Road Traffic Amendment Act 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Acts/Road%20Traffic%20Amendment%20Act%201997.pdf

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Road Traffic Amendment Act 1997
ROAD TRAFFIC AMENDMENT ACT 1997

1

BERMUDA
1997 : 28

ROAD TRAFFIC AMENDMENT ACT 1997

[Date of Assent 16 December 1997]

[Operative Date 16 January 1998]

WHEREAS it is expedient to amend the Road Traffic Act 1947:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation and commencement
1 This Act which amends the Road Traffic Act 1947 (hereinafter
referred to as "the principal Act") may be cited as the Road Traffic
Amendment Act 1997 and shall come into operation on a day to be
appointed by the Minister by notice published in the Gazette.

Amends section 1 of principal Act
2 Section 1 of the principal Act is amended by inserting in their
appropriate alphabetical position the following—

"analyst" means a person designated by the Minister as an
analyst for the purposes of sections 35C to 35H;

"approved alcohol screening device" means a device of a kind
that is designed to ascertain the presence of alcohol in the

ROAD TRAFFIC AMENDMENT ACT 1997

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blood of a person and is approved as suitable for the
purposes of section 35C(4)(a) by order of the Minister;

"approved container" means—

(a) in respect of breath samples, a container of a kind
designed to receive a sample of the breath of a person for
analysis and that is approved as suitable for the
purposes of sections 35C to 35H by order of the
Minister;

(b) in respect of samples of blood, urine or other bodily
substance, a container of a kind that is designed to
receive such a sample from a person for analysis and
that is approved as suitable for the purposes of sections
35C to 35H by order of the Minister;

"approved drug screening device" means a device of a kind that
is designed to ascertain the presence of a dangerous drug in
the body of a person and is approved as suitable for the
purposes of section 35D by order of the Minister;

"approved instrument" means an instrument of a kind that is
designed to receive and make an analysis of sample of the
breath of a person in order to measure the proportion of
alcohol in the blood of that person and that is approved as
suitable for the purposes of sections 35C to 35H by order of
the Minister;

"dangerous drug" has the meaning assigned to that expression
by section 35B;

"drug" includes any intoxicant other than alcohol;

"grievous bodily harm" has the meaning assigned to that
expression by section 3 of the Criminal Code 1907;

"qualified medical practitioner" means a medical practitioner
registered under the Medical Practitioners Act 1950 and
includes an exempted medical practitioner within the
meaning of that Act; and

"qualified technician" means—

(a) in respect of breath samples, a person designated by the
Commissioner of Police as being qualified to operate an
approved instrument;

(b) in respect of samples of blood, urine or other bodily
substances, any person or class of persons approved by
order of the Minister as being qualified to take such

ROAD TRAFFIC AMENDMENT ACT 1997

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samples from a person for the purposes of sections 35C
to 35H.

Amends section 35 of principal Act
3 Section 35 of the principal Act is amended by inserting next after
subsection (3) the following new subsections—

" (3A) Any person who causes grievous bodily harm to
another person by driving or attempting to drive, or having the
care or control of a motor car, auxiliary bicycle, cycle (not being
an auxiliary bicycle) or any other vehicle other than a motor car
while his ability to do so is impaired by alcohol or a drug,
including a dangerous drug, or by driving or having the care or
control of any such vehicle, whether it is in motion or not, having
consumed alcohol in such a quantity that the proportion thereof
in his blood exceeds 80 milligrammes of alcohol in 100 millilitres
of blood, or while there is present in his body any dangerous
drug, commits an offence.

(3B) Any person who causes the death of another person
by driving or attempting to drive, or having the care or control of
a motor car, auxiliary bicycle, cycle (not being an auxiliary
bicycle) or any other vehicle other than a motor car while his
ability to do so is impaired by alcohol or a drug, including a
dangerous drug, or by driving or having the care or control of
any such vehicle, whether it is in motion or not, having
consumed alcohol in such a quantity that the proportion thereof
in his blood exceeds 80 milligrammes of alcohol in 100 millilitres
of blood, or while there is present in his body any dangerous
drug commits an offence.".

