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Drink Driving Blood Samples : Can I refuse?

This brief articles examines drink driving blood samples and whether an individual has the right to refuse a blood sample.  In essence, the answer is no.  The Road Transport Act 2013 allows a police office to order a person provide a blood sample, whether the person consents or not.

When Can The Police Take a Sample?

A blood sample can be legally taken in several situations, including:

  • When a person is unable to physically submit to a breath test or oral fluid test
  • When an individual refuses to undergo a breath test or oral fluid test, or fails to complete it correctly
  • Following the completion of an oral fluid test that indicates the presence of one or more illicit drugs in the person’s system
  • In cases where an individual refuses to submit to a sobriety test or when a sobriety test suggests potential impairment due to drug influence

The process for taking a blood sample involves specific steps. The sample taker must place the sample in a container, secure and seal the container, mark or label it appropriately, and provide the person from whom the sample is taken with a certificate containing sufficient information to identify the sample as their blood. Subsequently, the sample taker must arrange for the sample to be sent to a laboratory for analysis. The laboratory analysis aims to determine the concentration of alcohol in the blood or identify the presence of prescribed illicit drugs or other substances.

Traffic Accidents

In the context of a person being treated at a hospital for injuries sustained in a traffic incident, a medical practitioner is duty bound to take a blood sample as soon as practicable. This action can be carried out with or without the patient’s consent. In instances where a medical practitioner is unavailable, a registered nurse is authorised to take the sample.

The obligation to take a blood sample applies to accident patients over the age of 15, including individuals such as:

  • Drivers of motor vehicles
  • Drivers or riders of other vehicles
  • Pedestrians
  • Horse riders
  • Driver’s license holders supervising a learner driver involved in an accident

Additionally, a police officer has the authority to arrest someone involved in an accident for the purpose of blood testing, particularly 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.

In such cases, the police officer is empowered to arrest the individual and use the necessary force to transport them to a hospital or another designated location, facilitating the provision of a blood sample.

Can I Refuse A Blood Sample?

Under the Act, individuals are compelled to comply with the directions of a police officer or authorised sample taker to furnish a blood sample. For a first offence, the maximum penalty is a fine of $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 $3,300.00 or imprisonment for 18 months or both, and for a second or subsequent offence, the maximum penalty is $5,500.0 or imprisonment for 2 years or both.

Obstructing or hindering a police officer in extracting a, for instance, drink driving blood sample carries a maximum penalty of a $2,200.00 fine. Similarly, an authorised sample taker must not refuse or fail to take a blood sample when required. The maximum penalty for this is a fine of $2,200.00. There are several defences for this, including:

  • Taking the sample would be prejudicial to the care and treatment of the person.
  • They could not take the sample because of the persons behaviour.
  • They believed the person was under the age of 15.

The criminal lawyers  at Brander Smith McKnight are able to answer your questions in relation to your rights and obligations in relation to this issue.  Our criminal lawyers are experienced in all aspects of traffic law.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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