Section 4E4E Prescribed concentration of alcohol in person’s blood
(1) In this section:driver licence does not (except in subsection (1B)) include a provisional licence or learner licence.
first-year provisional licence means a provisional licence issued under the Road Transport (Driver Licensing) Act 1998 to a person who has not previously held, for a period of 12 months or more, a driver licence authorising the person to drive a motor vehicle.
(1A) A person who is the holder of a provisional licence issued under the Road Transport (Driver Licensing) Act 1998 shall, for the purposes of this section, be deemed to be the holder of a first-year provisional licence unless the person satisfies the court to the contrary.(1B) For the purposes of this section, a person is a special category driver in respect of a motor vehicle:(a) if the person:(i) is the holder of a learner licence, or(ii) is the holder of a first-year provisional licence,for motor vehicles of a class that includes that motor vehicle, or(b) if the person is not the holder of a licence which authorises the person to drive that motor vehicle because:(i) the person’s driver licence is suspended or has been cancelled, or(ii) the person has been disqualified from holding or obtaining a driver licence, or(iii) the person’s application for a driver licence has been refused, or(iv) the person (never having had authority to drive the vehicle in New South Wales by virtue of being the holder of a licence or permit issued in a place outside New South Wales) has never obtained a driver licence, or(c) if the person has no authority to drive that motor vehicle in New South Wales because:(i) the person is not the holder of a driver licence, and(ii) an authority which the person had to drive the vehicle in New South Wales by virtue of being the holder of a licence or permit issued in a place outside New South Wales is suspended or has been cancelled, or(d) if the person is under 25 years of age, unless the person has held a driver licence (apart from a learner licence) to drive a motor vehicle for a period of 3 years or more, or(e) if that motor vehicle is being driven for hire or reward, or in the course of any trade or business, as a public passenger vehicle within the meaning of the Passenger Transport Act 1990, or(f) if that motor vehicle is a coach or heavy motor vehicle, or(g) if that motor vehicle or trailer:(i) because it carries dangerous goods within the meaning of the Dangerous Goods Act 1975, is required by regulations under that Act, or under any code prescribed for the purposes of this paragraph by regulations under this Act, to have a sign exhibited on it, or(ii) carries any radioactive substance within the meaning of the Radiation Control Act 1990.(1C) For the purposes of this section, a person is a special category supervisor in respect of a motor vehicle if, were the person driving the motor vehicle, the person would be a special category driver in respect of the motor vehicle.(1D) Any person who, while there is present in the person’s blood the special range prescribed concentration of alcohol:(a) being a special category driver in respect of the motor vehicle, drives a motor vehicle, or(b) being a special category driver in respect of the motor vehicle, occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or(c) being a special category supervisor in respect of the motor vehicle and the holder of a driver licence, occupies the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle,is guilty of an offence under this Act and is liable:(d) in the case of a first offence—to a penalty not exceeding 10 penalty units, or(e) in the case of a second or subsequent offence—to a penalty not exceeding 20 penalty units.(1E) Any person who while there is present in his or her blood the low range prescribed concentration of alcohol:(a) drives a motor vehicle, or(b) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or(b1) being the holder of a driver licence, occupies the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle,shall be guilty of an offence under this Act and shall be liable:(c) in the case of a first offence—to a penalty not exceeding 10 penalty units, or(d) in the case of a second or subsequent offence—to a penalty not exceeding 20 penalty units.(1F) Any person who while there is present in his or her blood the middle range prescribed concentration of alcohol:(a) drives a motor vehicle, or(b) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or(b1) being the holder of a driver licence, occupies the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle,shall be guilty of an offence under this Act and shall be liable:(a) in the case of a first offence—to a penalty not exceeding 20 penalty units or to imprisonment for a period not exceeding 9 months or to both such penalty and imprisonment, or(b) in the case of a second or subsequent offence—to a penalty not exceeding 30 penalty units or to imprisonment for a period not exceeding 12 months or to both such penalty and imprisonment.(1G) Any person who while there is present in his or her blood the high range prescribed concentration of alcohol:(a) drives a motor vehicle, or(b) occupies the driving seat of a motor vehicle and attempts to put the motor vehicle in motion, or(b1) being the holder of a driver licence, occupies the seat in a motor vehicle next to a holder of a learner licence who is driving the vehicle,shall be guilty of an offence under this Act and shall be liable:(c) in the case of a first offence—to a penalty not exceeding 30 penalty units or to imprisonment for a period not exceeding 18 months or to both such penalty and imprisonment, or(d) in the case of a second or subsequent offence—to a penalty not exceeding 50 penalty units or to imprisonment for a period not exceeding 2 years or to both such penalty and imprisonment.