Repeals and replaces sections 35A to 35D
4 Sections 35A to 35D of the principal Act are repealed and
replaced by the following—

"Driving with more than 80 mgs. of alcohol in blood
35A Any person who drives or attempts to drive, or who has
the care or control of, a motor car, auxiliary bicycle, cycle (not
being an auxiliary cycle) or any other vehicle other than a motor
car, whether it is in motion or not, having consumed alcohol in
such a quantity that the proportion thereof in his blood exceeds
80 milligrammes of alcohol in 100 millilitres of blood, commits
an offence.

ROAD TRAFFIC AMENDMENT ACT 1997

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Driving vehicles with dangerous drug present in body
35B (1) Any person who drives or attempts to drive, or has
the care or control of a motor car, auxiliary bicycle, cycle (not
being an auxiliary bicycle) or any other vehicle other than a
motor car, whether it is in motion or not, while there is present
in his body any dangerous drug, commits an offence.

(2) For the purposes of this Act "dangerous drug"
means—

(a) the following controlled drugs, that is to say,
amphetamine, cocaine, diamorphine, lysergide
and cannabinol derivatives;

(b) any metabolite of a controlled drug specified in
paragraph (a);

(c) such other substance, including any metabolite
of such substance, as the Minister may, after
consultation with the Minister for the time being
responsible for health, by notice published in
the Gazette, delcare to be a dangerous drug for
the purposes of this Act.

(3) In this section "controlled drug" has the meaning
assigned to that expression by section 3 of the Misuse of Drugs Act
1972.

Samples of breath where reasonable belief in commission of
offence under section 35 or 35A
35C (1) Subject to subsection (2) where a police officer on
reasonable and probable grounds believes that a person is
committing, or at any time within the preceding twelve hours has
committed an offence under section 35 or 35A, he may arrest
him without a warrant, and by demand made to that person
forthwith or as soon as practicable thereafter, require him to
provide then or as soon thereafter as is practicable such samples
of his breath as in the opinion of a qualified technician are
necessary to enable a proper analysis to be made in order to
determine the proportion, if any, of alcohol in his blood, and to
accompany the police officer for the purpose of enabling such
samples to be taken.

(2) Where a police officer on reasonable and probable
ground believes that, by reason of any physical or mental
condition, of a person referred to in subsection (1)—

ROAD TRAFFIC AMENDMENT ACT 1997

5

(a) that person may be incapable of providing a
sample of his breath; or

(b) it would be impracticable to obtain a sample of
that person's breath,

the police officer, shall require the person to provide such
samples of the person's blood, urine or other bodily substance,
under the conditions referred to in subsection (6), as in the
opinion of a qualified medical practitioner or qualified technician
taking the samples are necessary to enable a proper analysis to
be made in order to determine the proportion, if any, of alcohol
in the person's blood and to accompany the police officer for the
purpose of enabling such samples to be taken.

(3) Where an accident has occurred involving any
motor car, auxiliary bicycle, cycle (not being an auxiliary cycle)
or any other vehicle other than a motor car and the accident has
resulted in the death of or in grievous bodily harm to any person,
a police officer shall arrest without a warrant—

(a) any person whom the officer on reasonable and
probable grounds, believes to have been driving
or attempting to drive any vehicle which the
accident involved at the time of the accident; or

(b) any person whom the police officer on
reasonable and probable grounds believes to
have had the care and control of any such
vehicle at that time, whether in motion or not,

and whom the police officer on reasonable and probable grounds
believes has committed an offence.

