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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 (Qld)


Under the Transport Operations (Road Use Management) Act 1995, a police officer can require a blood sample from a person suspected of driving under the influence of alcohol or a drug.

Taking a sample

A police officer can require a person, while that person is at a police station, vehicle, boat, hospital or other place, to provide a blood sample in circumstances such as when the person:

  • refuses to give, or does not give a proper sample of breath or saliva;
  • has been arrested for driving under the influence or careless driving;
  • has been arrested for a serious offence arising from the driving of a motor vehicle, such as dangerous driving;
  • cannot supply a breath or saliva sample for medical reasons.

If a police officer reasonably believes the arrested person is showing signs of being affected by alcohol or a drug, but a breath test shows there is little or no alcohol in the person’s blood, and a saliva test show no relevant drug in the person’s saliva, the officer can require the person to provide a blood sample for laboratory testing. The officer can detain the person to enable a doctor or other health professional to attend to take a blood sample, or can take the person to a place where a doctor or other health professional can take a blood sample. This can happen whether or not the person consents to the sample being taken.

If a person produces a doctor’s certificate that states the person cannot produce a specimen of breath or saliva because of a stated illness or disability, the police officer must require a specimen of the person’s blood.

A police officer can request as many blood samples as necessary for testing.

As soon as practicable after a blood sample has been taken, the officer must arrange for it to be delivered to a laboratory. A laboratory analyst will provide a certificate stating:

  • the date, place and time the person’s blood was received from the officer; and
  • who tested the sample, and where and when; and
  • the concentration of alcohol in the person’s blood; or
  • a relevant drug or metabolite of a relevant drug was present in the person’s blood.

Accidents

A police officer can require a blood sample from a person if that person has been involved in an accident and is at a hospital for treatment. However, approval must be given by a doctor familiar with the person’s injuries and state of health, and the sample must be taken within 3 hours of the accident.

A police officer has the power to direct a doctor or nurse treating a person to take a blood sample from a person if the person is, or appears to be, unable to consent to the taking of the sample because they are unconscious or otherwise unable to communicate.

The doctor or nurse who takes a blood sample from a person must immediately take a second sample and give it to the person.

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. The maximum penalty is a fine of 40 penalty units ($5338) or 6 months imprisonment. That person will also be liable to the penalty, including licence disqualification, for driving under the influence of alcohol or a drug.

Police have the power to issue an immediate 24-hour licence cancellation if a blood sample is required but cannot be taken because:

  • the person is violent;
  • police believe the person is so affected by alcohol or a drug that the person is unable to provide a blood sample;
  • the area is so remote that a doctor or nurse is not available to take the blood sample.

A doctor or nurse must comply with a police officer’s request to take a blood sample from a person unless:

  • they believe that taking the sample would be prejudicial to the person’s treatment;
  • they have another reasonable excuse, such as an emergency in which a patient required immediate treatment and the sample could not be taken when required.

A police officer, or doctor or nurse must provide a certificate that states the person did not provide a specimen when requested. This certificate is used as evidence in any court proceeding.

Defences

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;
  • the request to provide a blood sample was not lawfully made;
  • they were incapable of providing the sample because of the events that occurred;
  • more than 3 hours had passed when the request was made;
  • there was another substantial reason.

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

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