Land Transport (Drug Driving) Amendment Act 2022

1: Title
This Act is the Land Transport (Drug Driving) Amendment Act 2022.
2: Commencement
This Act comes into force immediately after the expiry of the 12-month period that starts on the date of Royal assent.
1: Amendments to Land Transport Act 1998
3: Amendments to Land Transport Act 1998
This Part amends the Land Transport Act 1998 2023-03-11 Land Transport Act 1998
4: Section 2 amended (Interpretation)
1: In section 2(1) blood concentration level evidence of use of a qualifying drug section 11A(2) first oral fluid test section 71A high-risk level Part 1 of Schedule 5 listed qualifying drug Schedule 5 oral fluid test
a: by means of an oral fluid testing device; and
b: in a manner approved for that device by the Minister of Police under section 71G oral fluid testing device section 71G second oral fluid test section 71B tolerance level Part 2 of Schedule 5 unlisted qualifying drug Schedule 5
2: In section 2(1) compulsory impairment test determine indicate
3: In section 2(1) positive positive
a: in relation to the result of an evidential breath test, means the result of the test indicates,—
i: in the case of a person who holds an alcohol interlock licence or a zero alcohol licence, that the breath of the person who underwent the test contains alcohol; or
ii: in the case of a person who is apparently younger than 20, that the breath of the person who underwent the test contains alcohol; or
iii: in the case of any other person, that the proportion of alcohol in the breath of the person who underwent the test exceeds 250 micrograms of alcohol per litre of breath:
b: in relation to the result of an oral fluid test, means the result of the test indicates that the concentration level of a qualifying drug in the oral fluid of the person who underwent the test equals or exceeds the level specified for the drug in a notice made under section 71G
4: In section 2(1) qualifying drug
a: means any substance, preparation, mixture, or article containing a controlled drug specified in Schedule 1 or 2 of the Misuse of Drugs Act 1975 or any of Parts 1 to 5 and Part 7 of Schedule 3 of the Misuse of Drugs Act 1975; and Amendments to primary responsibilities concerning use of drugs
5: Section 11A replaced (Persons may not drive or attempt to drive while impaired and their blood contains evidence of use of qualifying drug)
Replace section 11A
11A: Persons not to drive or attempt to drive while blood contains evidence of, or oral fluid indicates, use of qualifying drug
1: A person may not drive or attempt to drive a motor vehicle while—
a: the person’s blood contains evidence of use of a qualifying drug ( see sections 57A(1) and (2), 57B(1) and (2), and 57C(1) and (2)
b: the person’s oral fluid indicates use of a qualifying drug ( see sections 57A(3), 57B(3), and 57C(3) and (4)
2: A person’s blood contains evidence of use of a qualifying drug
a: the blood concentration level of a listed qualifying drug exceeds the tolerance level for the drug; or
b: the blood contains any level of an unlisted qualifying drug.
3: For the purposes of subsection (1)﻿(b) indicates use of a qualifying drug
6: Section 13 amended (Drivers and other road users to comply with directions of enforcement officers, etc)
Replace section 13(1) and (2)
1: A person must comply with sections 68, 69, 70, 71A, 71B, 71C, 71E, 71F
2: A person must comply with all lawful requirements, directions, and requests made by an enforcement officer under any of sections 68, 69, 70, 71A, 71B, 71C, 71E, 71F Drug-related offences and penalties
7: Part 5 heading amended
In the Part 5 alcohol-related alcohol- and drug-related
8: Cross-heading above section 34 amended
In the cross-heading above section 34 alcohol or drugs
9: Section 56 amended (Contravention of specified breath or blood-alcohol limit)
In section 56(4) subsection (1) or subsection (2), or any of sections 57A(1) subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1)
10: Section 57A replaced (Driving while impaired and with blood that contains evidence of use of qualifying drug)
Replace section 57A
57A: Driving with blood that contains evidence of, or oral fluid that indicates, use of 1 qualifying drug
Offence: driving while blood contains evidence of use of 1 qualifying drug
1: A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or
b: contains evidence of use of an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F Infringement offence: driving while blood contains evidence of use of 1 qualifying drug
2: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: contains evidence of use of 1 listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; or
b: contains evidence of use of 1 unlisted qualifying drug and the person was not required to undergo a compulsory impairment test under section 71F Infringement offence: driving while oral fluid indicates use of qualifying drug
3: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—
a: the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and
b: the person does not elect to have a blood test in accordance with section 71D
57B: Driving while blood contains evidence of, or oral fluid indicates, use of 2 or more qualifying drugs
Offence: driving while blood contains evidence of use of 2 or more qualifying drugs
1: A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: 1 or more of the drugs are listed qualifying drugs and the blood concentration level for 1 or more listed qualifying drugs exceeds the applicable high-risk level:
