Drink Driving Offences

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DRINK AND DRUG DRIVING OFFENCES

This section contains information on drink driving.  The section sets out the procedures the police follow when ascertaining whether someone is driving with alcohol and/ or drugs in their body.  It also sets out the various offences which can be committed where alcohol and/ or drugs are detected in someone’s body as well as the range of penalties which can be imposed.

It can be a technical area of the law.  Our solicitors can provide detailed advice in relation to all matters relating to drink and drug driving. 

Unless otherwise stated, all references to “the Act” refer to the Road Traffic Act 1974 (WA)

DRINK DRIVING

There are a number of offences which someone may be charged with which arise from being detected driving or attempting to drive a motor vehicle whilst there is alcohol present in their blood.  It is important to note that a person can commit the offences even if they are only attempting to drive.  The police do not have to prove the person was actually driving.  For example, if they were sitting in the driver’s seat with the car key in their hand only, that could be enough to prove they were attempting to drive the vehicle.

The law governing drink driving is quite complex.  The content below is designed to be a guide.  Our solicitors can give you more detailed and specific advice based on your particular circumstances.

 Drink driving offences relate to the level of alcohol which is found to be in a person’s blood.  The offences can be broadly classified as:

  • s.63 – Driving under the influence of alcohol;
  • s.64 – Driving with a blood alcohol content of or above 0.08;
  • s.64AA – Driving with a blood alcohol content between 0.05 and less than 0.08;
  • s.64A – Driving with a blood alcohol content of or above 0.02 in certain cases; and
  • s.64AAA – Driving with any blood alcohol content at all in certain circumstances.

Which Blood Alcohol Content is Applicable to a Person?

The blood alcohol content applicable to each person can be affected by several factors.  The default blood alcohol content applicable to drivers is 0.05.  Drivers must not have a blood alcohol content of 0.05 or higher.  However, if a person falls into any of the following categories they cannot have any alcohol whatsoever in their blood:

  • A person has been convicted of an “alcohol interlock offence” that was committed on or after 24 October, 2016; or
  • A person is a “novice driver” – this means that they have held a driver’s licence for less than two years in total; or
  • A person is a “recently disqualified driver” – this means that;
    • in the last three years they ceased to be subject to an order disqualifying them from holding or obtaining a driver’s licence that was imposed as the result of an offence of driving under the influence of alcohol or an offence where they were convicted of a subsequent offence for exceeding a blood alcohol content of 0.08; or
  • A person holds an “Extraordinary licence” which is a licence that can be granted by the Court in some circumstances which allows them to drive with strict conditions where they have been otherwise disqualified from holding or obtaining a driver’s licence; or
  • A person’s driver’s licence has been cancelled for an offence of “driving under the influence of alcohol”, “driving whilst impaired by drugs” or failing to comply with or refusing to undergo a driver assessment AND they have been convicted of any of these offences previously; or
  • A person’s driver’s licence was cancelled for the offence of having a blood content of or above 0.08 and within the last five years (before this conviction) they were convicted for:
    • Driving under the influence of alcohol;
    • Driving whilst impaired by drugs;
    • Failing to comply with or refusing to undergo a driver assessment.
  • A person cannot have any alcohol whatsoever in their blood when driving the following vehicles;
    • A vehicle which can carry twelve or more people and at the time of driving they are carrying passengers; or
    • A bus being driven for hire or reward which is carrying passengers; or
    • A taxi which is being driven for hire or reward and is carrying passengers;
    • A vehicle which exceeds a total weight of 22.5 tonnes; or
    • A specific vehicle which is carrying dangerous goods.

s.66(1) When Can Police Require a Person to Provide a Preliminary Breath Test?

The police can require any person in charge of a motor vehicle or any person they reasonably believe was driving or in charge of a motor vehicle to submit to a preliminary breath test.  Further, if the police believe that a motor vehicle caused or contributed to an injury to a person or damage to property, the police can require any person they reasonably believe to have been driving or in charge of the vehicle at the relevant time to perform a preliminary breath test.

If the police require a person to perform a preliminary breath test, they can require them to wait at the location for the purposes of conducting the test.  This means they can’t leave prior to the test being conducted.  If they do they will commit an offence.  The police can also require a person to get out of the vehicle so they can do the test.

s.66 When Can Police Require a Person to Provide a Sample of Breath for Analysis?

