports referred to in sub-section (4B).
(4B) A person who applies for an order under sub-section (4) and to whom sub-section (4A)(a) or (4A)(b) applies must obtain from an accredited agency -
(a) at least 12 months (or, if the offence in respect of which the person was disqualified was an offence under section 49(1)(ba), (ca) or (ea), at least 6 months) before applying for the order, an assessment report about the person's usage of alcohol or drugs, as the case requires; and(b) within 28 days before applying for the order, a licence restoration report.
(4C) If a person applies under sub-section (4) for an order and neither paragraph (a) nor (b) of sub-section (4A) applies, the court may request a licence restoration report from an accredited agency.
(4D) On an application under sub-section (4) the court may, in exceptional circumstances, reduce the period referred to in sub-section (4B)(a).
(5) On an application under sub-section (4) the court may make or refuse to make the order sought, and for the purpose of determining whether or not the order should be made -
(a) the court must hear any relevant evidence tendered either by the applicant or by the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the court; and(b) without limiting the generality of its discretion, the court must have regard to -
(i) the conduct of the applicant with respect to intoxicating liquor or drugs (as the case may be) during the period of disqualification; and(ii) the applicant's physical and mental condition at the time of the hearing of the application; and
(iii) the effect which the making of the order may have on the safety of the applicant or of the public; and
(iv) any licence restoration report obtained under sub-section (4B)(b) or (4C) and any report obtained under sub-section (4B)(a).
50AA. Previous convictions
In determining for the purpose of a provision specified in column 1 of the following table whether an offence(in this section referred to as "the relevant offence") is a first offence, any other offence in respect of which a conviction was recorded or a finding of guilt was made 10 years or more before the event specified in relation to that provision in column 2 is to be disregarded if not to do so would make the relevant offence a subsequent offence for the purpose of that provision.
TABLE
Column 1
Column 2
The commission of the relevant offence.
The making of the application for the driver licence or permit.
Section 50(4A)(a)
The making of the application under section 50(4)
50A. Drink-driving education programs
(1) The Corporation must not issue a driver licence or permit to a person whose driver licence or permit is cancelled, or who is disqualified from obtaining a driver licence or permit, on conviction, or on being found guilty, of an offence under section 49(1)(b), (f) or (g) and who, at the time of the offence, was under 25 years old unless it is satisfied that the person has, if the offence is a first offence and the level of concentration of alcohol in that person's blood was less than 0·15 grams per 100 millilitres of blood, completed an accredited driver education program.(1A) The Corporation must not issue a driver licence or permit to a person whose driver licence or permit is cancelled, or who is disqualified from obtaining a driver licence or permit, on conviction, or on being found guilty, of an offence under section 49(1)(ba), (ca) or (ea) and who, at the time of the offence, was under 25 years old unless it is satisfied that the person has, if the offence is a first offence, completed an accredited driver education program.
(2) The Corporation must cancel the driver licence or permit of a person who was convicted, or found guilty, of an offence under section 49(1) (b), (f) or (g) and whose driver licence or permit was not cancelled on the conviction or finding of guilt, unless it is satisfied that the person has completed an accredited driver education program within 3 months after being required by the Corporation by notice in writing to do so.
(3) If a person is charged with an offence under section 49(1), and on the hearing the court releases the person on him or her giving an undertaking under section 75(1) of the Sentencing Act 1991, the court must attach to the undertaking a condition that the person completes an accredited driver education program.
(4) The Corporation may in its discretion exempt any person from the requirement to complete an accredited driver education program.
51. Immediate suspension of driver licence or permit in certain circumstances
(1) If a person is charged by a member of the police force or an officer of the Corporation with an offence under -
(a) paragraph (b), (f) or (g) of section 49(1) where it is alleged that the concentration of alcohol in the blood of that person was 0·15 grams per 100 millilitres of blood or more; or(b) paragraph (c), (d) or (e) of section 49(1); or
(c) a subsequent offence within the meaning of section 48(2) -
any member of the police force or, if the accused had been driving or in charge of a commercial motor vehicle, any officer of the Corporation may, at any time after the making of the charge until the charge has been determined, give to the accused a notice in the prescribed form informing the accused that his or her driver licence or permit is immediately suspended until the charge has been determined and requiring the accused to surrender immediately to the person who gave the notice the licence document or permit document.