b: 1 or more of the drugs are unlisted qualifying drugs and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F Infringement offence: driving while blood contains evidence of use of 2 or more qualifying drugs
2: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: contains evidence of use of 2 or more listed qualifying drugs and the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; or
b: contains evidence of use of 2 or more unlisted qualifying drugs and the person was not required to undergo a compulsory impairment test under section 71F
c: contains evidence of use of 1 or more listed qualifying drugs and 1 or more unlisted qualifying drugs and—
i: the blood concentration level of each listed qualifying drug equals or is less than the high-risk level for the drug; and
ii: the person was not required to undergo a compulsory impairment test under section 71F Infringement offence: driving while oral fluid indicates use of 2 or more qualifying drugs
3: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—
a: the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of 2 or more of the same qualifying drugs; and
b: the person does not elect to have a blood test in accordance with section 71D
57C: Driving while blood or breath contains alcohol and blood contains evidence of, or oral fluid indicates, use of 1 qualifying drug
Offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug
1: A person who drives or attempts to drive a motor vehicle on a road commits an offence if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: the proportion of alcohol in the person’s blood—
i: exceeds 80 milligrams of alcohol per 100 millilitres of blood; or
ii: if the person is younger than 20, exceeds 30 milligrams of alcohol per 100 millilitres of blood; or
iii: if the person holds an alcohol interlock licence or a zero alcohol licence, equals or is less than 50 milligrams of alcohol per 100 millilitres of blood:
b: the drug is a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug:
c: the drug is an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F Infringement offence: driving while blood contains alcohol and evidence of use of 1 qualifying drug
2: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: contains alcohol and the proportion of alcohol in the person’s blood equals or is less than—
i: 80 milligrams of alcohol per 100 millilitres of blood; or
ii: if the person is younger than 20, 30 milligrams of alcohol per 100 millilitres of blood; and
b: contains evidence of use of a qualifying drug and,—
i: if the drug is a listed qualifying drug, the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug; and
ii: if the drug is an unlisted qualifying drug, the person was not required to undergo a compulsory impairment test under section 71F Infringement offence: driving while blood contains alcohol and oral fluid indicates use of 1 qualifying drug
3: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if,—
a: as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
i: 80 milligrams of alcohol per 100 millilitres of blood; or
ii: if the person is younger than 20, 30 milligrams of alcohol per 100 millilitres of blood; and
b: the results of a first oral fluid test and the second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and
c: the person does not elect to have a blood test in accordance with section 71D Infringement offence: driving while breath contains alcohol and oral fluid indicates use of 1 qualifying drug
4: A person who drives or attempts to drive a motor vehicle on a road commits an infringement offence if—
a: the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, equals or is less than—
i: 400 micrograms of alcohol per litre of breath; or
ii: if the person is younger than 20, 150 micrograms of alcohol per litre of breath; and
b: the results of a first oral fluid test and second oral fluid test subsequently undergone by the person are positive and indicate the use of the same qualifying drug; and
c: the person does not elect to have a blood test in accordance with section 71D
5: Subsections (2), (3), and (4) see
57D: Penalties for offences against sections 57A(1), 57B(1), and 57C(1)
1: If a person is convicted of a first or second offence against section 57A(1)
a: the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
b: the court must order the person to be disqualified for 6 months or more from holding or obtaining a driver licence.
2: If a person is convicted of a first or second offence against section 57B(1) or 57C(1)
a: the maximum penalty is imprisonment for a term not exceeding 6 months or a fine not exceeding $4,500; and
b: the court must order the person to be disqualified for 9 months or more from holding or obtaining a driver licence.
3: If a person is convicted of a third or subsequent offence against any of sections 56(1), 56(2), 57A(1), 57B(1), 57C(1), 58(1), 60(1) 61(1)
a: the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
b: the court must order the person to be disqualified for more than 1 year from holding or obtaining a driver licence.
4: If an offence against section 57A(1) or 57B(1) subsection (1)﻿(b), (2)﻿(b), or (3)﻿(b)
5: Subsection (3)﻿(b) section 65
6: For the purposes of this section, a conviction against a provision of the Transport Act 1962 corresponding to an offence specified in subsection (3)
7: The imposition of a mandatory disqualification under this section is subject to section 81
11: Section 58 amended (Contravention of section 12)
1: Replace section 58(1) and (1A)
1: A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle.