There are many situations where police can require that a person provide a sample of breath for analysis.  They are set out below but can be confusing.  One of our solicitors can give you advice specific to your situation.

If the police require a person to perform a preliminary breath test and that test indicates to them that the person’s blood alcohol content is at or above the limit that applies to them at the time, they may further require them to provide a sample of breath to be formally analysed to accurately establish their blood alcohol content.  In some circumstances, police can also require that a person provide a urine sample or allow a sample of their blood to be taken to be analysed.

Police can also require that a person provide a sample of breath for analysis in the following situations:

  • They refuse, fail to or are incapable of providing a sample of breath for a preliminary breath test; or
  • Police believe on reasonable grounds that they have committed the offence of driving under the influence of alcohol, drugs or both; or
  • Police believe on reasonable grounds they have committed the offence of dangerous driving causing “death or grievous bodily harm” or “bodily harm” and at the time they were driving whilst under the influence of alcohol, drugs or both, and police don’t know exactly who was driving the vehicle but have reasonable grounds to suspect it was the person.  If they were supervising a learner driver who committed any of these offences, the police may require them to provide a sample of breath for analysis; or
  • Police do not know or have doubts about who was driving but believe on reasonable grounds that they were driving a motor vehicle when the driving of that vehicle caused or contributed to personal injury to a person or damage to property.  If the police reasonably believe that they may have committed the offence of driving under the influence of drugs, alcohol or both at the relevant time they can require the person to provide a sample of breath for analysis; or
  • If they were supervising a learner driver when the use of the motor vehicle caused or contributed to personal injury to a person or damage to property and the police believe on reasonable grounds that they would have committed the offence of driving under the influence of alcohol, drugs or both if they were driving the car instead of the learner driver.

If police require a person to provide a sample of breath, they must comply.  Police can also require someone to accompany them to a police station or other relevant place for the purpose of providing that sample and to remain there to allow the sample to be obtained. 

There are two circumstances where a person cannot be required to provide a sample of their breath for analysis:

  • The sample of their breath could not be provided within 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle; or
  • They are incapable of providing a sample of breath for analysis.

s.66  When Can Police Require a Person to Provide A Sample of Blood for Analysis?

In some situations the police can require that a person consent to a sample of blood being taken for analysis to establish their blood alcohol content.  These situations are:

  • They are physically incapable of providing a sample of breath for analysis; or
  • They have provided two samples of breath for analysis and the breath analysing equipment has failed to analyse the samples.

Similar to providing a sample of breath for analysis, a person cannot – with one exception explained below – be required to provide a sample of blood for analysis if the sample cannot be taken within 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle.

If  a person may have been driving or on charge of a motor vehicle when its presence caused or contributed to the death or serious bodily harm to someone, the police may require that they provide a sample of blood for analysis provided it can be taken within 12 hours of the relevant driving or being in charge.  If they are incapable of complying, the police can facilitate the taking of the sample from them.

The police may also require that a person provide a sample of blood (or urine) for analysis where:

  • They provided a sample of breath for analysis; and
  • The analysis showed their blood contained no alcohol or insufficient to explain their conduct which caused the sample to be taken.

Where police require a person to provide a sample of blood for analysis, they may require that they accompany them to a place for the taking of that sample and to remain there until the sample has been taken.

s.66 When Can Police Require a Person to Provide a Sample of Urine for Analysis?

Under most circumstances where the police have required that a person provide a sample of blood for analysis, they may also require that they provide a sample of urine for analysis.

Similarly to the taking of breath and blood samples, a sample of urine for analysis cannot be taken outside 4 hours of the relevant time of driving or attempted driving, management or use of the motor vehicle.

s.71 How do Police Calculate a Person’s Blood Alcohol Content?

In order to establish a person’s blood alcohol content at the time of driving or being in charge of the vehicle, there is a formula they use.  The police will establish, if possible:

  • The time they last consumed alcohol; and
  • The time they were driving or in charge of the vehicle; and
  • The time of the taking of the breath or blood sample.

Using these three times, the police will calculate the blood alcohol level they allege was present at the relevant time.  To do this they will;

  • Calculate how much the person’s blood alcohol content increased from the time they last consumed alcohol to the time they were driving or in charge of the vehicle.  This is calculated on the basis that their blood alcohol content will increase by 0.016 per hour for two hours after they last consumed alcohol; and
  • Calculate how much their blood alcohol content may have decreased since the time they were driving or in charge of the vehicle.  This is calculated on the basis that their blood alcohol content will reduce by 0.016 per hour after it has reached its peak level.