(4) Subject to subsection (5), where a police officer
arrests a person under subsection (3) the police officer shall
require the person to provide then, or as soon thereafter as is
practicable—

(a) such a sample of breath as in the opinion of the
police officer is necessary to enable a proper
analysis of the breath to be made by means of
an approved alcohol screening device; and

(b) where the police officer considers it appropriate,
such samples of his breath as in the opinion of a
qualified technician are necessary to enable a
proper analysis to be made in order to determine
the proportion, if any, of alcohol in his blood,

ROAD TRAFFIC AMENDMENT ACT 1997

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and to accompany the police officer for the purpose of enabling
such sample or samples to be taken.

(5) Where a police officer has reasonable and probable
grounds to believe that, by reason of any physical or mental
condition—

(a) a person referred to in subsection (4) may be
incapable of providing a sample of his breath; or

(b) it would be impracticable to obtain a sample of
that person's breath,

the police officer shall require the person to provide such
samples of the person's blood, urine or other bodily substance,
under the conditions referred to in subsection (6), as in the
opinion of the qualified medical practitioner or qualified
technician taking the sample are necessary to enable a proper
analysis to be made in order to determine the proportion, if any,
of alcohol in his blood and to accompany the police officer for
enabling such samples to be taken.

(6) Samples of blood, urine or other bodily substance
may only be taken from a person pursuant to a demand made
by a police officer under this section if the samples are taken by
or under the direction of a qualified medical practitioner and the
qualified medical practitioner is satisfied that the taking of those
samples would not endanger the life or health of the person.

(7) Any person who, without reasonable excuse, fails or
refuses to comply with a demand made to him by a police officer
under this section commits an offence.

Drug screening test where reasonable belief in commission
of offence under section 35(3A) or (3B) or 35B
35D (1) Where an accident has occurred involving any
motor car, auxiliary bicycle, cycle (not being an auxiliary bicycle)
or other vehicle other than a motor car and the accident has
resulted in the death of or in grievous bodily harm to any person,
a police officer shall arrest, without a warrant and by demand
made forthwith or as soon as practicable thereafter shall
require—

(a) any person whom the officer reasonably
suspects was driving or attempting to drive any
vehicle which the accident involved at the time
of the accident; or

ROAD TRAFFIC AMENDMENT ACT 1997

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(b) any person whom the officer reasonably
suspects had the care or control of any such
vehicle at that time, whether in motion or not,

and whom the police officer on reasonable and probable
grounds, believes has committed an offence, to submit to a drug
screening test by a police officer using an approved drug
screening device in order to ascertain whether there is a
dangerous drug present in his body and to accompany the police
officer for the purpose of such test.

(2) Where a police officer on reasonable and probable
grounds believes that a person is committing, or at any time
within the preceding twelve hours has committed an offence
under section 35B, he may arrest him without a warrant, and by
demand made to that person forthwith or as soon as practicable
thereafter, require him to submit to a drug screening test by a
police officer using an approved drug screening device in order to
ascertain whether there is a dangerous drug present in his body
and to accompany the police officer for the purpose of such test.

(3) Any person who, without reasonable excuse, fails or
refuses to comply with a demand made to him by a police officer
under this section commits an offence.

Warrant to obtain samples of blood, urine or other bodily
substance for alcohol analysis
35E (1) Where a Justice of the Peace is satisfied on an
information on oath that there are reasonable grounds to believe
that—

(a) within the preceding twelve hours, a person has
committed an offence under section 35 or 35A and
the person was involved in an accident resulting in
the death of another person or in grievous bodily
harm to himself or any other person; or

(b) within the preceding twelve hours, a person was
driving or attempting to drive any such vehicle as is
mentioned in section 35C(3) at the time of any such
accident as is described in that section; or

(c) within the preceding twelve hours, a person had the
care or control of any such vehicle at such time; and

(d) a qualified medical practitioner is of the opinion
that—

ROAD TRAFFIC AMENDMENT ACT 1997

8

(i) by reason of any physical or mental condition of
the person that resulted from the consumption of
alcohol or the ingestion of any drug, including a
dangerous drug, from the accident or from any
other occurrence related to or resulting from the
accident, the person is unable to consent to the
taking of samples of his blood, urine or other
bodily substance;

(ii) the taking of the samples of blood, urine or other
bodily substance from the person would not
endanger the life or health of the person,

the Justice of the Peace may issue a warrant authorising a police
officer to require a qualified medical practitioner to take, or to
cause to be taken by a qualified technician under the direction of
the qualified medical practitioner, such samples of the blood,
urine or other bodily substance of the person as in the opinion of
the person taking the samples are necessary to enable a proper
analysis to be made in order to determine the proportion, if any,
of alcohol in the blood of the person from whom the samples are
taken.