2: In section 58(3) 57A(1) 57A(1), 57B(1), 57C(1)
12: Section 59 amended (Failure or refusal to remain at specified place or to accompany enforcement officer)
1: In section 59(1)﻿(b) and (c) 71A 71A, 71B, 71E, 71F
2: In section 59(1)﻿(c)﻿(i) breath test or a blood test or breath test, an oral fluid test, a blood test, or
3: Replace section 59(1)﻿(d)
d: having undergone an evidential breath test under a requirement under section 69, an oral fluid test under a requirement under any of sections 71A to 71C section 71F
13: Section 60 amended (Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test)
1: In section 60(1)﻿(d) section 71A section 71F
2: In section 60(3) 57A(1), 57A(1), 57B(1), 57C(1)
14: Section 61 amended (Person in charge of motor vehicle causing injury or death)
1: Replace section 61(2)﻿(b) and (c)
b: if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person in charge—
i: contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or
ii: contains evidence of use of an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F
2: In section 61(2A) or (2)﻿(c)
3: In section 61(3A) section 56(1) or (2), or section 57A(1), or section 58(1), or section 60(1) any of sections 56(1), 56(2), 57A(1), 57B(1), 57C(1), 58(1) and 60(1)
15: Section 62 amended (Causing injury or death in circumstances to which section 61 does not apply)
1: Replace section 62(1)﻿(b)
b: if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person driving contains evidence of use of a listed qualifying drug and the blood concentration level of the drug equals or is less than the high-risk level (if any) for the drug.
2: Replace section 62(1B)
1B: A person commits an offence if the person causes bodily injury to, or the death of, a person by driving or attempting to drive a vehicle if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 73
a: contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; or
b: contains evidence of use of an unlisted qualifying drug and the blood specimen was taken after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F
16: Section 64 amended (Defences)
1: In section 64(1A) section 57A(1) section 57A(1) or (2) 57B(1) or (2), 57C(1) or (2)
2: After section 64(1A)
1AB: It is a defence to proceedings for an offence against section 57A(3), 57B(3), or 57C(3) or (4)
a: the person—
i: has a current and valid prescription for the qualifying drug that was written for that person by a health practitioner; and
ii: has complied with the instructions (if any) from a health practitioner or from the manufacturer of the qualifying drug about driving, consuming alcohol or other prescription medicines, or both, while consuming the qualifying drug; or
b: the drug was administered by a health practitioner, and the person complied with the instructions (if any) given by the health practitioner.
3: In section 64(2) and 77 77, and 77A
4: In section 64(3A)﻿(a) or evidential breath test , evidential breath test, or oral fluid test
5: After section 64(5)
6: It is no defence to proceedings for an offence against this Act in respect of the proportion of a qualifying drug in a person’s blood—
a: that there was or may have been an error in the result of the first oral fluid test or second oral fluid test; or
b: that the occurrence or likely occurrence of any such error did not entitle or empower a person to request or require a second oral fluid test or a blood test.
17: Section 65AB amended (Qualifying offences)
In section 65AB(1) 57AA, 57C(1) Blood test fee
18: Section 67 amended (Blood test fee)
1: In section 67(1)﻿(a)﻿(i) 72(1) 72(1)﻿(a), (b), (c), or (d)
2: After section 67(1)﻿(a)
aa: any person who—
i: elects or is required to undergo a blood test under section 71D or 72(1)﻿(e), (f), (g), or (h)
ii: is advised in accordance with section 71A(5)﻿(c), 71D(2), or 72(1F)
iii: commits an offence against section 57A(1) or (2), 57B(1) or (2), or 57C(1) or (2)
3: In section 67(1B)﻿(a) 57A 57A(1), 57B(1), 57C(1)
4: In section 67(2) Act (including prescribing different fees for different classes of persons) Enforcement procedures
19: Section 68 amended (Who must undergo breath screening test)
After section 68(5)
6: An enforcement officer may require a person to undergo a breath screening test whether or not a person has already undergone an oral fluid test under any of sections 71A to 71C
20: Section 70A amended (Right to elect blood test)
Replace the heading to section 70A Who has right to elect blood test after positive evidential breath test
21: Section 71A replaced (Requirement to undergo compulsory impairment test)
Replace section 71A Enforcement procedures for offences involving use of qualifying drugs
71A: Who must undergo first oral fluid test
1: An enforcement officer may require any of the following persons to undergo a first oral fluid test without delay:
a: a driver of, or a person attempting to drive, a motor vehicle on a road:
b: a person who the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
c: if an accident has occurred involving a motor vehicle,—
i: the driver of the vehicle at the time of the accident; or
ii: if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person who the officer has good cause to suspect was in the motor vehicle at the time of the accident.