(1A) If a person is charged by a member of the police force with an offence under paragraph (ba), (ca) or (ea) of section 49(1), any member of the police force may, at any time after the making of the charge until the charge has been determined, give to the accused a notice containing the prescribed particulars informing the accused that his or her driver licence or permit is immediately suspended until the charge has been determined and requiring the accused to surrender immediately to the person who gave the notice the licence document or permit document.
(2) For the purposes of this section a person is charged with an offence when a copy of the information that is signed by the member of the police force or the officer of the Corporation is given to the person.
(3) Immediately on the giving of a notice under sub-section (1) or (1A) the driver licence or permit of the accused is suspended until the charge has been determined by a court.
(4) A person who gives a notice under sub-section (1) or (1A) must cause a copy of that notice to be sent immediately to the Corporation.
(5) A person who, without just cause or excuse, refuses or fails to surrender a document as required by a notice under sub-section (1) or (1A) is guilty of an offence.
Penalty: 5 penalty units.
(6) The accused has the burden of proving just cause or excuse.
(7) A licence or permit suspended under this section is, during the suspension, of no effect and a person whose licence or permit is so suspended is, during the suspension, disqualified from obtaining a further licence or permit.
(8) A person must not while he or she is disqualified from obtaining a licence or permit apply for or obtain a licence or permit.
Penalty: 5 penalty units.
(9) A licence or permit so obtained is of no effect.
(10) A person to whom a notice is given under sub-section (1) or (1A) may appeal against that notice to the Magistrates' Court.
(10A) A person who appeals under sub-section (10) must give 14 days' written notice of the appeal (including particulars of the alleged exceptional circumstances) to the Chief Commissioner of Police and a registrar of the Magistrates' Court.
(10B) In determining the appeal the court must hear any relevant evidence tendered either by the applicant or by the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the court.
(11) On an appeal under sub-section (10) the court may make an order -
(a) confirming the notice; or(b) cancelling the notice.
(12) The Magistrates' Court must not make an order under sub-section (11) cancelling a notice unless it is satisfied that exceptional circumstances exist which justify the making of such an order.
(13) Every order of the Magistrates' Court under sub-section (11) is final and conclusive and must be given effect to by the Corporation.
(14) If on the subsequent hearing of the charge the accused's driver licence or permit is cancelled and the accused is disqualified from obtaining one for a specified time, the court must take into account in fixing the period of disqualification the period of suspension under this section.
52. Zero blood alcohol
(1) This section applies to any person who is driving or in charge of a motor vehicle without holding a full driver licence which authorises the holder to drive such a motor vehicle, but does not apply to a person who -
(a) is not the holder of a full driver licence merely because he or she has failed to renew his or her licence; or(b) is -
(i) the holder of a licence to drive such a motor vehicle, which is issued under -(A) an Act of another State or a Territory of the Commonwealth that corresponds with this Act; or(B) a law of another country -
and which is not a provisional licence or a licence which is on probation; and
(ii) exempted under the regulations from the requirement to hold a driver licence or permit.
(1A) This section also applies to a person who is the holder of a full driver licence which authorises him or her to drive a large vehicle, while that person is driving or in charge of a large vehicle.
(1B) This section also applies, during the period of 3 years from the first issue of a licence on that order, to a person who is driving or in charge of a motor vehicle while holding a full driver licence which authorises the holder to drive such a motor vehicle issued only because of the order of the Magistrates' Court made on an application under section 50(4).
(1C) This section also applies to a person who is the holder of a full driver licence which authorises him or her to drive a taxi-cab, while that person is driving or in charge of a taxi-cab.
(2) The prescribed concentration of alcohol in the case of a person to whom this section applies is a concentration of alcohol present in the blood of that person of 0·00 grams per 100 millilitres of blood.
53. Preliminary breath tests
(1) A member of the police force may at any time require -
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or(b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station under section 54(3); or
(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the member of the police force which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident -
to undergo a preliminary breath test by a prescribed device.
(2) An officer of the Corporation or of the Department of Infrastructure who is authorised in writing by the Corporation or the Secretary of the Department of Infrastructure, as the case requires, for the purposes of this section may at any time require any person he or she finds driving a commercial motor vehicle or in charge of a commercial motor vehicle to undergo a preliminary breath test by a prescribed device.
(3) A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the member of the police force or the officer of the Corporation or of the Department of Infrastructure.
(4) A person is not obliged to undergo a preliminary breath 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.
54. Preliminary breath testing stations
(1) A member of the police force may set up a preliminary breath testing station on or in the vicinity of any highway.
