Division 4A Blood and urine analysis of persons who are not accident patients following fatal accidents

24A   Power to arrest persons involved in fatal accidents for blood and urine tests

(1)  This section applies to a person who:

(a)  is at least 15 years old, and

(b)  at the time of an accident, was:

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

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

(iii)  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, and

(c)  is not an accident patient within the meaning of section 20.

(2)  A police officer may exercise the powers referred to in subsection (3) in relation to a person to whom this section applies if the police officer believes that:

(a)  the accident is a fatal accident, or

(b)  it is more likely than not that a person will die within 30 days as a consequence of the accident.

(3)  A police officer may:

(a)  arrest the person without warrant, and

(b)  take the person (or cause the person to be taken) with such force as may be necessary to a hospital or other prescribed place, and

(c)  detain the person, or cause the person to be detained, at the hospital or other prescribed place to enable the person to provide blood and urine samples in accordance with this Division.

(4)  In this Division, accident means an accident on a road or road related area involving a motor vehicle or other vehicle or a horse.

24B   Procedure for taking samples following arrest

(1)  Except as provided by section 24C, a police officer may require a person who has been arrested under section 24A to provide samples of the person’s blood and urine (whether or not the person consents to the samples being taken) in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.

(2)  The police officer must inform any such medical practitioner, registered nurse or prescribed sample taker that the samples are required to be taken for the purposes of this Division.

(3)  The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of 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.

(4)  The medical practitioner, registered nurse or prescribed sample taker must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the blood contains a drug.

(5)  The person from whom the sample of blood 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.

(5A)  A police officer may make the arrangements referred to in subsection (4). The making of such arrangements under this subsection operates to discharge the duty provided for in subsection (4) to make those arrangements.

(6)  The medical practitioner, registered nurse or prescribed sample taker under whose directions a sample of urine is provided in accordance with this Division must:

(a)  divide the sample into 2 approximately equal portions, and

(b)  place each portion into a container, and

(c)  fasten and seal each container, and

(d)  mark or label each container for future identification.

(7)  Of the 2 sealed containers:

(a)  one must be handed by the medical practitioner, registered nurse or prescribed sample taker to the person from whom it was taken or to some other person on behalf of that person, and

(b)  the other must be handed by the practitioner, nurse or prescribed sample taker to the police officer present when the sample was taken and forwarded to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the urine contains a drug.

(8)  An analyst at a laboratory prescribed by the regulations to whom any blood or urine is submitted for analysis under this section may carry out an analysis of the blood or urine to determine whether it contains a drug, but only if a police officer has notified the analyst in writing that a person involved in the accident that led to the sample of blood or urine being submitted for analysis:

(a)  has died within 30 days of the accident, or

(b)  has died during the period beginning 30 days after the accident and ending 12 months after the accident and a medical practitioner has given advice that the person died as a result of the accident.

(9)  Any duty of a medical practitioner, registered nurse or prescribed sample taker under this Division and any relevant provisions of the regulations may be performed by a person acting under the supervision of the practitioner, nurse or prescribed sample taker. A duty performed by any such person is taken to have been performed by the medical practitioner, registered nurse or prescribed sample taker.

(10)  An analysis under this section may be carried out, and anything in connection with the analysis (including the receipt of the blood or urine to be analysed and the breaking of any seal) 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.

(11)  A blood or urine sample that has been provided under this section must be destroyed by or at the direction of the analyst who has custody of the sample without being analysed if, at the expiry of 13 months after the accident concerned, no police officer has made a notification relating to a death under subsection (8).

24C   When taking of samples not permitted

A police officer cannot require a person to provide a sample under this Division:

(a)  if a medical practitioner, registered nurse or prescribed sample taker has objected on the grounds that compliance would be dangerous to the person’s health, or

(b)  if it appears to that officer that it would, because of any injuries to the person, be dangerous to the person’s medical condition to provide the sample, or

(c)  at any time after the expiration of 4 hours from the occurrence of the accident concerned.

24D   Offences related to testing for drugs

(1)  A person must not:

(a)  on being required under this Division by a police officer to provide samples of blood and urine:

(i)  refuse or fail to submit to the taking of the sample of blood, or

(ii)  refuse or fail to provide the sample of urine,

      in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker, or

(b)  between the time of the fatal accident concerned and the time when the person provides a sample that the person is required to provide under this Division, wilfully do anything to introduce, or alter the amount of, a drug in the person’s blood or urine (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).

(2)  It is a defence to a prosecution for an offence under subsection (1) (a) if the defendant satisfies the court that the defendant was unable, on medical grounds, to provide a sample when the defendant was required to do so.

(3)  It is a defence to a prosecution of a person for an offence under subsection (1) (b) of wilfully doing anything to introduce, or alter the amount of, a drug in the person’s blood or urine if the person satisfies the court that the thing was done more than 4 hours after the time of the fatal accident concerned.

(4)  If a medical practitioner, registered nurse or prescribed sample taker is informed by a police officer in accordance with this Division that a sample is required to be taken for the purposes of this Division, the medical practitioner, registered nurse or prescribed sample taker must not:

(a)  fail to take the sample, or

(b)  fail to comply with any requirement made by section 24B (3), (4), (6) or (7) in relation to the sample.

Maximum penalty: 20 penalty units.

(5)  It is a defence to a prosecution for an offence under subsection (4) if the medical practitioner, registered nurse or prescribed sample taker satisfies the court that:

(a)  the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the taking of the sample from the person would be prejudicial to the proper care and treatment of the person, or

(b)  the practitioner, nurse or prescribed sample taker believed on reasonable grounds that the person was less than 15 years of age, or

(c)  the practitioner, nurse or prescribed sample taker was, because of the behaviour of the person, unable to take the sample, or

(d)  there was other reasonable cause for the practitioner, nurse or prescribed sample taker not to take the sample.

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

Maximum penalty: 20 penalty units.