2: An enforcement officer—
a: may require a person to undergo a first oral fluid test whether or not the person has already undergone a breath screening test under section 68 or an evidential breath test under section 69 and regardless of the result (or failure to produce a result) of any such oral fluid test or tests; but
b: must not require a person to undergo a first oral fluid test if an enforcement officer has required the person to undergo a compulsory impairment test under section 71F(1)
3: An enforcement officer may require the person—
a: to remain in the place where stopped to undergo the first oral fluid test; or
b: if it is not practicable for the person to undergo an oral fluid test at the place where stopped, to accompany an enforcement officer to a place where it is likely that the person can undergo a first oral fluid test.
4: If it is not practicable for a person to undergo a first oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (3)﻿(b)
5: An enforcement officer who requires a person to undergo a first oral fluid test under this section must, without delay, advise the person that,—
a: if the person refuses to undergo a first oral fluid test under this section or a second oral fluid test under section 71B section 72(1)﻿(e)
b: if the result of a blood test indicates the presence of alcohol, 1 or more qualifying drugs, or both alcohol and 1 or more qualifying drugs, the person may be issued with an infringement notice or charged with an offence, depending on—
i: the proportion of any alcohol in the person’s blood; and
ii: the blood concentration level and type of the qualifying drugs (if any) in the person’s blood; and
c: the person may be liable to pay a blood test fee and associated medical costs if the result of the blood test establishes that the person has committed an offence against section 57A(1), 57B(1), or 57C(1) section 57A(2), 57B(2), or 57C(2)
6: A person must—
a: accompany an enforcement officer to a place when required to do so under this section:
b: if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to undergo an oral fluid test under this section:
c: if the person has undergone an oral fluid test under this section, remain at the place where the person underwent the test until after the result of the test is ascertained.
7: An enforcement officer may arrest without warrant a person who contravenes subsection (6)
8: An enforcement officer may require a person who has been arrested under subsection (7)
9: An enforcement officer may not require a person who is in a hospital or medical centre as a result of an accident involving a motor vehicle to undergo an oral fluid test under this section.
71B: Who must undergo second oral fluid test
1: An enforcement officer must require a person to undergo a second oral fluid test without delay if the person has undergone a first oral fluid test and the result of the first oral fluid test is positive unless the person is instead required to undergo a compulsory impairment test in the circumstances described in section 71F(5)
2: An enforcement officer may require the person—
a: to remain in the place where the person underwent the first oral fluid test to undergo the second oral fluid test; or
b: if it is not practicable for the person to undergo a second oral fluid test at the place where the person underwent the first oral fluid test, to accompany an enforcement officer to a place where it is likely that the person can undergo a second oral fluid test.
3: If it is not practicable for a person to undergo a second oral fluid test at a place to which the person has accompanied an enforcement officer under subsection (2)﻿(b)
4: A person must—
a: accompany an enforcement officer to a place when required to do so under this section:
b: if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to undergo an oral fluid test under this section:
c: if the person has undergone an oral fluid test under this section, remain at the place where the person underwent the test until after the result of the test is ascertained.
5: An enforcement officer may arrest without warrant a person who contravenes subsection (4)
6: An enforcement officer may require a person who has been arrested under subsection (5)
71C: Person must undergo further oral fluid test if either first or second oral fluid test fails to produce result
1: An enforcement officer must require a person to undergo without delay a further oral fluid test if—
a: a first oral fluid test carried out under section 71A
b: a second oral fluid test carried out under section 71B
2: A person must remain at the place where the person underwent the test that failed to produce a result until after the result of the further oral fluid test is ascertained.
3: An enforcement officer may arrest without warrant a person who contravenes subsection (2)
4: An enforcement officer may require a person who has been arrested under subsection (3)
5: A positive result of a further oral fluid test required under subsection (1)
a: if required following a first oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the first oral fluid test; or
b: if required following a second oral fluid test that failed to produce a result, be treated for all purposes under this Act as the result of the second oral fluid test.
6: A person may be required to undergo only 1 further oral fluid test under subsection (1)
71D: Person has right to elect blood test after 2 positive oral fluid tests
1: A person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77A(3)﻿(a)
a: the person has undergone a first oral fluid test and a second oral fluid test that have produced positive results; and
b: the results of both tests indicate the use of 1 or more of the same qualifying drugs.
2: An enforcement officer who advises a person of the matters specified in section 77A(3)﻿(a) section 57A(1), 57B(1), or 57C(1) section 57A(2), 57B(2), or 57C(2)
71E: Person may be required to accompany enforcement officer to undergo blood test
1: An enforcement officer may require the following persons to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential blood test when required to do so by the officer:
a: a person who fails or refuses to undergo an oral fluid test without delay after having been required to do so by the officer under any of sections 71A to 71C
b: a person who has undergone a first oral fluid test and a second oral fluid test that have produced positive results if—
i: the person was the driver of a motor vehicle at the time an accident occurred involving the motor vehicle or an enforcement officer has good cause to suspect that the person was in the motor vehicle at the time of the accident; and
ii: the enforcement officer has good cause to suspect that another person has been injured or killed as a result of the accident:
c: a person who has elected to have a blood test under section 71D
d: a person who fails to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person is required to do so by an enforcement officer under section 71F
2: If it is not practicable for a person to undergo a blood test at a place to which the person has accompanied an enforcement officer under subsection (1)
3: The person must—
a: accompany the enforcement officer to a place when required to do so under this section:
b: if the person has accompanied an enforcement officer to a place under this section, remain at that place until the person is required to provide a blood specimen for collection under section 72 or 73.
