Drink Driving Blood Samples (WA)
Under the Road Traffic Act 1974, a police officer can require a blood sample from a person suspected of driving under the influence of alcohol or a drug.
Requiring a blood sample
A police officer can require a blood sample from a driver, or a person they suspect to have been a driver, if:
- the officer believes that the person has driven a vehicle that has been involved in an accident that caused death, personal injury or property damage;
- a breath test shows a person is over the general alcohol limit;
- the person refuses to undergo a breath test, or is incapable of undergoing a breath test, and the officer suspects the person is over the general alcohol limit;
- the person may have been providing instruction to a learner driver who was involved in an accident;
- a breath test shows no alcohol or a blood alcohol content that does not explain the person’s conduct, condition or appearance;
- the person physical condition prevents them from providing a sample of oral fluid;
- a breath analysis machine is not working;
- it is less than 4 hours since the driving.
The officer can direct the person to accompany them to a place for testing and wait at that place.
Taking a blood sample
The procedure for taking a blood sample is contained in the Road Traffic (Blood Sampling and Analysis) Regulations 1975. A “prescribed sample taker”, which includes a pathology collector or phlebotomist, must take 2 samples. The samples must have accompanying information that includes:
- a serial number or barcode;
- the details of the person from whom the sample was taken;
- the name and qualifications of the sample taker;
- the name and signature of the police officer who required the sample;
- the date and time the sample was collected;
- the name and signatures of those who delivered the sample to the analyst.
The Regulations state that the sample taker must follow a strict procedure that includes them examining sampling equipment to ensure it is sealed, intact and has not passed its expiry date, and that each sample container is inverted at least 20 times to mix its contents.
Under the Act, a person can request a blood sample delivered to the Chemistry Centre (WA) to be delivered to an analyst of their choosing for analysis. This needs to be done within 3 months of the sample arriving at the centre, and the person must pay the cost of delivery.
A certificate that contains details and results of blood sample testing can be used as evidence in any court proceeding.
A blood sample must not be used to obtain a person’s DNA. The penalty is imprisonment for 12 months.
If a person refuses to allow a prescribed sample taker to take a blood sample, or to accompany a police officer to a place for testing and wait there, they commit an offence. The penalty for a first offence is a fine of up to 50 penalty units ($2500), and a licence disqualification of no less than 10 months. For a second offence, the penalty is a fine of between 42 and 70 penalty units ($2100 to $3500) or 9 months imprisonment, and a licence disqualification of no less than 30 months. For a subsequent offence, the penalty is a fine of between 42 and 100 penalty units ($2100 and $5000) or imprisonment for 18 months, and a permanent licence disqualification.
It is a defence to prosecution for refusing to provide a blood sample if a person can prove there was a “substantial reason” for the refusal. This could be that:
- the person was 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;
- the person was incapable of providing the sample because of the events that occurred;
- more than 4 hours had passed when the request was made.
For advice or representation in any legal matter, please contact Armstrong Legal.