South Australian Consolidated Acts South Australian Consolidated ActsSchedule 1A—Blood and oral fluid sample processes
Part
1—Preliminary
In this Schedule—
approved courier means a person approved by the Commissioner of Police under
the Road Traffic Act 1961 as a courier for the purposes of Schedule 1 of
that Act;
registered nurse means a person who is registered as a nurse under the law of
this State.
Part 2—Processes relating to blood samples under section 71, 72 or
74
2—Blood sample processes generally
The following provisions apply where a sample of blood is taken under
section 71, 72 or 74:
(a) a
medical practitioner by whom a sample of blood is taken must—
(i)
place the sample of blood, in approximately equal
proportions, in 2 separate containers marked with an identification
number distinguishing the sample from other samples of blood and seal the
containers; and
(ii)
give to the person from whom the sample was taken, or (in
the case of a sample taken under section 74) leave with the person's
personal effects at the hospital, a notice in writing—
(A) advising that the sample has been taken
under the relevant section; and
(B) advising that a container containing
part of the sample and marked with the identification number specified in the
notice will be available for collection by or on behalf of the person at a
specified place; and
(C) containing any other information
prescribed by the regulations; and
(iii)
complete and sign a certificate containing the
information required under paragraph (d); and
(iv)
make the containers and the certificate available to a
police officer;
(b) each
container must contain a sufficient quantity of blood to enable an analysis to
be made of the concentration of alcohol present in the blood or of the
presence of a prescribed drug in the blood;
(c) it
is the duty of the medical practitioner by whom the sample is taken to take
such measures as are reasonably practicable in the circumstances to ensure
that the blood is not adulterated and does not deteriorate so as to prevent a
proper analysis of the concentration of alcohol present in the blood, or the
presence of a prescribed drug in the blood;
(d) the
certificate referred to in paragraph (a) must state—
(i)
the identification number of the sample marked on the
containers referred to in that paragraph; and
(ii)
the name and address of the person from whom the sample
was taken; and
(iii)
the name of the medical practitioner by whom the sample
was taken; and
(iv)
the date, time and place at which the sample was taken;
and
(v)
that the medical practitioner gave the notice referred to
in that paragraph to the person from whom the sample was taken, or, as the
case may be, left the notice with the person's personal effects;
(e) one
of the containers containing the sample must—
(i)
as soon as reasonably practicable be taken by a police
officer or an approved courier to the place specified in the notice given to
the person or left with the person's personal effects under
paragraph (a); and
(ii)
be kept available at that place for collection by or on
behalf of the person for the period prescribed by the regulations;
(f)
after analysis of the sample in a container made available to a police officer
in accordance with paragraph (a), the analyst who performed or supervised
the analysis must sign a certificate containing the following information:
(i)
the identification number of the sample marked on the
container;
(ii)
the name and professional qualifications of the analyst;
(iii)
the date on which the sample was received in the
laboratory in which the analysis was performed;
(iv)
the concentration of alcohol or other drug found to be
present in the blood;
(v)
any factors relating to the sample or the analysis that
might, in the opinion of the analyst, adversely affect the accuracy or
validity of the analysis;
(vi)
any other information relating to the sample or analysis
or both that the analyst thinks fit to include;
(g) on
completion of an analysis of a sample, the certificate of the medical
practitioner by whom the sample was taken and the certificate of the analyst
who performed or supervised the analysis must be sent to the Minister or
retained on behalf of the Minister and, in either event, copies of the
certificates must be sent—
(i)
to the Commissioner of Police; and
(ii)
to the medical practitioner by whom the sample was taken;
and
(iii)
to the person from whom the sample was taken or, if the
person is dead, a relative or personal representative of the deceased;
(h) if
the whereabouts of the person from whom the sample is taken, or (that person
being dead) the identity or whereabouts of a relative or personal
representative of the deceased, is unknown, there is no obligation to comply
with paragraph (g)(iii) but copies of the certificates must, on
application made within 3 years after completion of the analysis, be furnished
to any person to whom they should, but for this paragraph, have been sent.
3—Blood tests by registered nurses
If a person has made a request under section 71(10) or 72(12), or is
required to submit to a blood test under section 72(2) or (3), at a place
outside Metropolitan Adelaide—
(a) a
sample of the person's blood may be taken by a registered nurse instead of a
medical practitioner for the purposes of section 71(10) or 72(12) or this
Schedule; and
(b) the
provisions of this Act and the regulations under this Act apply in relation to
the taking of the sample of the person's blood and the subsequent dealing with
the sample as if a reference in those provisions to a medical practitioner
included a reference to a registered nurse.
4—Police officer to be present when blood sample taken
The taking of a sample of blood under section 71(10) or 72(2), (3)
or (12) must be in the presence of a police officer.
5—Cost of blood tests under certain sections
The taking of a sample of blood under section 71(10), 72(12) or 74 must
be at the expense of the Crown.
6—Provisions relating to medical practitioners etc
(1) No proceedings lie
against a medical practitioner or registered nurse in respect of anything done
in good faith and in compliance, or purported compliance, with the provisions
of this Act.
(2) A medical
practitioner must not take a sample of a person's blood under this Act if, in
his or her opinion, it would be injurious to the medical condition of the
person to do so.
(3) A medical
practitioner is not obliged to take a sample of a person's blood under this
Act if the person objects to the taking of the sample of blood and persists in
that objection after the medical practitioner has informed the person that,
unless the objection is made on genuine medical grounds, it may constitute an
offence against this Act.