4: An enforcement officer may arrest without warrant a person who contravenes subsection (3)
71F: Who must undergo compulsory impairment test
1: An enforcement officer may require any of the following persons to undergo a compulsory impairment test given by an enforcement officer trained to give the test if the enforcement officer has good cause to suspect that the person has consumed a drug or drugs:
a: a driver of, or a person attempting to drive, a motor vehicle on a road:
b: a person who the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle:
c: if an accident has occurred involving a motor vehicle,—
i: the driver of the vehicle at the time of the accident; or
ii: if the enforcement officer is unable to ascertain who the driver of the motor vehicle was at the time of the accident, a person who the officer has good cause to suspect was in the motor vehicle at the time of the accident.
2: An enforcement officer may require a person specified in subsection (1)
a: remain in the place where stopped, for a period of time that is reasonable in the circumstances, to undergo the compulsory impairment test; or
b: accompany an enforcement officer to another place to undergo the compulsory impairment test if it would enhance road safety, personal safety, the person's privacy, or the giving or taking of the test.
3: A person who has undergone a compulsory impairment test must remain at the place where the person underwent the test until the result of the test is ascertained.
4: An enforcement officer may arrest a person without warrant if the person refuses or fails to comply with subsection (2) or (3)
5: An enforcement officer may exercise the powers in subsections (1) and (2)
a: any breath screening test, regardless of the result of the test (or a failure of the test to produce a result):
b: any evidential breath test, regardless of the result of the test (or a failure of the test to produce a result):
c: a first oral fluid test that—
i: does not produce a positive result; or
ii: produces a positive result that indicates the use of more than 1 qualifying drug:
d: a second oral fluid test that does not produce a positive result.
6: An enforcement officer must not exercise the powers in subsection (1) and (2)
a: a first oral fluid test that produces a positive result that indicates the use of only 1 qualifying drug:
b: a second oral fluid test that produces a positive result.
71G: Approval of oral fluid tests and oral fluid testing devices
1: The Minister of Police may, by notice, approve—
a: a kind of device that may be used as an oral fluid testing device for the purposes of testing oral fluid for the presence of 1 or more specified qualifying drugs:
b: the manner in which an oral fluid test may be carried out by means of an oral fluid testing device.
2: Before giving a notice under subsection (1)
a: consult the Minister of Transport and the Science Minister; and
b: have regard to the accuracy of the device; and
c: be satisfied that any device proposed to be approved under subsection (1)﻿(a) subsection (1)﻿(b)
3: In determining for the purposes of subsection (2)﻿(c)
4: A notice made under subsection (1)
a: must specify, for each specified qualifying drug, the concentration level of the qualifying drug in the person’s oral fluid at or above which the result of the test will appear positive for that qualifying drug; and
b: may—
i: define an approved device as a device that bears or is associated by its manufacturer with such trade name or number or other expression, or any combination of those things, as may be specified in the notice:
ii: provide for a test, or part of a test, to be carried out in accordance with instructions displayed or printed on or by a specified kind of device.
5: In the absence of proof to the contrary, a device is to be treated as bearing or being associated with a particular trade name or number or other expression if that name or number or other expression—
a: appears on the device, whether on a label or otherwise, or is shown on a display panel on the device; or
b: is printed out by the device on a card or on paper; or
c: appears on printed matter that—
i: accompanies the device; and
ii: is associated with the device or is intended by the manufacturer of the device to be associated with the device; and
iii: is issued by or on behalf of the manufacturer.
