Division 4 Blood analysis of accident patients following accidents

19   Hospitals to which this Division applies

(cf Traffic Act, s 4F (12))

In this Division, a reference to a hospital includes a reference to any premises, institution or establishment prescribed by the regulations as a hospital for the purposes of this Division.

20   Blood samples to be taken in hospitals from accident patients

(cf Traffic Act, s 4F (1)–(3))

(1)  In this section, accident patient means a person at least 15 years of age who attends at or is admitted into a hospital for examination or treatment in consequence of an accident on a road or road related area (whether in New South Wales or elsewhere) involving a motor vehicle or other vehicle or a horse.

(2)  Any medical practitioner by whom an accident patient is attended at a hospital is under a duty to take a sample of the patient’s blood for analysis as soon as practicable.

(3)  The medical practitioner is under a duty to take the sample whether or not the accident patient consents to the taking of the sample.

(4)  If there is no medical practitioner present to attend the accident patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.

(5)  This section does not require the taking of a sample of blood from an accident patient unless, at the time of the accident concerned, the accident patient was:

(a)  driving a motor vehicle involved in the accident, or

(b)  occupying the driving seat of a motor vehicle involved in the accident and attempting to put the motor vehicle in motion, or

(c)  a pedestrian involved in the accident, or

(d)  driving or riding a vehicle (not being a motor vehicle) involved in the accident, or

(e)  driving or riding a horse involved in the accident, or

(f)  the holder of a driver licence and occupying the seat in the motor vehicle next to a holder of a learner licence who was driving a motor vehicle involved in the accident.

(6)  A medical practitioner or nurse is not required by this section to take a sample of an accident patient’s blood:

(a)  if a sample of the accident patient’s blood has already been taken in accordance with this section by another medical practitioner or nurse, or

(b)  if the medical practitioner or nurse has been informed by a police officer (or has reasonable grounds to believe) that the sample is required to be taken for the purposes of Division 5.

21   Offence—failure to take blood sample

(cf Traffic Act, s 4F (4) and (5))

(1)  A medical practitioner or nurse must not fail to take a person’s blood sample as required under this Division.

Maximum penalty: 20 penalty units.

(2)  It is a defence to a prosecution for an offence under subsection (1) if the medical practitioner or nurse satisfies the court that:

(a)  he or she believed on reasonable grounds that the taking of blood from the person from whom he or she was required by section 20 to take a sample of blood would be prejudicial to the proper care and treatment of the person, or

(b)  he or she did not believe that the person was at least 15 years of age and it was reasonable for him or her not to have so believed, or

(c)  he or she did not believe that the person had attended at or been admitted into the hospital in consequence of an accident on a road or road related area involving a vehicle or horse, or

(d)  without limiting paragraph (c)—he or she did not believe that the person was a person from whom he or she was required by section 20 to take a sample of blood and it was reasonable for him or her not to have so believed, or

(e)  the requirement that he or she take a sample of blood from the person arose after the expiration of 12 hours after the accident concerned occurred or he or she believed on reasonable grounds that the requirement so arose, or

(f)  he or she did not know, and could not with reasonable diligence have ascertained, which of 2 or more persons involved in an accident on a road or road related area involving a vehicle or horse was or were a person or persons from whom he or she was required by section 20 to take a sample or samples of blood, or

(g)  he or she was, by reason of the behaviour of the person, unable to take a sample of blood from the person at the time the person attended at or was admitted into the hospital or a reasonable time after so attending or being admitted, or

(h)  there was reasonable cause for him or her not to take a sample of blood from the person in accordance with this Division.

22   Offence—hindering or obstructing health professional taking blood sample

(cf Traffic Act, s 4F (6)–(7B))

(1)  A person must not hinder or obstruct a medical practitioner or nurse in attempting to take a sample of the blood of any other person in accordance with this Division.

Maximum penalty: 20 penalty units.

(2)  A person (other than a secondary participant) must not:

(a)  by reason of the person’s behaviour, prevent a medical practitioner or nurse from taking a sample of the person’s blood in accordance with this Division, or

(b)  between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this Division, wilfully do anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of an appropriate health professional).

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(3)  A secondary participant must not:

(a)  by reason of the person’s behaviour, prevent a medical practitioner or nurse from taking a sample of the person’s blood in accordance with this Division, or

(b)  between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this Division, wilfully do anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of an appropriate health professional).

Maximum penalty: 30 penalty units.

(4)  It is a defence to a prosecution of a person for an offence under subsection (2) or (3) of wilfully doing anything to alter the concentration of alcohol in the person’s blood if he or she satisfies the court that he or she did the thing after the expiration of 2 hours after the accident concerned occurred.

(5)  In this section:

appropriate health professional means a medical practitioner or nurse, or a person of a class or description prescribed by the regulations, for the proper care and treatment of the person.

secondary participant in relation to an accident, means a person involved in the accident who was:

(a)  a pedestrian, or

(b)  driving or riding a vehicle (other than a motor vehicle or a horse).

23   Analysis of samples of blood taken under this Division

(cf Traffic Act, s 4G (1)–(6))

(1)  The medical practitioner or nurse by whom a sample of a person’s blood is taken in accordance with this Division 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 blood.

Maximum penalty: 20 penalty units.

(2)  The medical practitioner or nurse must, as soon as reasonably practicable after the sample is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine the concentration of alcohol in the blood.

Maximum penalty: 20 penalty units.

(3)  The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.

(4)  A medical practitioner who, in another State or Territory, takes a sample of blood:

(a)  from a person attended by the medical practitioner in consequence of an accident in New South Wales, and

(b)  in accordance with provisions of a law of that State or Territory that substantially correspond to the provisions of section 20,

      may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of alcohol in the blood.

(5)  A police officer may arrange for a sample of a person’s blood taken in accordance with this Division to be submitted to a laboratory prescribed by the regulations for analysis to determine the concentration of alcohol, or of alcohol and other drugs, in the blood.

(5A)  The making of arrangements under subsection (5) for analysis of a blood sample to determine the concentration of alcohol in the blood operates to discharge the duty referred to in subsection (2) to make those arrangements.

(6)  A police officer may not make arrangements under subsection (5) for analysis of a blood sample to determine the concentration in the blood of a drug other than alcohol unless:

(a)  the following circumstances apply:

(i)  the accident that caused the person to attend at or be admitted to hospital was a fatal accident, and

(ii)  the person from whom the sample was taken was a person referred to in section 20 (5) (a), (b) or (f), or

(b)  the following circumstances apply:

(i)  the police officer has reasonable grounds to believe that, at the time of the accident concerned, the person from whom the sample was taken was under the influence of a drug other than alcohol, and

(ii)  no police officer attended the scene of the accident that led to the taking of the sample or, although a police officer or police officers attended the scene of the accident, there was no reasonable opportunity to require the person from whom the sample was taken to submit, in accordance with Division 5, to an assessment of his or her sobriety.

(7)  An analyst to whom a sample of blood, or a portion of a sample of blood (under subsection (4)), is submitted for analysis under this section may carry out an analysis of the sample, or of a portion of the sample, to determine the concentration of alcohol (and, where required, of other drugs) in the blood.

(8)  An analysis referred to in subsection (7) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample of blood, or the portion of the sample of blood, to be analysed and the breaking of any seal securing the sample or portion) 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.

24   Supervisee may perform functions of medical practitioner under this Division

(cf Traffic Act, ss 4F (8) and 4G (7))

(1)  Any duty of a medical practitioner under this Division and any relevant provisions of the regulations may be performed by a person acting under the supervision of the medical practitioner.

(2)  A duty performed by any such person is taken to have been performed by the medical practitioner.