If the police cannot accurately establish the time a person last consumed alcohol or were driving or in charge of the vehicle, this calculation will be performed in a manner which produces the result which is most favourable to the driver.

Offences Involving Drink Driving

s.63 Driving Under the Influence of Alcohol and/ or Drugs

This offence relates to being detected driving or attempting to drive a motor vehicle whilst a person is under the effect of:

  • Alcohol; or
  • Drugs; or
  • A combination of alcohol and drugs;

to such an extent that they are incapable of having proper control of the vehicle.  This means that they are intoxicated to such an extent that it impairs their ability to drive. 

To prove this offence, the police can seek to rely on their observations – or the observations of other people – in relation to the manner of a person’s driving.  To be guilty of this offence the police do not need to prove that their blood alcohol content was above a certain level: it can be committed at any level.  However; if a person is found to have a blood alcohol content of 0.150 or above they will be deemed to be incapable of having proper control of a motor vehicle.  This means that if they are detected with a blood alcohol content of or above 0.150, they will be charged with this offence. 

If a person is charged with this offence, they can also be charged with another drink driving offence based on their actual blood alcohol content; for example, driving with a blood alcohol content of or above 0.08. However; they will only be found guilty of –and punished for – one offence at Court.

If a person is charged with this offence and has been arrested or is in custody the police must inform them that:

  • They have the right to be examined by a medical practitioner nominated by them, if one is available; and 
  • They have the right to communicate with a legal practitioner and another person nominated by them.

This does not apply if they are charged after a sample of blood which was previously taken from them has been analysed.

Can a Person Defend This Charge?

There are three broad areas which may result in the police not being able to prove this charge in Court:

  • The police did not follow the correct procedure in establishing the person’s blood alcohol content; or
  • The evidence of the police does not establish that the person was incapable of having proper control of the motor vehicle; or
  • The person can prove that their driving was affected by something other than alcohol: it is important to note that if their ability to drive was affected by drugs or a combination of alcohol and drugs then they could be charged with this offence on that basis.  These two charges are discussed separately.

Penalties

The penalties for driving under the influence of alcohol or drugs are set out in the table below.  Please note that if a person has ever been convicted of an offence of:

  • Driving while impaired by drugs; or
  • Failure to comply with a requirement to provide a sample, allow sample to be taken or to accompany police officer to allow a sample to be taken; or
  • Failure to comply with requirement to do a driver assessment or provide blood or urine sample;

those convictions will be considered to be a previous conviction for this offence.

OffenceFine $Minimum Licence DisqualificationMinimum Period Before Application for Extraordinary Licence Can be MadeMaximum Imprisonment
First (if not previously convicted of exceeding 0.08)900.00 – 2500.0010 months21 daysN/A
First and previously convicted of exceeding 0.08up to $2500.00 PLUS an amount not less than the minimum fine which would have been imposed in relation to the person’s blood alcohol content had they been charged with being in excess of 0.08 (refer penalty table for that offence)This will depend on the person’s blood alcohol content – refer to the penalty table for exceeding 0.083 monthsN/A
Second2100.00 – 3500.0030 months4 months9 months
Third or more2100.00 – 5000.00life4 months18 months

s.64AA Driving with a Blood Alcohol Content of or Above 0.05

Whilst there are separate offences for being or exceeding 0.05 but being less than 0.08 and for being or exceeding 0.08, the offences are essentially the same.  The difference is how each is dealt with by police or the Courts.

If a person is detected driving or in charge of a motor vehicle with a blood alcohol content of 0.05 or more but less than 0.08 they may be given a penalty notice if it is their first offence or required to attend Court. 