(1H) For the purposes of subsection (1D), (1E), (1F) or (1G), where a person is guilty of an offence under that subsection, that offence:(a) is a second or subsequent offence under that subsection if and only if, within the period of five years immediately before being convicted of that offence, the person was convicted of a major offence, and(b) otherwise shall be treated as a first offence.(1I) If, on a prosecution of a person for an offence under subsection (1F), the court is satisfied that, at the time the person did the act referred to in subsection (1F) (a), (b) or (b1), as the case may be, there was not present in the person’s blood the middle range prescribed concentration of alcohol but there was present in the person’s blood the low range prescribed concentration of alcohol, the court may convict the person of an offence under subsection (1E).(1J) If, on a prosecution of a person for an offence under subsection (1G), the court is satisfied that, at the time the person did the act referred to in subsection (1G) (a), (b) or (b1), as the case may be, there was not present in the person’s blood the high range prescribed concentration of alcohol but there was present in the person’s blood:(a) the middle range prescribed concentration of alcohol, the court may convict the person of an offence under subsection (1F), or(b) the low range prescribed concentration of alcohol, the court may convict the person of an offence under subsection (1E).(1JA) If, on a prosecution of a person for an offence under subsection (1E), (1F) or (1G), relating to driving a motor vehicle or to occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion, the court is satisfied that, at the time the person drove the motor vehicle or occupied the driving seat and attempted to put the motor vehicle in motion:(a) the person was a special category driver in respect of the motor vehicle, and(b) there was not present in the person’s blood the high range prescribed concentration of alcohol, the middle range prescribed concentration of alcohol or the low range prescribed concentration of alcohol,but that there was present in the person’s blood the special range prescribed concentration of alcohol, the court may convict the person of an offence under subsection (1D).(1K) It is not a defence to a prosecution for:(a1) an offence under subsection (1D) if the defendant proves that, at the time the defendant did the act referred to in subsection (1D) (a), (b) or (c), as the case may be, there was present in the defendant’s blood a concentration of alcohol of 0.05 grammes or more in 100 millilitres of blood,(a) an offence under subsection (1E) if the defendant proves that, at the time he or she did the act referred to in subsection (1E) (a), (b) or (b1), as the case may be, there was present in the defendant’s blood a concentration of alcohol of 0.08 grammes or more in 100 millilitres of the defendant’s blood, or(b) an offence under subsection (1F) if the defendant proves that, at the time he or she did the act referred to in subsection (1F) (a), (b) or (b1), as the case may be, there was present in the defendant’s blood a concentration of alcohol of 0.15 grammes or more in 100 millilitres of the defendant’s blood.(1L), (2) (Repealed)(2A) Where a member of the police force has reasonable cause to believe that any person:(a) is or was driving a motor vehicle upon a road or road related area, or(b) is or was occupying the driving seat of a motor vehicle upon a road or road related area and attempting to put the motor vehicle in motion, or(c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle upon a road or road related area,a member of the police force may require that person to undergo a breath test in accordance with the directions of a member of the police force.(2AA) (Repealed)(2B) Without limiting any other power or authority, any member of the police force may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle, and any person who fails to comply with any request or signal made or given pursuant to this subsection shall be guilty of an offence under this Act and shall be liable to a penalty not exceeding 10 penalty units.(2C) (Repealed)(3) Where:(a) it appears to a member of the police force in consequence of a breath test carried out under subsection (2A) by the member:(i) on a person the member has reasonable cause to believe is a special category driver in respect of the motor vehicle concerned—that the device by means of which the test was carried out indicates that there may be present in that person’s blood a concentration of alcohol of not less than 0.02 grammes in 100 millilitres of the blood, or(ii) on any person—that the device by means of which the test was carried out indicates that there may be present in that person’s blood a concentration of alcohol of not less than 0.05 grammes in 100 millilitres of the blood, or(b) a person required by a member of the police force under subsection (2A) to undergo a breath test refuses or fails to undergo that test in accordance with the directions of that member,that member may thereupon arrest that person without warrant and take that person or cause that person to be taken with such force as may be necessary to a police station or some other place as that member considers desirable and there detain the person or cause the person to be detained for the purposes of the provisions hereinafter in this section provided.(4) A member of the police force may require a person who has been arrested under subsection (3) to submit, in accordance with the directions of that member, to a breath analysis.A breath analysis shall be carried out by a member of the police force authorised in that behalf by the Commissioner of Police at or near a police station or such other place as that member considers desirable.