(2) A preliminary breath testing station -
(a) consists of such facilities as are necessary to enable the making of preliminary breath tests in quick succession; and(b) must be identified by suitable signs, lights or other devices.
(3) A member of the police force who is on duty and wearing uniform at a preliminary breath testing station may request or signal any person driving a motor vehicle to stop the motor vehicle.
(4) Members of the police force who are on duty at a preliminary breath testing station must ensure that no person is detained there any longer than is necessary.
55. Breath analysis
(1) If a person undergoes a preliminary breath test when required by a member of the police force or an officer of the Corporation or of the Department of Transport under section 53 to do so and -
(a) the test in the opinion of the member or officer in whose presence it is made indicates that the person's blood contains alcohol; or(b) the person, in the opinion of the member or officer, refuses or fails to carry out the test in the manner specified in section 53(3) -
any member of the police force or, if the requirement for the preliminary breath test was made by an officer of the Corporation, any member of the police force or any officer of the Corporation or of the Department of Transport may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force or an officer of the Corporation or of the Department of Transport authorised in writing by the Corporation or the Secretary of the Department of Transport, as the case requires, for the purposes of section 53 to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
(2) A member of the police force may require any person whom that member reasonably believes to have offended against section 49(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 53) and for that purpose may further require the person to accompany a 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 person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
(2A) The person who required a sample of breath under sub-section (1) or (2) may require the person 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 100 millilitres of blood 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.
(3) A breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.
(4) As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate in the prescribed form produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her blood.
(5) A person 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.
(6) A person is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.
(9) A person 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.
(9A) The person who required a sample of breath under sub-section (1) or (2) from a person may require that person 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 that person's blood for analysis if it appears to him or her that--
(a) that person 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 100 millilitres of blood the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever -
and for that purpose may further require that person to accompany 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 driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
(9B) The registered medical practitioner or approved health professional who takes a sample of blood under sub-section (9A) must deliver a part of the sample to the person who required it to be taken and another part to the person from whom it was taken
(9C) A person who allows the taking of a sample of his or her blood in accordance with sub-section (9A) must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis.
(9D) A person must not hinder or obstruct a registered medical practitioner attempting to take a sample of the blood of any other person in accordance with sub-section (9A).
Penalty applying to this sub-section: 12 penalty units.
(9E) No action lies against a registered medical practitioner in respect of anything properly and necessarily done by the practitioner in the course of taking any sample of blood which the practitioner believed on reasonable grounds was allowed to be taken under sub-section (9A).
(10) A person 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 (4), 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 that person's blood for analysis at that person's own expense by a registered medical practitioner or an approved health professional nominated by the member of the police force.
(11) A part of a sample of blood taken under sub-section (10) must be delivered to the person who required the sample of breath under this section.
(12) Nothing in sub-section (10) relieves a person from any penalty under section 49(1)(e) for refusing to furnish a sample of breath.
(13) 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 (10) if reasonable efforts were made to comply with the request.
(14) If the question whether a breath analysing instrument was incapable of measuring in grams per 100 millilitres of blood the concentration of alcohol present in any sample of breath furnished by a person is relevant on a hearing for an offence against section 49(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.
55A. Drug assessment
(1) A member of the police force may at any time require--
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or(b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station under section 54(3); or
(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the member of the police force which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident; or
(e) any person whom he or she has required under section 53 to undergo a preliminary breath test; or (f) any person required under section 55 to furnish a sample of breath or from whom a sample of blood was required to be taken under section 55(9A)--
to undergo an assessment of drug impairment if, in the opinion of the member, that person's behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone and for that purpose may further require the person to accompany a member of the police force to a place where the assessment is to be carried out and to remain there until the assessment has been carried out or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
(2) A person is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle.
(3) An assessment of drug impairment must be carried out by a member of the police force authorised to do so by the Chief Commissioner of Police.
(4) An assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under sub-section (5).
(5) The Corporation may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment. (6) The carrying out of an assessment of drug impairment must be video-recorded unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances.
(7) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 49(1), a copy of the video-recording, if any, must be served with the summons or, if a summons is not issued, within 7 days after the making of the charge.
(8) Subject to sub-section (9), the video-recording of the carrying out of an assessment of drug impairment on a person is only admissible in a proceeding against that person for an offence against this Act for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under sub-section (5).
(9) Evidence obtained as a result of an assessment of drug impairment carried out on a person is inadmissible as part of the prosecution case in proceedings against that person for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 55C.