If they are given a penalty notice, the following penalties will apply for a first offence.  Please note that all penalties are for a person who had a full driver’s licence with no restrictions which make a lesser blood alcohol content relevant:

Blood Alcohol ContentInfringement amount $Maximum Court Penalty $Demerit Points
0.05 – <0.06400.00500.003
0.06 – <0.07400.00500.004
0.07 – <0.08400.00500.005

If a person is required to attend Court for a drink driving offence where their blood alcohol content is 0.05 or higher but less than 0.08, the following table sets out the relevant penalties the Court can impose:

Blood Alcohol ContentSecond OffenceSubsequent OffenceMinimum Period Before Application for Extraordinary Licence Can be Made
0.05 – < 0.07Minimum: $500.00 Maximum: $1000.00 Disqualification: 6 monthsMinimum: $500.00 Maximum: $1000.00 Disqualification: 8 months21 days
0.07 – < 0.08Minimum: $600.00 Maximum: $1000.00 Disqualification: 8 monthsMinimum: $600.00 Maximum: $1000.00 Disqualification: 10 months21 days

s.64 Driving with a Blood Alcohol Content of or Above 0.08

A person charged with this offence cannot receive a penalty notice and must appear in court.

The following table sets out the relevant penalties the Court can impose on a person charged with a drink driving offence where their blood alcohol content is 0.08 or higher:

Blood Alcohol ContentFirst OffenceSecond OffenceSubsequent Offence
0.08 – <0.09 Minimum: $ Maximum: $ Disqualification:  500.00 1500.00 6 months  600.00 1500.00 8 months  600.00 1500.00 10 months
0.09 – < .11 Minimum: $ Maximum: $ Disqualification:  550.00 1500.00 7 months  900.00 1500.00 10 months  900.00 1500.00 13 months
.11 – < .13 Minimum: $ Maximum: $ Disqualification:  650.00 1500.00 8 months  1200.00 2000.00 14 months  1200.00 2000.00 17 months
.13 – < .15 Minimum: $ Maximum: $ Disqualification:  750.00 1500.00 9 months  1600.00 2500.00 18 months  1600.00 3000.00 30 months
.15 or more Minimum: Maximum:   Disqualification:  900.00 2500.00 10 months  2100.00 3500.00 or 9 months imprisonment 30 months  2100.00 5000.00 or 18 months imprisonment Life
Minimum Period Before Application for Extraordinary Licence Can be Made21 days2 months – this also applies for a first offence under this section of the person has previously been convicted for an offence against s.67A3 months

ss.64A and 64AAA Driving with a Blood Alcohol Content of less than 0.05

If a person is subject to a blood alcohol content of 0.00 and is caught driving or in charge of a motor vehicle with a blood alcohol content of less than 0.05, the following penalties apply:

Blood Alcohol ContentPenalty Notice Infringement $Minimum Court Penalty $Maximum Court Penalty $Demerit Points or DisqualificationMinimum Period Before Application for Extraordinary Licence Can be Made
Above 0.00 but < 0.02100150.00300.003 demerit pointsnot applicable
0.02 – < 0.05N/A150.00300.003 month disqualification21 days if the disqualification is ordered by a court, otherwise – not applicable

s.67 Failure to Comply with a Requirement to Provide Sample, Allow Sample to be Taken or to Accompany Police Officer

This offence can be committed in various ways.  It is an offence for a person to fail to comply with a lawful requirement by police to:

  • Provide a sample of their breath for analysis; or
  • Allow a prescribed sample taker to take a sample of their blood for analysis; or
  • Provide a prescribed sample taker with a sample of their urine; or
  • Accompany a police officer to a police station or other place for the purpose of obtaining a relevant sample and waiting at that place for the sample to be taken.

There are two possible defences to this charge:

  • The person’s failure to comply with the requirement was due to a “substantial reason”.  This does not include merely wanting to avoid providing the sample because it may be used as evidence against them.  For the Court to accept that they had a “substantial reason” for failing to comply, the reason would need to be very compelling; or
  • If a person is charged with failing to comply with a requirement to provide a sample of their urine, it is a defence if they can satisfy the Court that they attempted to comply but were not able to.