(5) A member of the police force shall not require a person to undergo a breath test or to submit to a breath analysis:(a) if that person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of his or her treatment has been notified of the intention to make the requisition and the medical practitioner does not object on the grounds that compliance therewith would be prejudicial to the proper care or treatment of that person,(b) if it appears to that member that it would by reason of injuries sustained by that person be dangerous to that person’s medical condition to undergo a breath test or submit to a breath analysis,(c) at any time after the expiration of two hours from the occurrence of the event by reason of which that member was entitled under subsection (2A) to require that person to undergo a breath test, or(d) at that person’s usual place of abode.(6) Any person who when required by a member of the police force to undergo a breath test under subsection (2A) refuses or fails to undergo the breath test in accordance with the directions of a member of the police force shall be guilty of an offence under this Act and shall be liable to a penalty not exceeding 10 penalty units.(7) Any person who:(a) upon being required under subsection (4) by a member of the police force to submit to a breath analysis refuses or fails to submit to that analysis in accordance with the directions of a member of the police force, or(b) between the time of the event referred to in subsection (2A) (a), (b) or (c) in respect of which the person has been required by a member of the police force to undergo a breath test and the time when the person undergoes that test or, if the person is required by a member of the police force to submit to a breath analysis, the time when the person submits to that analysis, wilfully does anything to alter the concentration of alcohol in the person’s blood,shall be guilty of an offence under this Act and shall be liable:(c) in the case of a first offence—to a penalty not exceeding 30 penalty units or to imprisonment for a period not exceeding 18 months or to both such penalty and imprisonment, or(d) in the case of a second or subsequent offence—to a penalty not exceeding 50 penalty units or to imprisonment for a period not exceeding 2 years or to both such penalty and imprisonment.(7A) For the purposes of subsection (7), where a person is guilty of an offence under that subsection, that offence:(a) is a second or subsequent offence under that subsection if and only if, within the period of 5 years immediately before being convicted of that offence, the person was convicted of a major offence, and(b) otherwise shall be treated as a first offence.(8) It shall be a defence to a prosecution for an offence under subsection (6) or (7) (a) if the defendant satisfies the court that the defendant was unable on medical grounds at the time the defendant was required to do so to undergo a breath test or to submit to a breath analysis, as the case may be.(9)(a) A person who is required pursuant to subsection (4) to submit to a breath analysis may request the member of the police force making the requisition 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 legally qualified medical practitioner nominated by the person or by a legally qualified medical practitioner nominated by that member at the person’s request, but the making of such a request or the taking of a sample of that person’s blood shall not absolve that person from the obligation imposed on the person to submit to a breath analysis in accordance with subsection (4).(b) A medical practitioner by whom a sample of a person’s blood is taken pursuant to an arrangement referred to in paragraph (a) shall divide the sample into two approximately equal parts of which one shall be handed to the person from whom it was taken or to some other person for the use and benefit of that person and one, enclosed in a suitable sealed container, shall be handed to the member of the police force present at the time the sample was taken.(10) As soon as practicable after a person has submitted to a breath analysis the member of the police force operating the breath analysing instrument shall deliver to that person a statement in writing signed by that member specifying:(a) the concentration of alcohol determined by the analysis to be present in that person’s blood and expressed in grammes of alcohol in 100 millilitres of blood, and(b) the day on and time of the day at which the breath analysis was completed.