Last updated 20 January 2017 This chapter is currently under review.
Section 80 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act) provides detailed procedures for the investigation of suspected alcohol or drug driving offences and the evidentiary value of results of various breath, saliva and blood analysis tests.
Roadside breath and saliva tests
Under s 80 of the TORUM Act, a police officer may only request a roadside breath or saliva test if the officer suspects on reasonable grounds that a person:
- has driven or been in charge of a vehicle within the last three hours
- was driving a vehicle not more than three hours ago which was involved in an accident resulting in injury, death or damage to property.
The police officer may do the test on the roadside or may require the person to come to a police station or other place where a device for the test is located.
It is an offence to refuse to provide a specimen of breath for a breath test or a specimen of saliva for a saliva test in the manner directed. The only defences to such a charge are if the person:
- immediately produces a medical certificate to the police officer which certifies that they are incapable of providing the breath specimen or that to do so would be detrimental to their health
- can satisfy the court that:
- they were incapable of providing the specimen
- the request by the police officer was not lawfully made
- there was some other substantial reason preventing them from doing so.
While these defences provide bases for refusing to provide a breath specimen, there is little utility in doing so. Failing to comply with a request for a breath or saliva test provides the police officer with the power to require a compulsory breath, saliva or blood analysis test, and use such force as is necessary to detain or transport the person elsewhere for that purpose. Also, a conviction for failing to provide a roadside breath or saliva test has a maximum penalty of $4400 or six months imprisonment (s 80(5A) TORUM Act). This penalty is higher than that provided for the minor drink driving offences.
A roadside breath or saliva test is intended to be only an approximate test, and a positive reading provides the basis for a reasonable suspicion to be formed by police that the person has committed an offence, which permits police to detain or transport the person for the purpose of a further breath and saliva analysis test or blood test, either at the scene or at another location. A police officer may also detain or transport a person and require further testing by breath analysis, saliva analysis or blood tests if the person has produced a certificate of medical incapacity to produce a roadside breath test when the officer reasonably suspects the person is, because of external appearances, affected by liquor or a drug (s 80(6)(ba) TORUM Act).
Breath, saliva and blood analysis tests
Pursuant to s 80 of the TORUM Act, any person detained for suspected offences as described above, arrested for careless driving or any indictable offence arising out of driving a motor vehicle or in hospital for treatment after an accident can be required by a police officer to provide a specimen of breath for analysis on a breathalyser, a specimen of saliva for saliva analysis or a blood sample. If the person is in hospital for treatment, the police officer must have a suspicion that the person has driven or been involved in an accident while driving within the last three hours for a breath, saliva or blood specimen.
The choice of whether the test should be a breath, saliva or blood analysis rests with the police officer. A person cannot insist on a blood test unless a breath sample cannot be given on medical grounds. In practice, police officers will require a breath analysis where a breathalyser is available, and the person can then certify that they are unable to give a breath sample. A blood sample may also be obtained if a breathalyser reading is not believed to be accurate. A blood sample can be taken without consent if the person is unconscious or unable to communicate.
A request to provide a specimen of breath, saliva or blood for analysis may be made by any police officer, but the operator of the breathalyser or saliva analysing instrument must be a separate person who is an authorised member of the police force. Blood tests are taken by health care professionals.
Once the request has been made, the person is obliged to perform the breath test (by blowing through the mouthpiece into the breathalyser until told to stop by the operator), saliva test (by wiping a swab inside the mouth) or allow a health care professional to take the blood specimen as necessary.
Failure to provide a specimen in the prescribed manner is an offence, which results in the person being deemed to have committed the offence of driving under the influence attracting the higher penalties under that offence (s 80(11) TORUM Act). This is especially harsh with saliva tests, since a positive result means the person is only liable to the same penalties as an offence of driving over the general alcohol limit, whereas a failure to provide the specimen deems the person guilty of the more serious offence of driving under the influence.
Defences to failing to provide a blood, saliva or breath specimen for analysis are that the court is satisfied that (s 80(11A) TORUM Act):
- the request was unlawful
- the person was incapable of providing the specimen
- there was some other reason of a substantial character for not providing the specimen (other than desiring to avoid providing information that might be used as evidence).
Once the analysis is completed, the operator is required to fill out in duplicate a certificate stating the result of the analysis and various other particulars. One copy is given to the officer who made the request and the other to the driver. If the driver fails to provide a specimen of breath or saliva, a certificate stating this will be completed by the operator (ss 80(15), 80(15AB), 80(15B) TORUM Act). With saliva, another part of the specimen that was analysed must also be sent to a laboratory for confirmation of the presence of a relevant drug. A certificate will also be issued by an analyst from the laboratory that tested a saliva, blood or urine specimen.