(4) A medical
practitioner who fails, without reasonable excuse, to comply with a provision
of, or to perform any duty arising under, section 74 is guilty of an
offence.
Maximum penalty: $2 500.
(5) No proceedings can
be commenced against a medical practitioner for an offence against
subclause (4) unless those proceedings have been authorised by the
Attorney-General.
(6) An apparently
genuine document purporting to be signed by the Attorney-General and to
authorise proceedings against a medical practitioner for an offence under
subclause (4) must, in the absence of proof to the contrary, be accepted
by any court as proof that those proceedings have been authorised by the
Attorney-General.
Part 3—Processes relating to oral fluid samples under section 72
The following provisions apply where a sample of oral fluid is taken under
section 72(2):
(a) the
police officer who conducts the oral fluid analysis must—
(i)
place the sample of oral fluid (and any reagent or other
substance required by the regulations to be added to the sample) in
approximately equal proportions, in 2 separate containers marked with an
identification number distinguishing the sample from other samples of
oral fluid and seal the containers; and
(ii)
give to the person from whom the sample was taken a
notice in writing—
(A) advising that the sample has been taken
under section 72(2); and
(B) advising that a container containing
part of the sample and marked with the identification number specified in the
notice will be available for collection by or on behalf of the person at a
specified place; and
(C) containing any other information
prescribed by the regulations; and
(iii)
complete and sign a certificate containing the
information required under paragraph (d);
(b) each
container must contain a sufficient quantity of oral fluid to enable an
analysis to be made of the presence of a prescribed drug in the oral fluid;
(c) it
is the duty of the police officer who conducts the oral fluid analysis to take
such measures as are reasonably practicable in the circumstances to ensure
that the sample is not adulterated (other than as required under
paragraph (a)) and does not deteriorate so as to prevent a proper
analysis of the presence of a prescribed drug in the oral fluid;
(d) the
certificate referred to in paragraph (a) must state—
(i)
the identification number of the sample marked on the
containers referred to in that paragraph; and
(ii)
the name and address of the person from whom the sample
was taken; and
(iii)
the identification number of the police officer by whom
the sample was taken; and
(iv)
the date, time and place at which the sample was taken;
and
(v)
that the police officer gave the notice referred to in
that paragraph to the person from whom the sample was taken;
(e) one
of the containers containing the sample must—
(i)
as soon as reasonably practicable be taken by a police
officer or an approved courier to the place specified in the notice given to
the person under paragraph (a); and
(ii)
be kept available at that place for collection by or on
behalf of the person for the period prescribed by the regulations;
(f)
after analysis of the sample in a container referred to in paragraph (a),
the analyst who performed or supervised the analysis must sign a certificate
containing the following information:
(i)
the identification number of the sample marked on the
container;
(ii)
the name and professional qualifications of the analyst;
(iii)
the date on which the sample was received in the
laboratory in which the analysis was performed;
(iv)
the information required by the regulations in relation
to any prescribed drug or drugs found to be present in the sample;
(v)
any factors relating to the sample or the analysis that
might, in the opinion of the analyst, adversely affect the accuracy or
validity of the analysis;
(vi)
any other information relating to the sample or analysis
or both that the analyst thinks fit to include;
(g) on
completion of an analysis of a sample, the certificate of the analyst who
performed or supervised the analysis must be sent to the Minister or retained
on behalf of the Minister and, in either event, copies of the certificates
must be sent—
(i)
to the Commissioner of Police; and
(ii)
to the person from whom the sample was taken or, if the
person is dead, a relative or personal representative of the deceased;
(h) if
the whereabouts of the person from whom the sample is taken, or (that person
being dead) the identity or whereabouts of a relative or personal
representative of the deceased is unknown, there is no obligation to comply
with paragraph (g)(ii) but copies of the certificates must, on
application made within 3 years after completion of the analysis, be furnished
to any person to whom they should, but for this paragraph, have been sent.
Part 4—Other provisions relating to blood or oral fluid samples under
Part 10 Division 4
8—Blood or oral fluid sample or results of analysis etc not to be used
for other purposes
(1) A sample of blood
or oral fluid taken under Part 10 Division 4 (and any other forensic material
taken incidentally during a drug screening test, oral fluid analysis or blood
test) must not be used for a purpose other than that contemplated by this Act.
(2) The results of a
drug screening test, oral fluid analysis or blood test under Part 10 Division
4, an admission or statement made by a person relating to such a
drug screening test, oral fluid analysis or blood test, or any evidence taken
in proceedings relating to such a drug screening test, oral fluid analysis or
blood test (or transcript of such evidence)—
(a) will
not be admissible in evidence against the person in any proceedings, other
than proceedings for an offence against this Act or an offence involving the
operation or crewing of a vessel; and
(b) may
not be relied on as grounds for the exercise of any search power or the
obtaining of any search warrant.
9—Destruction of blood or oral fluid sample taken under Part 10 Division
4
The Commissioner of Police must ensure that a sample of blood or oral fluid
taken under Part 10 Division 4 (and any other forensic material taken
incidentally during a drug screening test, oral fluid analysis or blood test)
is destroyed—
(a) if
proceedings for an offence of a kind referred to in clause 8(2)(a) based
on evidence of the results of analysis of the sample are not commenced within
the period allowed; or
(b) if
such proceedings are commenced within the period allowed—when the
proceedings (including any proceedings on appeal) are finally determined or
discontinued.