(10) In any proceeding under this Act--
(a) the statement of any member of the police force that on a particular date he or she was authorised by the Chief Commissioner of Police under sub-section (3) to carry out an assessment of drug impairment; or(b) a certificate purporting to be signed by the Chief Commissioner of Police that a member of the police force named in it is authorised by the Chief Commissioner under sub-section (3) to carry out an assessment of drug impairment--
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that member.
55B. Blood and urine samples
(1) If a person undergoes an assessment of drug impairment when required under section 55A to do so and the assessment, in the opinion of the member of the police force carrying it out, indicates that the person may be impaired by a drug or drugs, any member of the police force may require the person to do either or both of the following--
(a) allow a registered medical practitioner or an approved health professional nominated by that member to take from the person a sample of that person's blood for analysis;(b) furnish to a registered medical practitioner or an approved health professional nominated by that member a sample of that person's urine for analysis--
and for that purpose may further require the person to accompany a member of the police force to a place where the sample is to be taken or furnished and to remain there until the sample has been taken or furnished or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
(2) The registered medical practitioner or approved health professional who takes a sample of blood or is furnished with a sample of urine under this section must deliver a part of the sample to the member of the police force who required it to be taken or furnished and another part to the person from whom it was taken or by whom it was furnished.
(3) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with this section.
Penalty: 12 penalty units.
(4) 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, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
(5) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under paragraph (ba) of section 49(1), a copy of a written report on that assessment prepared by the member of the police force who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the making of the charge.
55C. Destruction of identifying information
(1) In this section, "relevant offence" means--
(a) an offence under section 49(1) (ba) or (ea); or(b) any other offence arising out of the same circumstances; or
(c) any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.
(2) If an assessment of drug impairment has been carried out on a person under section 55A and--
(a) the person has not been charged with a relevant offence at the end of the period of 12 months after the assessment; or(b) the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence, whether on appeal or otherwise, before the end of that period--
the Chief Commissioner of Police must, subject to sub-section (4), destroy, or cause to be destroyed, at the time specified in sub-section (3) any video-recording made of the assessment and any related material and information.
(3) A video-recording and any related material and information referred to in sub-section (2) must be destroyed--
(a) in a case to which sub-section (2)(a) applies, immediately after that period of 12 months; or(b) in a case to which sub-section (2)(b) applies--
(i) within 1 month after the conclusion of the proceeding and the end of any appeal period; or(ii) if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within 1 month after dismissal under that section.
(4) A member of the police force may, before the end of a period referred to in sub-section (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in sub-section (3) is a reference to that period as so extended.
(5) If the Magistrates' Court makes an order under sub-section (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.
(6) If a video-recording or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the person on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that person in writing whether the destruction has occurred.
(7) A person who knowingly--
(a) fails to destroy; or(b) uses, or causes or permits to be used--
a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
(8) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
56. Blood samples to be taken in certain cases
(1) In this section -
definition of "designated place" repealed by No. 7/1995 s. 3(1)."doctor" means a registered medical practitioner and includes a police surgeon.
(2) If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor to take from that person at that place a sample of that person's blood for analysis.
Penalty: For a first offence, 12 penalty units.For a subsequent offence, 25 penalty units or imprisonment for 3 months.
(3) On convicting a person, or finding a person guilty, of an offence under sub-section (2) the court must, if the offender holds a driver licence or permit, cancel that licence or permit and, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for the time that the court thinks fit, being not less than -
(a) for a first offence, 2 years; and(b) for a subsequent offence, 4 years.
(4) Sub-section (2) does not apply if -
(a) in the opinion of the doctor first responsible for the examination or treatment of the person the taking of a blood sample from that person would be prejudicial to his or her proper care and treatment; or(b) a member of the police force has notified the doctor first responsible for the examination or treatment of the person, in writing, that the person has undergone a preliminary breath test which did not indicate that the prescribed concentration of alcohol was exceeded; or
(c) a member of the police force or a member of an ambulance service has notified the doctor first responsible for the examination or treatment of the person, in writing, that the person was an occupant of and was not driving or in charge of any vehicle involved in the accident; or
(d) a member of the police force or a doctor has notified the doctor first responsible for the examination or treatment of the person, in writing, that a sample of the person's blood was taken by a doctor before the person entered or was brought to the place for examination or treatment.
(5) A person to whom sub-section (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by a doctor at a place which he or she enters or to which he or she is brought for examination or treatment.
