18D   Providing an oral fluid sample for oral fluid analysis following arrest

(1)  A police officer may require a person who has been arrested under section 18C to provide an oral fluid sample in accordance with the directions of the officer.

(2)  A person who is required by a police officer under subsection (1) to provide an oral fluid sample must not refuse or fail to provide that sample in accordance with the directions of the officer.

Maximum penalty: 30 penalty units (in the case of a first offence) or 50 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence).

(3)  It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant was unable, on medical grounds, to provide an oral fluid sample at the time the defendant was required to do so.

(4)  A police officer who is provided with an oral fluid sample under subsection (1) must:

(a)  place the sample into a container, and

(b)  fasten and seal the container, and

(c)  mark or label the container for future identification, and

(d)  give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid, and

(e)  as soon as reasonably practicable after the sample is provided, arrange for the sample to be submitted to a laboratory prescribed by the regulations for oral fluid analysis.

(4A)  A police officer may carry out an oral fluid test on a portion of an oral fluid sample provided under subsection (1) before dealing with the remaining portion of the sample in accordance with subsection (4).

(4B)  If an oral fluid test is carried out under subsection (4A) on a portion of an oral fluid sample, a reference in this Division and sections 33A and 33B to the sample that is required under subsection (4) to be submitted to a laboratory is taken to be a reference to the remaining portion of the sample.

(5)  The person who provided the sample may, within 6 months after the taking of the sample or such longer period as is prescribed by the regulations, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for oral fluid analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.

(6)  An analyst at the laboratory to which a sample of oral fluid is submitted for oral fluid analysis under this section may carry out an analysis of the sample, or of a portion of the sample, to determine the presence of prescribed illicit drugs in the oral fluid.

(7)  An oral fluid analysis referred to in subsection (6) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of oral fluid to be analysed and the breaking of any seal securing the sample) may be done, by a person acting under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.