6: In this section, specified qualifying drug subsection (1)
7: A notice made under this section is secondary legislation ( see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Enforcement procedures involving taking of blood specimens
22: Section 72 amended (Who must give blood specimen at places other than hospital or medical centre)
1: Replace section 72(1)﻿(e)
e: the person fails or refuses to undergo without delay an oral fluid test after having been required to do so by an enforcement officer under any of sections 71A to 71C
f: the person has undergone a second oral fluid test under section 71B
i: it appears to the officer that the test is positive; and
ii: within 10 minutes of being advised by an enforcement officer of the matters specified in section 77A(3)﻿(a)
g: the person has undergone 2 oral fluid tests under any of sections 71A to 71C section 71E(1)﻿(b) or (2)
h: the person fails to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person is required to do so by an enforcement officer under section 71F
2: In section 72(1A) and (1B) Subsection (1)﻿(e) Subsection (1)﻿(h)
3: In section 72(1B) and (1C) section 68 section 68 sections 71A to 71C
4: In section 72(1E) (c), (d), or (e) (c) or (d)
5: After section 72(1E)
1F: An enforcement officer who requires a person to permit the taking of a blood specimen under subsection (1)﻿(e), (f), (g), or (h) section 57A(1), 57B(1), or 57C(1) section 57A(2), 57B(2), or 57C(2) Evidential provisions
23: Section 73A replaced (Evidence of controlled drug in blood sample taken under section 72 or 73 may not be used as evidence of use of controlled drugs in prosecutions under Misuse of Drugs Act 1975)
Replace section 73A
73A: Purposes for which blood specimen taken under section 72 or 73 may be used as evidence
1: Evidence of alcohol or evidence of use of any 1 or more qualifying drugs in a blood specimen taken under section 72 or 73 may be used as evidence in a prosecution for any offence under this Act ( see also 77A(1)
2: Neither of the following may be used as evidence of the use of a controlled drug in a prosecution for an offence under the Misuse of Drugs Act 1975:
a: a positive result of an oral fluid test taken under any of sections 71A to 71C
b: a blood specimen taken under section 72 or 73.
24: Section 75 amended (Certificates in blood-alcohol proceedings)
In the heading to section 75 blood-alcohol and drug-driving
25: New section 77A inserted (Presumptions relating to drug testing)
After section 77
77A: Presumptions relating to drug testing
1: For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72
2: For the purposes of proceedings for an infringement offence against section 57A(3), 57B(3), 57C(3), or 57C(4)
3: However, except as provided in subsection (4) section 57A(3), 57B(3), 57C(3), or 57C(4)
a: the person who underwent the tests is not advised by an enforcement officer, without delay after the result of the second oral fluid test is ascertained,—
i: that the second oral fluid test was positive; and
ii: that the person will be presumed to have committed an infringement offence against this Act if the person does not request a blood test within 10 minutes; or
b: the person who underwent the test—
i: advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a)
ii: complies with section 72(2)
4: Subsection (3)﻿(a)
5: The result of an oral fluid test is not admissible in evidence in proceedings for any offence against this Act other than an offence under section 57A(3), 57B(3), 57C(3), or 57C(4)
6: If it is proved in proceedings for an offence against section 60 section 13
26: Section 79 amended (Circumstances in which certificate not admissible in proceedings)
Replace section 79(4)﻿(c) to (e)
c: the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol,—
i: in the case of a defendant who (at the time of the commission of the offence) was younger than 20 or held an alcohol interlock licence or a zero alcohol licence, no alcohol; or
ii: in any other case, not more than 50 milligrams of alcohol per 100 millilitres of blood; or
d: the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain, in the case of a certificate that certified the presence of or a specified proportion of alcohol, 20 milligrams or more of alcohol per 100 millilitres of blood more or less than the proportion of alcohol per 100 millilitres of blood specified in the certificate referred to in section 75(5); or
e: the blood specimen received by the private analyst relating to the defendant has been analysed and found to contain,—
i: if a certificate certified that there is evidence of use of a listed qualifying drug, a blood concentration level equal to or less than the tolerance level for the drug; or
ii: if a certificate certified that there is evidence of use of an unlisted qualifying drug, no presence of the qualifying drug. Mandatory prohibition from driving for 12-hour period
27: New section 94A and cross-heading inserted
After section 94 Mandatory prohibition from driving following 2 positive oral fluid tests
94A: Mandatory prohibition from driving for 12-hour period if results of 2 oral fluid tests are positive
1: An enforcement officer must forbid a person to drive a motor vehicle for a 12-hour period if the person has undergone 2 oral fluid tests and the results of both tests are positive.
2: The 12-hour period starts immediately after the enforcement officer notifies the person of the prohibition.
