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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 (Vic)


Under the Road Safety Act 1986, a police officer can require a blood sample from a person suspected of driving under the influence of alcohol or a drug. The Road Safety (General) Regulations 2019 set out the procedure for taking a sample.

Taking a sample

A doctor or approved health professional who takes a blood sample must ensure:

  • the sample is placed in 2 dry containers;
  • each container is properly sealed;
  • each container is labelled with details including:
    • the signature of the doctor or approved health professional;
    • the date and time the sample was taken;
    • identifying information for the person from whom the sample was taken.

A person must not hinder or obstruct a doctor or approved health professional trying to take a blood sample.  The penalty is a fine of 12 penalty units ($1982.64).

A blood sample can be taken only for the purpose of determining whether alcohol or a drug is present in the sample, and the level or concentration of the alcohol or drug. Using a sample to obtain a person’s DNA is an offence which carries a maximum penalty of a fine of 120 penalty units ($19,826.40) or imprisonment for 12 months.

Accidents

If a police officer reasonably believes a person was driving a motor vehicle involved in an accident that resulted in death or serious injury, the officer can direct the person to provide a blood sample, to be taken by a doctor or approved health professional. The officer can require the person to accompany them to a place where the sample is to be taken and remain there until it has been taken or until 3 hours after the accident, whichever is sooner.

Any person aged over 15 who receives medical treatment after a motor vehicle accident must allow a doctor or approved health professional to take a blood sample from them. The penalty is a fine of 12 penalty units ($1982.64) for a first offence, 120 penalty units ($19,826.40) or imprisonment for 12 months for s second offence, and 180 penalty units ($29,739.60) or imprisonment for 18 months for a subsequent offence. Additionally, for a first offence, the person’s licence will be disqualified for 2 years, and 4 years for a subsequent offence.

A doctor or approved health professional can legitimately refuse to take a blood sample if they believe it would be prejudicial to the person’s proper care or treatment.

If a person is unconscious or otherwise unable to communicate, a doctor or approved health professional is permitted to take a sample of the person’s blood.

Defences

A certificate that contains the prescribed details of the concentration of alcohol in the blood sample, or the presence of a drug in the sample, and that is signed by an approved laboratory analyst, is admissible as evidence in court. A similar certificate signed by a doctor or approved health professional, or by an expert on the effect of substances on driving, can also be admitted as evidence.

However, the charged driver can apply for the court’s permission to cross-examine the person who has supplied the certificate. The court can grant this if it is satisfied:

  • the person who supplied the certificate has been given an opportunity to make a submission to the court;
  • there is a reasonable possibility the blood sample tested is not from the driver;
  • there is a reasonable possibility the blood sample has been contaminated;
  • there is a reasonable possibility the blood sample was not taken within 3 hours of the driving;
  • the giving of evidence by the person who supplied the certificate could help the court ascertain facts.

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 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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