South Australian Consolidated Acts South Australian Consolidated Acts47EAA—Police may require drug screening test, oral fluid analysis and
blood test
(1) Subject to this
Act, if a person has submitted to an alcotest or breath analysis as a result
of a requirement under section 47E, a police officer may require the
person to submit to a drug screening test.
(a) a
person has submitted to a drug screening test as a result of a requirement
under subsection (1) and the drug screening test indicates the presence
of a prescribed drug in the person's oral fluid; or
(b) a
person has submitted to an alcotest or breath analysis as a result of a
requirement under section 47E that was made in prescribed circumstances,
a police officer may require the person to submit to an oral fluid analysis or
a blood test.
(2a) If a person
submits to an oral fluid analysis in compliance with a requirement made under
subsection (2) but the person is unable to produce sufficient oral fluid
for a sample to be taken, a police officer may require that the person submit
to a blood test.
(3) A police officer
may give reasonable directions for the purpose of making a requirement under
this section that a person submit to a drug screening test,
oral fluid analysis or blood test.
(4) A person must
forthwith comply with a direction under subsection (3).
Maximum penalty: $2 900.
(5) Without derogating
from section 47DA or 47EA, a drug screening test, oral fluid analysis or
blood test to which a person has been required to submit under this section
may not be commenced more than 8 hours after the conduct of the person giving
rise to the requirement that the person submit to the alcotest or
breath analysis.
(6) The performance of
a drug screening test, oral fluid analysis or blood test that has been
required under this section commences when a direction is first given by a
police officer that the person concerned provide a sample of oral fluid or
blood (as the case may be) to be used for the drug screening test,
oral fluid analysis or blood test.
(7) A
drug screening test or an oral fluid analysis may only be conducted by a
police officer authorised by the Commissioner of Police to conduct such tests
or analyses.
(8) The regulations
may prescribe the manner in which a drug screening test, oral fluid analysis
or blood test is to be conducted.
(9) A person required
under this section to submit to a drug screening test, oral fluid analysis or
blood test must not refuse or fail to comply with all reasonable directions of
a police officer in relation to the requirement and, in particular, must not
refuse or fail to allow a sample of oral fluid or blood to be taken in
accordance with the directions of a police officer.
Penalty:
(a) for
a first offence—a fine of not less than $900 and not more than
$1 300;
(b) for
a subsequent offence—a fine of not less than $1 500 and not more
than $2 200.
(10) It is a defence
to a prosecution under subsection (9) that—
(a) the
requirement or direction to which the prosecution relates was not lawfully
made; or
(b) the
person was not allowed the opportunity to comply with the requirement or
direction after having been given the prescribed oral advice in relation
to—
(i)
the consequences of refusing or failing to comply with
the requirement or direction; and
(ii)
in the case of—
(A) a drug screening test or an
oral fluid analysis—the person's right to request the taking of a blood
sample under subsection (11); or
(B) a blood test—the person's right
to request an oral fluid analysis under subsection (12); or
(c)
there was, in the circumstances of the case, good cause for the refusal or
failure of the defendant to comply with the requirement or direction.
(11) If a person of
whom a requirement is made or to whom a direction is given under this section
relating to a drug screening test or oral fluid analysis refuses or fails to
comply with the requirement or direction by reason of some physical or medical
condition of the person and forthwith makes a request of a police officer that
a sample of his or her blood be taken by a medical practitioner, a police
officer must do all things reasonably necessary to facilitate the taking of a
sample of the person's blood—
(a) by a
medical practitioner nominated by the person; or
(b)
if—
(i)
it becomes apparent to the police officer that there is
no reasonable likelihood that a medical practitioner nominated by the person
will be available to take the sample within 1 hour of the time of the request
at some place not more than 10 kilometres distant from the place of the
request; or
(ii)
the person does not nominate a particular medical
practitioner,
by any medical practitioner who is available to take the sample.