3: An enforcement officer may arrest without warrant a person who fails to comply with a direction under subsection (1) Mandatory suspension of driver licence
28: Section 95 amended (Mandatory 28-day suspension of driver licence in certain circumstances)
1: In section 95(1)﻿(a)﻿(i) 57A, 57A(1), 57B(1), 57C(1),
2: After section 95(1)﻿(a)﻿(i)﻿(B)
C: to have a blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or
D: to have an unlisted qualifying drug in the person’s blood after the person failed to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F Impoundment of vehicles
29: Section 96 amended (Vehicle seized and impounded for 28 days in certain circumstances)
Replace section 96(1)﻿(d)
d: the person, if they had previously been convicted of 2 or more offences against any of sections 56(1) and (2), 57, 57AA, 57A(1), 57B(1), 57C(1)
i: had a breath alcohol concentration exceeding 400 micrograms of alcohol per litre of breath; or
ii: had a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood; or
iii: had a blood concentration level of a listed qualifying drug exceeding the high-risk level for the drug; or
iv: had any presence of an unlisted qualifying drug in their blood after failing to complete a compulsory impairment test in a manner satisfactory to an enforcement officer who is trained to give the test when the person was required to do so under section 71F
v: failed or refused to undergo a blood test, after having been required or requested to do so under section 72 or 73. Reduction of disqualifications
30: Section 99 amended (Court may reduce disqualification)
After section 99(1)﻿(b)﻿(via)
viaa: section 57B(1)
viab: section 57C(1)
31: Section 103 amended (Persons who may apply to court for limited licence)
In section 103(2)﻿(d)﻿(ii) 57A 57A, 57B, 57C
32: Section 104 amended (Issue of limited licence to be delayed or prohibited in certain cases)
In section 104(1)﻿(c) 57A 57A, 57B, 57C Powers of entry and immobilisation
33: Section 119 amended (Powers of entry)
In section 119(2)﻿(a) section 68 or section 69 section 68, 69, or 71A
34: Section 120 amended (Arrest of persons for alcohol or drug-related offences, or assault on enforcement officer)
In section 120(1A) section 71A section 71F
35: Section 121 amended (Enforcement officer may immobilise vehicle, etc, in specified circumstances)
1: In section 121(1)﻿(a)﻿(i)﻿(B) and (C) section 71A section 71F
2: After section 121(1)﻿(a)﻿(i)﻿(C)
D: has failed or refused to permit a blood specimen to be taken when required to do so by an enforcement officer under section 72(1)﻿(a) or (e) Regulations
36: Section 167 amended (Regulations)
Before section 167(2)﻿(a)
aaa: is 75 demerit points in the case of an offence against section 57B(2) or (3) or 57C(2), (3), or (4)
37: New sections 167AAA and 167AAB inserted
After section 167
167AAA: Setting or amending high-risk and tolerance blood concentration levels for drug-driving offences
1: The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister and the Minister of Police, amend Schedule 5
a: adding the name of a qualifying drug to Part 1 of Schedule 5
b: adding the name of a qualifying drug to Part 2 of Schedule 5
c: amending any high-risk level or tolerance level specified in Schedule 5
2: A high-risk level for a qualifying drug—
a: may be specified only if a tolerance level is specified for the drug; and
b: may be the same as the tolerance level for the drug.
3: Before making a recommendation under subsection (1)
a: seek and consider independent advice from independent experts appointed under section 167AAB
i: the specific effects of each drug referred to in the proposed order; and
ii: the appropriate high-risk level for each drug referred to in any proposed amendment to Part 1 of Schedule 5
iii: the appropriate tolerance level for each drug referred to in any proposed amendment to Part 2 of Schedule 5
b: publish a notice in the Gazette
c: give interested persons a reasonable time, which must be specified in the notice published under paragraph (b)
d: consult the persons, representative groups, government departments, and Crown entities that the Ministers consider reasonable and appropriate to consult in the circumstances.
4: The Minister may seek and consider independent advice from independent experts appointed under section 167AAB subsection (1)
5: The Governor-General may, by Order in Council, amend the name or description of any qualifying drug named or described in Schedule 5
6: An Order in Council made under this section—
a: is secondary legislation ( see
b: if made under subsection (1) see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
167AAB: Ministers may appoint independent experts for purposes of section 167AAA
1: The Minister of Transport, the Minister of Police, and the Science Minister (the Ministers section 167AAA
2: The independent experts appointed under subsection (1)
3: The function of the independent experts is—
a: to carry out medical and scientific evaluations of qualifying drugs; and
b: to advise the Ministers on—
i: the specific effects of qualifying drugs, including the pharmacological, psychoactive, and toxicological effects; and
ii: the appropriate high-risk levels and tolerance levels for qualifying drugs in accordance with subsections (4) and (5)
4: In advising the Ministers on the appropriate high-risk level for a qualifying drug, the independent experts must take into account—
a: the specific effects of the qualifying drug and the medical and scientific evaluations of the drug carried out under subsection (3)﻿(a)
b: that the high-risk level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge, is likely to impair a person’s driving; and
c: the high-risk levels specified, at the time of advising the Ministers, in Part 1 of Schedule 5
5: In advising the Ministers on the appropriate tolerance level for a qualifying drug, the independent experts must take into account—
a: the specific effects of the qualifying drug and the medical and scientific evaluations of the drug carried out under subsection (3)﻿(a)
b: that the tolerance level specified for a qualifying drug should, as far as practicable, be a blood concentration level that, to the best of the independent experts’ knowledge,—
i: is likely to indicate that a person has recently used the drug; and
ii: is unlikely to be exceeded if the person has such a low level of the drug in their blood (whether due to passive exposure or otherwise) that their driving is unlikely to be impaired; and
c: for a qualifying drug that is a prescription medicine, the maximum dose of the prescription medicine that is generally prescribed; and
d: the tolerance levels specified, at the time of advising the Ministers, in Part 2 of Schedule 5 Analysing oral fluid samples for statistical or research purposes
38: Section 209 amended (Taking of blood specimens for statistical or research purposes)
In section 209 saliva oral fluid
39: Section 209A amended (Analysing blood specimens for statistical or research purposes related to use of drugs or alcohol)
1: In the heading to section 209A Analysing oral fluid or
2: Replace section 209A(1)
1: A person may, for statistical or research purposes related to the use of drugs or alcohol, analyse or re-analyse in an approved laboratory—
a: an oral fluid sample taken from a person under any of sections 71A to 71C
b: a blood specimen from a person taken under section 72 or 73.