(11) In proceedings for an offence under subsection (1D), (1E), (1F) or (1G), evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a member of the police force authorised in that behalf by the Commissioner of Police, and the concentration of alcohol determined as aforesaid shall be deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in subsection (2A) (a), (b) or (c), as the case may be, where the breath analysis was made within two hours after that event, unless the defendant proves that the concentration of alcohol in the defendant’s blood at that time was:(a1) in the case of an offence under subsection (1D), less than 0.02 grammes of alcohol in 100 millilitres of the blood,(a) in the case of an offence under subsection (1E), less than 0.05 grammes of alcohol in 100 millilitres of the defendant’s blood,(b) in the case of an offence under subsection (1F), less than 0.08 grammes of alcohol in 100 millilitres of the defendant’s blood, or(c) in the case of an offence under subsection (1G), less than 0.15 grammes of alcohol in 100 millilitres of the defendant’s blood,but nothing in this subsection affects the operation of subsection (1I), (1J) or (1JA).(12)(a) In proceedings for an offence under subsection (1D), (1E), (1F) or (1G) a certificate purporting to be signed by a member of the police force certifying that:(i) the member is authorised by the Commissioner of Police to operate breath analysing instruments,(ii) a person named therein submitted to a breath analysis,(iii) the apparatus used by the member to make the breath analysis was a breath analysing instrument within the meaning of this Act,(iv) the analysis was made on the day and completed at the time stated in the certificate,(v) a concentration of alcohol determined by that breath analysing instrument and expressed in grammes of alcohol in 100 millilitres of blood was present in the blood of that person on the day and at the time stated in the certificate, and(vi) a statement in writing required by subsection (10) was delivered in accordance with that subsection,shall be prima facie evidence of the particulars certified in and by the certificate.(b) In proceedings for an offence under this section a certificate purporting to be signed by the Commissioner of Police that the member of the police force named therein is authorised by the Commissioner of Police to operate breath analysing instruments shall be prima facie evidence of the particulars certified in and by the certificate.(c) In any proceedings for an offence under this section, evidence of the condition of a breath analysing instrument or the manner in which it was operated shall not be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.(13)(a) The fact that a person has undergone a breath test or submitted to a breath test analysis, the result of a breath test or breath analysis or the fact that a person has been convicted of an offence under subsection (1D), (1E), (1F), (1G), (6) or (7) shall not, for the purposes of any contract of insurance, be admissible as evidence of the fact that that person was at any time under the influence of or in any way affected by intoxicating liquor or incapable of driving or of exercising effective control over a motor vehicle, but nothing in this subsection precludes the admission of any other evidence to show any such fact.(b) The provisions of this subsection have effect notwithstanding anything contained in any contract of insurance and any covenant, term, condition or provision therein is to the extent that the operation of this subsection is excluded, limited, modified or restricted, void.(c) Any covenant, term, condition or provision contained in any contract of insurance, to the extent that it purports to exclude or limit the liability of the insurer in the event of the owner or driver of a motor vehicle being convicted of an offence under this section, is void, but nothing in this subsection precludes the inclusion in a contract of insurance of any other covenant, term, condition or provision whereby the liability of the insurer is excluded or limited.(14) A person convicted of an offence:(a) under subsection (7), or(b) under section 5 (2),shall not be liable:(c) where the person has been convicted of an offence referred to in paragraph (a), to be convicted of an offence referred to in paragraph (b), or(d) where the person has been convicted of an offence referred to in paragraph (b), to be convicted of an offence referred to in paragraph (a),if the offence referred to in paragraph (a), and the offence referred to in paragraph (b), arose directly or indirectly out of the same circumstances.(15) Where by reason of the occurrence of an event referred to in subsection (2A) (a), (b) or (c) a person is required by a member of the police force to undergo a breath test and as a consequence thereof to submit to a breath analysis and the person submits to the breath analysis in accordance with the directions of a member of the police force, the person shall not be charged with an offence under section 5 (2), being the offence of driving a motor vehicle, at the time of that event, whilst the person was under the influence of intoxicating liquor or the offence of occupying the driving seat of a motor vehicle and attempting to put such motor vehicle in motion, at the time of that event, whilst the person was under the influence of intoxicating liquor.