(12) If a person of
whom a requirement is made or to whom a direction is given under this section
relating to a blood test refuses or fails to comply with the requirement or
direction by reason of some physical or medical condition of the person and
forthwith makes a request of a police officer that an oral fluid analysis be
conducted, a police officer must do all things reasonably necessary to
facilitate the conduct of an oral fluid analysis unless—
(a) a
requirement or direction under this section relating to a drug screening test
or oral fluid analysis has been made of, or been given to, the person; and
(b)
—
(i)
the person refused or failed to comply with that
requirement or direction on the ground of some physical or medical condition
of the person and made a request under subsection (11) for a sample of
his or her blood to be taken in accordance with that subsection; or
(ii)
the person was unable to produce sufficient oral fluid
for a sample to be taken.
(13) No person is
entitled to refuse or fail to comply with a requirement or direction under
this section on the ground that—
(a) the
person would, or might, by complying with that requirement or direction,
furnish evidence that could be used against himself or herself; or
(b) the
person consumed a prescribed drug after the person last drove a motor vehicle
or attempted to put a motor vehicle in motion and before the requirement was
made or the direction given.
(14) A person may not
raise a defence that the person had good cause for a refusal or failure to
comply with a requirement or direction under this section relating to a
drug screening test or oral fluid analysis by reason of some physical or
medical condition of the person unless—
(a) a
sample of the person's blood was taken in accordance with
subsection (11); or
(b) the
person made a request as referred to in subsection (11), but—
(i)
a police officer failed to facilitate the taking of a
sample of the person's blood as required by that subsection; or
(ii)
a medical practitioner was not reasonably available for
the purpose of taking such a sample; or
(c) the
taking of a sample of the person's blood in accordance with
subsection (11) was not possible or reasonably advisable or practicable
in the circumstances by reason of some physical or medical condition of the
person.
(15) A person may not
raise a defence that the person had good cause for a refusal or failure to
comply with a requirement or direction under this section relating to a blood
test by reason of some physical or medical condition of the person
unless—
(a) an
oral fluid analysis was conducted in accordance with subsection (12); or
(b) the
person made a request as referred to in subsection (12), but a police
officer failed to facilitate the conduct of an oral fluid analysis as required
by that subsection; or
(c) the
taking of a sample of the person's oral fluid in accordance with
subsection (12) was not possible or reasonably advisable or practicable
in the circumstances by reason of some physical or medical condition of the
person.
(16) Where a court
convicts a person of an offence against subsection (9), the following
provisions apply:
(a) the
court must order that the person be disqualified from holding or obtaining a
driver's licence—
(i)
in the case of a first offence—for such period,
being not less than 6 months, as the court thinks fit; or
(ii)
in the case of a subsequent offence—for such
period, being not less than 2 years, as the court thinks fit;
(b) the
disqualification prescribed by paragraph (a) cannot be reduced or
mitigated in any way or be substituted by any other penalty or sentence
unless, in the case of a first offence, the court is satisfied, by evidence
given on oath, that the offence is trifling, in which case the court may order
a period of disqualification that is less than the prescribed minimum period
but not less than one month;
(c) if
the person is the holder of a driver's licence—the disqualification
operates to cancel the licence as from the commencement of the period of
disqualification;
(d) the
court may, if it thinks fit to do so, order that conditions imposed by section
81A or 81AB of the Motor Vehicles Act 1959 on any driver's licence issued
to the person after the period of disqualification be effective for a period
greater than the period prescribed by that section.
(17) In determining
whether an offence is a first or subsequent offence for the purposes of this
section, any previous drink driving offence or drug driving offence for which
the defendant has been convicted will be taken into account, but only if the
previous offence was committed within the prescribed period immediately
preceding the date on which the offence under consideration was committed.
(a)
refuses or fails to comply with a requirement or direction under this section;
or
(b)
submits to a drug screening test or oral fluid analysis and the drug
screening test or preliminary result of the oral fluid analysis indicates the
presence of a prescribed drug in the person's oral fluid,
there will be reasonable ground to suspect that a prescribed drug is present
in the person's oral fluid for the purposes of the exercise of any power
conferred on a police officer (including a power of arrest) to prevent the
person committing an offence by driving a vehicle in contravention of this
Division.
(19)
Subsection (18) does not limit the circumstances in which such a power
may otherwise be exercised by a police officer under this or any other Act.