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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Drink Driving Blood Samples (NSW)


Under the Road Transport Act 2013, a police officer can require a person to provide a blood sample, whether the person consents or not.

Taking a sample

A blood sample can be taken in situations such as when a person:

  • cannot physically submit to a breath test or oral fluid test;
  • refuses to submit to a breath test or oral fluid test, or does not complete it properly;
  • completes an oral fluid test that shows there may be one or more illicit drugs in the person’s system,
  • refuses to submit to a sobriety test or when a sobriety test shows they may be under the influence of a drug.

The sample taker must place the sample in a container, fasten and seal the container, mark or label the container, and give the person from whom the sample is taken a certificate with enough information to enable the sample to be identified as a sample of that person’s blood. The sample taker must then arrange to have the sample submitted to a laboratory for analysis to determine the concentration of alcohol in the blood, or whether the blood contains a prescribed illicit drug or another drug.

Accidents

When a person is treated at a hospital for injuries sustained in a traffic incident, a medical practitioner has a duty to take a sample of the person’s blood as soon as practicable. This can be done with or without the patient’s consent. If no medical practitioner is available, the sample is to be taken by a registered nurse.

A sample must be taken from an accident patient, over the age of 15, including a:

  • driver of a motor vehicle;
  • driver or rider of any other vehicle;
  • pedestrian;
  • horse rider;
  • driver licence holder supervising a learner driver who was driving a motor vehicle involved in an accident.

A police officer can arrest someone involved in an accident for the purpose of blood testing. This can be done if:

  • the person has not been hospitalised;
  • the officer believes someone has died in the accident or will die within 30 days as a result of it.

The officer can arrest the person and take them with as much force as necessary to a hospital or other place, to enable the person to provide a blood sample.

Requests

A person required to submit to a breath test can ask a police officer to arrange for a blood sample to be taken, so it can be analysed (at the person’s own expense) to determine the alcohol content of the person’s blood. This request does not excuse the person from the requirement to submit to a breath test.

A person can also apply to an authorised laboratory for a portion of a blood sample taken from them to be sent for analysis, at their own expense, to a medical practitioner or laboratory they choose. An application must be made within 12 months.

Refusal

Under the Act, a person must not refuse or fail to provide a sample of blood when directed to do so by a police officer or sample taker. For a first offence, the maximum penalty is a fine of 30 penalty units ($3300), and for a second or subsequent offence, the maximum penalty is 50 penalty units ($5500) or imprisonment for 18 months or both.

A person also must not prevent the taking of a blood sample from a person involved in an accident. For a first offence, the maximum penalty is a fine of 30 penalty units ($3300) or imprisonment for 18 months or both, and for a second or subsequent offence, the maximum penalty is 50 penalty units ($5500) or imprisonment for 2 years or both.

A person also must not hinder or obstruct the taking of a blood sample by a police officer. The maximum penalty is a fine of 20 penalty units ($2200).

An authorised sample taker must not refuse or fail to take a blood sample when required. The maximum penalty is a fine of 20 penalty units ($2200). The sample taker has a defence if they can prove that:

  • taking the sample would be prejudicial to the proper care and treatment of the person;
  • they believed the person was younger than 15;
  • they could not take a sample because of the person’s behaviour;
  • there was another reasonable cause not to take the sample.

If the failure to take a sample relates to a person involved in an accident, the sample taker has a defence if they can prove:

  • they did not believe the person had been involved in an accident;
  • they did not believe they were required to take a sample from the person;
  • more than 12 hours had passed since the accident;
  • they did not know which of 2 or more people involved in an accident was a person from whom a sample was to be taken.

Defence

It is a defence to prosecution for refusing to provide a blood sample if a person can prove they were unable to submit to the taking of a sample, or provide a sample, on medical grounds.

For advice or representation in any legal matter, please contact Armstrong Legal.

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