(6) If a sample of a person's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except -
(a) for the purposes of section 57; or(b) for the purposes of the Transport Accident Act 1986 -
but may be given -
(c) to the Transport Accident Commission under the Transport Accident Act 1986 and, for the purposes of appeals relating to that Act, to the Administrative Appeals Tribunal; and(d) to the Corporation for the purposes of accident research.
(7) A person must not hinder or obstruct a doctor attempting to take a sample of the blood of any other person in accordance with this section.
Penalty: 12 penalty units.
(8) No action lies against a doctor in respect of anything properly and necessarily done by the doctor in the course of taking any sample of blood which the doctor believes on reasonable grounds was required or allowed to be taken from any person under this section.
(9) A blood sample that is, after 9 December 1987, taken from a person by a doctor who honestly and reasonably believes that he or she is required to take the sample, whether or not the person consents to the taking, is deemed to have been taken by the doctor who was first responsible for the examination or treatment of that person.
57. Evidentiary provisions - blood tests
(1) In this section -
(a) "properly qualified analyst" means -(i) an approved analyst; or(ii) a person who is considered by the presiding judge, a coroner, or the Magistrates' Court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under sub-section (4); and
(ab) "properly qualified expert" means--
(i) an approved expert; or(ii) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under sub-section (4B); and
(b) "approved analyst" means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section.
(c) "approved expert" means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified expert for the purposes of this section.
(2) If the question whether any person was or was not at any time under the influence of intoxicating liquor or any other drug or if the question as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time or if a finding on the analysis of a blood sample is relevant -
(a) on a trial for murder or manslaughter or for negligently causing serious injury arising out of the driving of a motor vehicle; or(ab) on a trial or hearing for an offence against Subdivision (4) of Division 1 of Part I of the Crimes Act 1958 arising out of the driving of a motor vehicle; or
(b) on a trial or hearing for an offence against section 318(1) of the Crimes Act 1958; or
(c) on a hearing for an offence against section 49(1) of this Act; or
(d) in any proceedings conducted by a coroner -
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, within 3 hours after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis.
(3) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any proceedings referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(4) A certificate in the prescribed form purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in any proceedings referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(4A) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of blood analysed by the analyst of a substance that is, or is capable of being, a drug for the purposes of this Act is admissible in evidence in any proceedings referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(4B) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to drive properly) is admissible in evidence in any proceedings referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(5) A certificate given under this section must not be tendered in evidence at a trial or hearing referred to in sub-section (2)(a), (ab), (b) or (c) without the consent of the accused unless a copy of the certificate is proved to have been personally served on the accused more than 10 days before the day on which the certificate is tendered in evidence.
(6) An affidavit or statutory declaration by the person who has personally served a copy of the certificate on the accused is admissible in evidence at a trial or hearing referred to in sub-section (2)(a),(ab),(b) or(c) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.
(7) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
(7A) The court must not grant leave under sub-section (7) unless it is satisfied -
(a) that the informant has been given at least 7 day's notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and(b) that -
(i) there is a reasonable possibility that the blood referred to in a certificate given by an analyst under sub-section (4) was not that of the accused; or(ii) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or
(iii) there is a reasonable possibility that the sample was not taken in accordance with the Code of Practice for Taking Blood Samples from Road Accident Victims; or
(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
(7B) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under sub-section (7).
(8) If a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the person to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the person was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.
(9) Except as provided in sections 55(9A) 55B and 56, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the person from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.
(10) The mere failure or refusal of a person to express consent must not be used in evidence against that person or referred to in any way against that person's interests in any proceedings.
(11) A certificate purporting to be signed by a person -
(a) who took a blood sample; or(b) who analysed a blood sample -
in accordance with provisions of an Act of another State or a Territory that substantially corresponds to section 56 of this Act and in accordance with any regulations made under the corresponding Act is admissible in evidence in any proceeding referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(12) Sub-sections (5), (6), and (7) apply in respect of a certificate referred to in sub-section (11) as if the certificate was given under this section.
57A. Evidentiary provisions--urine tests
(1) In this section--
"approved analyst" means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section;
"approved expert" means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified expert for the purposes of this section;
"properly qualified analyst" means--
(a) an approved analyst; or(b) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under sub-section (4);
"properly qualified expert" means--
(a) an approved expert; or(b) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under sub-section (5).
