Harbors and Navigation (Alcohol and Drug Testing) Regulations 2023 (SA)

South Australia Harbors and Navigation (Alcohol and Drug Testing) Regulations 2023 under the Harbors and Navigation Act 1993

Contents 1 Short title 3 Interpretation 4 Prescribed class of offences 5 Conduct of breath analysis 6 Oral advice on refusal or failure to comply with alcotest or breath analysis direction 7 Oral advice on refusal or failure to comply with drug screening test, oral fluid analysis or blood test direction 8 Oral advice and written notice on recording of positive breath analysis reading 9 Procedures for voluntary blood test 10 Request for approved blood test kit 11 Prescribed period for keeping blood samples and oral fluid samples 12 Information to be included on analyst's certificate Schedule 1—Prescribed oral advice and written notice 1 Oral advice on refusal or failure to comply with alcotest or breath analysis direction—section 71(9)(b) of Act 2 Oral advice on refusal or failure to comply with drug screening test, oral fluid analysis or blood test direction—section 72(11)(b) of Act 3 Oral advice on recording of positive breath analysis reading—section 73(6)(a) of Act 4 Written notice on recording of positive breath analysis reading—section 73(6)(a) of Act Schedule 2—Certificate Schedule 3—Form of request Legislative history

1—Short title These regulations may be cited as the Harbors and Navigation (Alcohol and Drug Testing) Regulations 2023. 3—Interpretation In these regulations— Act means the Harbors and Navigation Act 1993; approved courier means a person approved by the Commissioner of Police under the Road Traffic Act 1961 as a courier for the purposes of Schedule 1 of that Act. 4—Prescribed class of offences For the purposes of paragraph (a) of the definition of prescribed circumstances in section 4(1) of the Act, each of the following is an offence of a prescribed class: (a) an offence against section 69, 69A, 70 or 85 of the Act; (b) an offence against regulation 10(1), 115, 116, 119, 121, 124, 125, 126 or 143 of the Harbors and Navigation Regulations 2023; (c) an offence against— (i) section 84 of the Act; or (ii) regulation 113(2) or 114(2) of the Harbors and Navigation Regulations 2023, committed by a master or an operator of a vessel. 5—Conduct of breath analysis (1) Pursuant to section 71(7) of the Act, if a person submits to a breath analysis, the breath analysis must be conducted in the following manner: (a) the person must provide 2 separate samples of breath for analysis; (b) each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than 1 litre of breath; (c) there must be an interval of not less than 2 minutes and not more than 10 minutes between the provision of the samples. (2) Despite subregulation (1)— (a) if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the person may be required to provide 2 further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (b) if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the person may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (c) if, on analysing 2 samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample— (i) those samples must be disregarded; and (ii) the person may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (d) if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample— (i) the first sample is to be disregarded; and (ii) the person may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)). (3) If a person submits to a breath analysis, the result of the breath analysis will, for the purposes of Part 10 Division 4 of the Act and for the purposes of any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded). 6—Oral advice on refusal or failure to comply with alcotest or breath analysis direction For the purposes of section 71(9)(b) of the Act, the prescribed oral advice is set out in Schedule 1 clause 1. 7—Oral advice on refusal or failure to comply with drug screening test, oral fluid analysis or blood test direction For the purposes of section 72(11)(b) of the Act, the prescribed oral advice is set out in Schedule 1 clause 2. 8—Oral advice and written notice on recording of positive breath analysis reading (1) For the purposes of section 73(6)(a) of the Act, the prescribed oral advice is set out in Schedule 1 clause 3. (2) For the purposes of section 73(6)(a) of the Act, the prescribed written notice is set out in Schedule 1 clause 4. 9—Procedures for voluntary blood test For the purposes of section 73(2)(a) of the Act, a sample of a person's blood must be taken and dealt with as follows: (a) the person must cause the sample to be taken by a medical practitioner or registered nurse of the person's choice and must deliver the blood test kit supplied to the person under section 73(6)(b) of the Act to the medical practitioner or registered nurse for use for that purpose; (b) the medical practitioner or registered nurse by whom the sample of the person's blood is taken must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit); (c) each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner or registered nurse must be such as to furnish 2 such quantities of blood; (d) the medical practitioner or registered nurse must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit; (e) it is the duty of the medical practitioner or registered nurse to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken; (f) the medical practitioner or registered nurse must then complete a certificate that includes the information set out in Schedule 2; (g) the certificate must be signed by the medical practitioner or registered nurse certifying as to the matters set out in the form; (h) the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner or registered nurse; (i) the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with 1 of the sealed containers containing part of the blood sample; (j) a copy of the signed certificate must be delivered by the medical practitioner or registered nurse together with the other sealed container containing part of the blood sample to a police officer or an approved courier; (k) a police officer to whom a copy of the signed certificate and the other sealed container is delivered under paragraph (j) must deliver the copy and container to Forensic Science SA or to an approved courier; (l) an approved courier to whom a copy of the signed certificate and the other sealed container is delivered under this regulation must deliver the copy and container to Forensic Science SA; (m) the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken; (n) on receipt of the blood sample container and certificate at Forensic Science SA, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100ml of blood; (o) the analyst must then complete and sign a certificate certifying as to the following matters: (i) the date of receipt at Forensic Science SA of the blood sample container and the certificate accompanying the blood sample container; (ii) the identifying number appearing on the adhesive seal used to seal the blood sample container; (iii) the name and professional qualifications of the analyst; (iv) the concentration of alcohol found to be present in the blood expressed in grams in 100ml of blood; (v) any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; (vi) any other information relating to the blood sample or analysis or both that the analyst thinks fit to include; (p) the analyst's certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person's address on the certificate accompanying the blood sample container; (q) a copy of the analyst's certificate must be sent to or retained on behalf of the Minister; (r) a copy of the analyst's certificate must also be sent to the Commissioner of Police; (s) the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood. 10—Request for approved blood test kit (1) For the purposes of section 73(6)(b) of the Act, a request for an approved blood test kit must be made in accordance with the following: (a) the request must be made either orally or in writing to the person operating the breath analysing instrument (the operator); (b) on such a request having been made by the person, the operator or any other authorised person present at the scene must complete a written request form in the form set out in Schedule 3 by inserting the particulars required by the form; (c) the person making the request must then sign the request form in the presence of the operator or other authorised person and the person's signature must be attested to by the signature of the operator or other authorised person; (d) the original of the signed request form may be retained by the person making the request; (e) a copy of the signed request form must be delivered to the operator or other authorised person. (2) The copy of the request form delivered to the operator or other authorised person must be delivered to the Minister or retained on the Minister's behalf for 12 months from the day on which the request form was signed by the person making the request. 11—Prescribed period for keeping blood samples and oral fluid samples For the purposes of clauses 2(e)(ii) and 7(e)(ii) of Schedule 1A of the Act, the period prescribed for which a container containing a sample of a person's blood or oral fluid (as the case may be) must be kept available for collection by or on behalf of that person is 12 months from the day on which the sample was taken from the person. 12—Information to be included on analyst's certificate For the purposes of clause 7(f)(iv) of Schedule 1A of the Act, the required information in relation to any prescribed drug found to be present in the sample is information identifying the drug or drugs.