Penalties

The following table sets out the penalties for this offence:

OffenceFine $Minimum DisqualificationMinimum Period Before Application for Extraordinary Licence Can be MadeImprisonment
First – if previously convicted for driving with a blood alcohol content of .08 or moreA fine that is not less than the person would have received if they had been charged with driving with a blood alcohol content of above .014 instead of this charge PLUS an additional amount not greater than 2500.00A period not less than the person would have received if they had been charged with driving with a blood alcohol content of above .014 instead of this charge3 monthsNot applicable
First – not previously convicted for driving with a blood alcohol content of .08 or more900.00 – 2500.0010 months21 days or 3 months if previously convicted of failing to comply with requirement under s.66.Not applicable
If the police inform the person that they believe the vehicle they were driving was involved in an accident which caused the death or grievous bodily harm to a personIf summarily convicted and no person was killed – up to 8000.00       If convicted other than summarily – a fine of any amount the Court determinesIf summarily convicted and no person was killed –  18 months       If convicted other than summarily – 2 years    21 days or 3 months if previously convicted of exceeding 0.08 or failing to comply with requirement under s.66.If summarily convicted and no person was killed – up to 18 months (instead of a fine)   If convicted other than summarily – up to 14 years (in addition to any fine)
Second2100.00 – 3500.0030 months4 months9 months (instead of a fine)
Subsequent2100.00 – 5000.00Life4 months18 months (instead of fine)

Note that if a person has previously been convicted of the offence of driving under the influence of alcohol, drugs or both, that/ those conviction/s will be considered previous convictions for the purpose of ascertaining if their offence is a first, second or subsequent offence.

DRUG DRIVING

What is a “Drug”?

For the purposes of the offences of “driving under the influence of drugs” and “driving while impaired by drugs”, the definition of “drug” is:

  • A drug to which the Misuse of Drugs Act 1981 applies; or
  • A drug listed as a poison in schedule 4 of the Medicines and Poisons Act 2014 section 3; or
  • A substance (other than alcohol) that, when consumed or used by a person, deprives the person (temporarily or permanently) of any of the person’s normal mental or physical faculties.

This means that the definition is very wide and covers many drugs including legal ones.

When Can the Police Require a Person to Provide an Oral Fluid Sample?

s.66C Preliminary Oral Fluid Sample

The police can require any person in charge of a motor vehicle or any person they reasonably believe was driving or in charge of a motor vehicle to submit to a preliminary oral fluid test.  Further, if the police believe that a motor vehicle caused or contributed to an injury to a person or damage to property, the police can require any person they reasonably believe to have been driving or in charge of the vehicle at the relevant time to submit to a preliminary oral fluid test.

If the police require a person to perform a preliminary oral fluid test, they can require them to wait at the location for the purposes of conducting the test.  This means the person can’t leave prior to the test being conducted.  If they do they will commit an offence.  The police can also require a person to get out of the vehicle so they can do the test.

The test involves the police using a prescribed device which wiped on the person’s tongue to collect oral fluid.

s.66D Oral Fluid Sample

An oral fluid sample is used by police to test for the presence of a prescribed illicit drug.  It is a more accurate test that the preliminary oral fluid test discussed above.  Police can require a person to provide an oral fluid sample if:

  • They have provided a preliminary oral fluid sample and the police officer believes  that that sample indicates that their oral fluid contains a prescribed illicit drug; or
  • They refuse or fail to undergo a preliminary oral fluid test after they have been required to do so by police.

To collect this oral fluid sample, the police use a prescribed detection system.  It involves the police using a swab to collect oral fluid from around the person’s gums, tongue and the inside of their cheeks.  The police will then use the prescribed device to analyse the sample taken to ascertain the presence of any of the prescribed illicit drugs mentioned.

If police require a person to provide a sample of oral fluid, they must comply.  Police can also require that they accompany them to a police station or other relevant place for the purpose of providing that sample and to remain there to allow the sample to be obtained.

s.66A When Can the Police Require a Person to Undergo a Driver Assessment?

Police can require a person to undergo a driver assessment to seek to establish if a person is impaired by something other than alcohol alone.  They can make this requirement if:

  • A person is driving or in charge of a motor vehicle or a police officer has reasonable grounds to believe a person was driving or in charge of a motor vehicle; and
  • A police officer has reasonable grounds to believe that a person is or was driving or attempting to drive whilst impaired by something other than alcohol alone to the extent that it affected their ability to drive;

or;

  • A police officer believes on reasonable grounds that the presence of a motor vehicle caused or contributed to personal injury or property damage; and
    • Does not know who was driving or in charge of the motor vehicle at the time, but believes on reasonable grounds that the person may have been driving or in charge; and
    • Believes on reasonable grounds that person was – when driving or in charge – impaired by something other than alcohol alone.

In order to facilitate the assessment, police can require the person to wait at the place where the requirement was made; and to leave the vehicle for the purpose of the assessment.