(2) If a question as to the presence of a drug in the body of a person at any time is relevant on a hearing for an offence against section 49(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given--
(a) of the furnishing by that person, within 3 hours after that person drove or was in charge of a motor vehicle, of a sample of urine to a registered medical practitioner or an approved health professional; (b) of the analysis of that sample of urine by a properly qualified analyst within twelve months after it was taken;(c) of the presence of a drug in that sample of urine at the time of analysis;
(d) by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person's ability to drive properly).
(3) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any hearing referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(4) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of urine analysed by the analyst of a substance that is, or is capable of being, a drug for the purposes of this Act is admissible in evidence in any hearing referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(5) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to drive properly) is admissible in evidence in any hearing referred to in sub-section (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6) A certificate given under this section must not be tendered in evidence at a hearing referred to in sub-section (2) without the consent of the accused unless a copy of the certificate is proved to have been personally served on the accused more than 10 days before the day on which the certificate is tendered in evidence.
(7) An affidavit or statutory declaration by the person who has personally served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in sub-section (2) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.
(8) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
(9) The court must not grant leave under sub-section (8) unless it is satisfied--
(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and(b) that--
(i) there is a reasonable possibility that the urine referred to in a certificate given by an analyst under sub-section (4) was not that of the accused; or(ii) there is a reasonable possibility that the urine referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the urine not been contaminated in that way; or
(iii) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
(10) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend the court on the hearing of an application for leave under sub-section (8).
58. Evidentiary provisions - breath tests
(1) If the question whether any person was or was not at any time under the influence of intoxicating liquor or if the question as to the presence or the concentration of alcohol in the blood of any person at any time or if a result of a breath analysis is relevant -
(a) on a trial for murder or manslaughter or for negligently causing serious injury arising out of the driving of a motor vehicle; or(ab) on a trial or hearing for an offence against Subdivision (4) of Division 1 of Part I of the Crimes Act 1958 arising out of the driving of a motor vehicle; or
(b) on a trial or hearing for an offence against section 318(1) of the Crimes Act 1958; or
(c) on a hearing for an offence against section 49(1) of this Act -
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the blood of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 55 and the concentration of alcohol so indicated is, subject to compliance with section 55(4), evidence of the concentration of alcohol present in the blood of that person at the time his or her breath is analysed by the instrument.
(2) A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the blood of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in sub-section (1) and, subject to sub-section (2E), is conclusive proof of--
(a) the facts and matters contained in it; and(b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and
(c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 55; and
(d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and
(e) the fact that the instrument was in proper working order and properly operated; and
(f) the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed -
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
(2A) A notice under sub-section (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.
(2B) The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under sub-section (2).
(2C) If an accused person gives notice to the informant in accordance with sub-section (2) that he or she requires the person giving a certificate to be called as a witness and the court is satisfied that that person -
(a) is dead; or(b) is unfit by reason of his or her bodily or mental condition to testify as a witness; or
(c) has ceased to be a member of the police force or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or
(d) cannot with reasonable diligence be found -
the court must order that sub-section (2) has effect as if the notice had not been given.
(2D) A certificate referred to in sub-section (2) remains admissible in evidence even if the accused person gives a notice under that sub-section but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that sub-section.
(2E) Nothing in sub-section (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in sub-section (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.
(3) A certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner under section 55 to operate breath analysing instruments is admissible in evidence of the authority of that person.
(4) Evidence by a person authorised to operate a breath analysing instrument under section 55 -
(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Part;(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;
(c) that, in relation to the breath analysing instrument, all regulations made under this Part with respect to breath analysing instruments were complied with -
is, in the absence of evidence to the contrary, proof of those facts.
(5) The statement on oath of a person authorised to operate a breath analysing instrument under section 55 when called as a witness that any apparatus used by him or her on any occasion under section 55 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions "Alcotest 7110" and "3530791" whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of this Act.
58A. Avoidance of certain provisions in contracts of insurance
(1) Any covenant, term, condition, or other provision of a contract or other agreement is void to the extent that it purports to exclude or limit the liability of an insurer under a contract of insurance in the event of the driver or person in charge of a large vehicle having a concentration of alcohol present in his or her blood as indicated by an analysis of his or her breath or blood of not more than ·05 grams per 100 millilitres of blood.
(2) Sub-section (1) applies to a contract of insurance whether entered into before or after the commencement of section 14 of the Road Safety (Further Amendment) Act 1991.
[End of Part 5 of Road Safety Act 1986]
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