3: In section 209A(3) No analysis of an oral fluid sample or
4: Replace section 209A(4)
4: An oral fluid sample or a blood specimen analysed or re-analysed under subsection (1)
5: Nothing in this section limits the purposes for which an oral fluid sample or a blood specimen may be analysed or re-analysed under this Act. Transitional, savings, and related provisions
40: Schedule 1 amended
In Schedule 1, after Part 5, insert the Part 6 set out in Schedule 1 Blood concentration levels for offences relating to drug driving
41: New Schedule 5 inserted
After Schedule 4 Schedule 5 Schedule 2
2: Related and consequential amendments
1: Amendments to Acts
Amendment to Legislation Act 2019
42: Amendment to Legislation Act 2019
1: This section amends the Legislation Act 2019
2: In Schedule 4 Land Transport Act 1998 167AAA(1) 2023-03-11 Legislation Act 2019 Amendment to Sentencing Act 2002
43: Amendment to Sentencing Act 2002
1: This section amends the Sentencing Act 2002
2: In section 129(1)﻿(a) 57A(1) 57A(1), 57B(1), 57C(1) 2023-03-11 Sentencing Act 2002
2: Amendments to Land Transport (Offences and Penalties) Regulations 1999
44: Amendments to Land Transport (Offences and Penalties) Regulations 1999
1: This section amends the Land Transport (Offences and Penalties) Regulations 1999
2: In Schedule 1 The following table is small in size and has 6 columns. This table is an amendment to the table in Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999 and should be read with that table to provide understanding of the context. 57A(2) Driving or attempting to drive with blood containing evidence of use of 1 qualifying drug 500 — 200 — 57A(3) Driving or attempting to drive with 2 oral fluid test results indicating use of 1 qualifying drug 500 — 200 — 57B(2) Driving or attempting to drive with blood containing evidence of use of 2 or more qualifying drugs 1,000 — 400 — 57B(3) Driving or attempting to drive with oral fluid test results indicating use of 2 or more qualifying drugs 1,000 — 400 — 57C(2) Driving or attempting to drive with blood containing alcohol and evidence of use of 1 qualifying drug 1,000 — 400 — 57C(3) Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and with oral fluid indicating use of 1 qualifying drug 1,000 — 400 — 57C(4) Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of 1 qualifying drug 1,000 — 400 —
3: In Schedule 2 The following table is small in size and has 3 columns. This table is an amendment to the table in Schedule 2 of the Land Transport (Offences and Penalties) Regulations 1999 and should be read with that table to provide understanding of the context. 57A(2) Driving or attempting to drive with blood containing evidence of use of 1 qualifying drug 50 57A(3) Driving or attempting to drive with 2 oral fluid test results indicating use of 1 qualifying drug 50 57B(2) Driving or attempting to drive with blood containing evidence of use of 2 or more qualifying drugs 75 57B(3) Driving or attempting to drive with oral fluid test results indicating use of 2 or more qualifying drugs 75 57C(2) Driving or attempting to drive with blood containing alcohol and evidence of use of 1 qualifying drug 75 57C(3) Driving or attempting to drive with blood containing alcohol below specified blood-alcohol limits and with oral fluid test results indicating use of 1 qualifying drug 75 57C(4) Driving or attempting to drive with breath containing alcohol below specified alcohol limits and oral fluid test results indicating use of 1 qualifying drug 75 2023-03-11 Land Transport (Offences and Penalties) Regulations 1999