4F   Blood samples to be taken in certain cases

(1)  Where a person of or above the age of 15 years attends at or is admitted into a hospital for examination or treatment in consequence of an accident upon a road or road related area (whether in New South Wales or elsewhere) involving a motor or other vehicle or a horse, it is the duty of any medical practitioner by whom the person is attended at the hospital to take as soon as practicable from the person a sample of the person’s blood for analysis, whether or not the person consents to the taking thereof.

(1A)  If there is no medical practitioner present to attend the person at the hospital, the blood sample is to be taken by a registered nurse who is attending the person and who is accredited by a hospital as competent to perform the sampling procedures.

(2)  This section does not require the taking of a sample of blood from a person involved in an accident upon a road or road related area involving a vehicle or horse unless the person was, at the time of the accident:

(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.

(3)  A medical practitioner or nurse is not required by this section to take a sample of a person’s blood:

(a)  if a sample of the person’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 member of the police force or has reasonable grounds to believe that the sample is required to be taken for the purposes of section 5AA.

(4)  Where a medical practitioner or nurse fails to take a person’s blood sample as required by this section, he or she shall be guilty of an offence under this Act.

(5)  It is a defence to a prosecution for an offence under subsection (4) 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 this section to take a sample of blood would be prejudicial to the proper care and treatment of the person,

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

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

(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 this section to take a sample of blood and it was reasonable for him or her not to have so believed,

(da)  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,

(e)  he or she did not know, and could not with reasonable diligence have ascertained, which of 2 or more persons involved in an accident upon 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 this section to take a sample or samples of blood,

(f)  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 thereafter, or

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

(6)  A person who hinders or obstructs a medical practitioner or nurse in attempting to take a sample of the blood of any other person in accordance with this section shall be guilty of an offence under this Act and shall be liable to a penalty not exceeding 20 penalty units.

(7)  Any person (other than a pedestrian or a person who was driving or riding a vehicle, not being a motor vehicle, or a horse, being a pedestrian or person involved in the accident concerned) who:

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

(b)  between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this section wilfully does anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of a medical practitioner or nurse, or a person of a prescribed class or description, for the proper care and treatment of the person),

      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,

      and, for the purposes of this subsection, where a person is guilty of an offence under this subsection, that offence:

(e)  is a second or subsequent offence under this subsection if and only if, within the period of 5 years immediately before being convicted of that offence, he or she was convicted of a major offence, and

(f)  otherwise shall be treated as a first offence.

(7A)  Any person (being a pedestrian or a person who was driving or riding a vehicle, not being a motor vehicle, or a horse, being a pedestrian or person involved in the accident concerned) who:

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

(b)  between the time of the accident concerned and the taking of a sample of the person’s blood in accordance with this section wilfully does anything to alter the concentration of alcohol in the person’s blood (except at the direction or under the supervision of a medical practitioner or nurse, or a person of a prescribed class or description, for the proper care and treatment of the person),

      shall be guilty of an offence under this Act and shall be liable to a penalty not exceeding 30 penalty units.

(7B)  It is a defence to a prosecution of a person for an offence under subsection (7) or (7A) 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.

(8)  Any duty of a medical practitioner under this section and any relevant provisions of the regulations may be performed by a person acting under the supervision of the medical practitioner, and in that event the duty shall be deemed to have been performed by the medical practitioner.

(9)  A person convicted of an offence:

(a)  under subsection (7), or

(b)  under section 5 (2),

      shall not be liable:

(c)  where he or she 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 he or she 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.

(10)  A person who has had a sample of blood taken in accordance with this section because of an accident is not to be charged with an offence under section 5 (2) if it is alleged as a component of the offence that the person was under the influence of alcohol and the offence relates to the same accident.

(11)  No civil or criminal liability is incurred by a medical practitioner or registered nurse in respect of anything properly and necessarily done by him or her in the course of taking a sample of the blood of a person where:

(a)  he or she believed on reasonable grounds that he or she was required to take the sample from the person under this section,

(b)  he or she believed on reasonable grounds that the person was involved in an accident upon a road or road related area (whether in New South Wales or elsewhere) involving a vehicle or horse and he or she did not know, and could not with reasonable diligence have ascertained, whether or not he or she was required to take the sample from the person under this section, or

(c)  he or she was informed by a member of the police force that the person was a person from whom he or she was required to take the sample under this section,

      nor by any person acting under the supervision of the medical practitioner as referred to in subsection (8).

(12)  In this section, a reference to a hospital includes a reference to any premises, institution or establishment prescribed as a hospital for the purposes of this section.