The police cannot conduct a driver assessment where;

  • More than four hours have passed since the person was driving or managing the vehicle in the circumstances which gave rise to the requirement; or
  • The person is incapable of undergoing the assessment because of their physical condition.

In conducting the driver assessment the police must comply with the correct procedure.  This procedure is contained in r.4 of the Road Traffic (Drug Driving) Regulations 2007 (WA).  This regulation stipulates that the police must base the assessment on observations of aspects of the driver’s;

  • behaviour; and
  • demeanour; and
  • condition.

These observations can include the following factors;

  • Any injury to the driver;
  • Any unusual or indicative skin responses;
  • Any smell of alcohol;
  • The driver’s;
    • speech;
    • action;
    • movement;
    • balance;

appears affected.

  • The driver’s eyes indicate drug ingestion;
  • The driver’s breathing appears affected by drugs;
  • The driver’s general attitude or the appearance of their clothing indicates drug ingestion; or
  • The driver’s general comprehension appears affected by drugs.

Offences Involving Drug Driving

s.63 Driving Under the Influence of Drugs

Refer to the information regarding “Driving Under the Influence of Alcohol and/ or Drugs” above.

s.64AB Driving While Impaired by Drugs

It is an offence to drive or attempt to drive a motor vehicle whilst impaired by drugs.  This is similar to the offence of driving whilst under the influence of drugs; however, the level of impairment is less substantial.  In order to be guilty of this offence, the police need to prove that:

  • One or more drugs were present in a person’s body at the time of driving or attempting to drive; and
  • Their conduct, condition or appearance – whilst driving/ attempting to drive or during the assessment – was consistent with the conduct, condition or appearance associated with a person who has consumed that or those drugs; and
  • The conduct or condition associated with a person who has consumed or used that drug or those drugs would be inconsistent with the person being capable of having proper control of a motor vehicle.

This is different from driving under the influence of drugs as, with this offence, police do not need to prove that the person was actually impaired to such an extent that they could not properly control a motor vehicle, only that their conduct, condition or appearance was consistent with what is considered generally to render a person incapable of having proper control of a motor vehicle.

A person may be able to defend this charge if:

  • the drugs detected were taken for therapeutic purposes, pursuant to a prescription; or
  • the drugs were administered, for therapeutic purposes, by a medical practitioner, nurse practitioner or dentist; and
  • where the drugs were received by a person in packaged form – the packaging did not contain a warning that the drug may affect their ability to drive a motor vehicle; and
  • They were not aware – and could not reasonably be expected to be aware – that the drug could affect their ability to drive a motor vehicle.

Penalties

OffenceFine $Minimum DisqualificationMinimum Period Before Application for Extraordinary Licence Can be MadeImprisonment
First900.00 – 2500.0010 months21 days or 3 months if previously convicted of exceeding 0.08 or failing to comply with requirement under s.66.Not applicable
Second2100.00 – 3500.0030 months4 months9 months (instead of a fine)
Third2100.00 – 5000.00Life4 months18 months (instead of a fine)

s.64AC Driving with Prescribed Illicit Drug in Oral Fluid or Blood

This offence is committed when someone is caught driving or attempting to drive a motor vehicle while an “illicit drug” is present in their oral fluid or blood.  This offence relates only “prescribed illicit drugs” rather than any drug in the case of some other offences.  “Prescribed illicit drugs” at present are:

  • Tetrahydrocannabinol (cannabis);
  • Methylamphetamine; and
  • 3, 4‑methylenedioxy‑n, alpha‑dimethylphenylethylamine (MDMA/ Ecstasy)

No particular level of drugs needs to be established for this offence to occur, any level is sufficient; nor do the police need to produce evidence that a person’s conduct or behaviour was affected in any way.

If a person mistakenly took a prescribed illicit drug they are still guilty of this offence if they believed the drug they took was:

  • A drug to which the Misuse of Drugs Act 1981 applies; or
  • A drug listed as a poison in schedule 4 of the Medicines and Poisons Act 2014 section 3.

Penalties

OffenceFine $Minimum DisqualificationMinimum Period Before Application for Extraordinary Licence Can be Made
First500.00 (maximum)Not applicableNot applicable
Second or subsequent500.00 – 1000.006 months21 days

If a person has previously been convicted of failing to comply with a requirement to provide an oral fluid or blood sample that conviction will be taken to be a previous conviction for the purposes of sentencing for this offence.

s.67AA Failure to Comply with Requirement to do Driver Assessment or Provide Blood or Urine Sample

This offence can be committed by failing to comply with a lawful requirement made by police:

  • To undergo a driver assessment; or
  • To allow a prescribed sample taker to take a sample of blood for analysis if it appears to police that the driver assessment indicates a person is drug impaired or police are unable to conduct a driver assessment where they might otherwise have been able to; or
  • To provide a prescribed sample taker with a sample of urine for analysis if it appears to police that the driver assessment indicates a person is drug impaired or police are unable to conduct a driver assessment where they might otherwise have been able to.

There are two possible defences to this charge:

  • A person’s failure to comply with the requirement was due to a “substantial reason”.  This does not include merely wanting to avoid providing the sample because it may be used as evidence against them.  For the Court to accept that they had a “substantial reason” for failing to comply, the reason would need to be very compelling; or
  • If a person charged with failing to comply with a requirement to provide a sample of their urine, it is a defence if they can satisfy the Court that they attempted to comply but were not able to.

Penalties

OffenceFine $Minimum DisqualificationImprisonmentMinimum Period Before Application for Extraordinary Licence Can be Made
First900.00 – 2500.0010 monthsNot applicable21 days or 3 months if previously convicted of exceeding 0.08 or failing to comply with a requirement under s.67A
Second2100.00 – 3500.0030 months9 months (instead of a fine)4 months
Subsequent2100.00 – 5000.00Life18 months (instead of a fine)4 months

s.67AB Failure to Comply with Requirement to Provide Oral Fluid Sample or Blood Sample

This offence can be committed by failing to comply with a requirement:

  • To provide a sample of oral fluid for drug testing where someone has submitted to a preliminary oral fluid test and:
    • It appears to Police that the test indicates that the person’s oral fluid contains a prescribed illicit drug or the person refuses; or
    • Fails to comply with the requirement to do a preliminary oral fluid test; or
  • To allow a prescribed sample taker to take a sample of blood for analysis where an oral fluid sample – as described above – could not be taken.

There is a possible defence to this charge if a person’s failure to comply with the requirement was due to a “substantial reason”.  This does not include merely wanting to avoid providing the sample because it may be used as evidence against them.  For the Court to accept that a person had a “substantial reason” for failing to comply, the reason would need to be very compelling.

Penalties

OffenceFine $Minimum DisqualificationMinimum Period Before Application for Extraordinary Licence Can be Made
First500.00Not applicableNot applicable
Second or subsequent500.00 – 1000.006 months21 days

s.67A Failure to Comply with Other Requirements of Police Officer

This offence can be committed by failing to comply with a lawful requirement of a police officer pursuant to the various requirements contained in ss.66-66E but does not include the offences which have been discussed above in relation to ss.67, 67AA and 67AB.

The requirements to which this section can apply include a person:

  • s.66 providing a sample of breath for preliminary test when required; or remaining at the place where the request for the preliminary test was made; or failing to leave their vehicle for the purpose of the preliminary breath test if required by police;
  • s.66A remaining at the place where the request for the driver assessment was made; or failing to leave their vehicle for the purpose of the driver assessment if required by police;
  • s.66B accompanying a police officer to a place for the purpose of providing a sample of blood or urine for analysis, or waiting at that place;
  • s.66C undergoing a preliminary oral fluid test; or remaining at the place where the request for the preliminary oral fluid test was made; or failing to leave their vehicle for the purpose of the preliminary oral fluid test if required by police;
  •  s.66D accompanying a police officer to a place for the purpose of providing an oral fluid sample; or waiting at that place;
  • s.66E accompanying a police officer to a place for the purpose of providing a sample of blood for drug analysis, or waiting at that place. 

 There is a possible defence to this charge if a person’s failure to comply with any relevant requirement was due to a “substantial reason”.  This does not include merely wanting to avoid complying with the requirement because it may be used as evidence against them.  For the Court to accept that a person had a “substantial reason” for failing to comply, the reason would need to be very compelling.

Penalties

OffenceFine $Minimum DisqualificationMinimum Period Before Application for Extraordinary Licence Can be Made
First300.00 – 800.003 months21 days
Second or subsequent600.00 – 1400.006 months21 days
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