(2) Samples of blood, urine or other bodily substance
may be taken from a person pursuant to a warrant issued under
subsection (1) only during such time as a qualified medical
practitioner is satisfied that the conditions referred to in
subparagraph (1)(d)(i) and (ii) continue to exist in respect of that
person.

(3) When a warrant issued under subsection (1) is
executed, the police officer shall, as soon as practicable
thereafter, give a copy of the warrant to the person from whom
the samples of blood, urine or other bodily substance were
taken.

Samples of blood, urine or other bodily substance for
dangerous drug analysis
35F (1) Where an accident has occurred involving any
motor car, auxiliary bicycle, cycle (not being an auxiliary bicycle)
or other vehicle other than a motor car and the accident has
resulted in the death of or in grievous bodily harm to any person,
a police officer shall arrest without a warrant and, by demand
made forthwith or as soon as practicable, shall require—

(a) any person whom the officer reasonably
suspects was driving or attempting to drive any

ROAD TRAFFIC AMENDMENT ACT 1997

9

vehicle which the accident involved at the time
of the accident; or

(b) any person whom the officer reasonably
suspects had the care or control of any such
vehicle at that time, whether in motion or not,

and whom the police officer on reasonable and probable grounds
believes has committed an offence, to provide then or as soon
thereafter as is practicable such samples of the person's blood,
urine or other bodily substance, under the conditions referred to
in subsection (2), as, in the opinion of the qualified medical
practitioner or qualified technician taking the samples, are
necessary to enable a proper analysis to be made in order to
determine whether there is present in the person's body any
dangerous drug, and to accompany the police officer for the
purpose of enabling such samples to be taken.

(2) Samples of blood, urine or other bodily substance
may only be taken from a person pursuant to a demand made
by a police officer under subsection (1) if the samples are taken
by or under the direction of a qualified medical practitioner and
the qualified medical practitioner is satisfied that the taking of
those samples would not endanger the life or health of the
person.

(3) Any person who, without reasonable excuse, fails or
refuses to comply with a demand made to him by a police officer
under this section commits an offence.

Warrant to obtain samples of blood, urine or other bodily
substance for dangerous drug analysis
35G (1) Where a Justice of the Peace is satisfied on an
information on oath that there are reasonable grounds to believe
that—

(a) within the preceding twelve hours, a person was
driving or attempting to drive any such vehicle
as is mentioned in section 35F(1) at the time of
any such accident as is described in that
section; or

(b) within the preceding twelve hours, a person had
the care or control of any such vehicle at such
time; and

(c) a qualified medical practitioner is of the opinion
that—

ROAD TRAFFIC AMENDMENT ACT 1997

10

(i) by reason of any physical or mental
condition of the person that resulted
from the consumption of alcohol or the
ingestion of any drug, including a
dangerous drug, from the accident or
from any other occurrence related to or
resulting from the accident, the person
is unable to consent to the taking of
samples of his blood, urine or other
bodily substance; and

(ii) the taking of the samples of blood, urine
or other bodily substance from the
person would not endanger the life or
health of the person,

the Justice of the Peace may issue a warrant authorising a police
officer to require a qualified medical practitioner to take, or to
cause to be taken by a qualified technician under the direction of
the qualified medical practitioner, such samples of the blood,
urine or other bodily substance of the person as in the opinion of
the person taking the samples are necessary to enable a proper
analysis to be made in order to determine whether there is
present in the body of the person from whom the samples are
taken any dangerous drug.

(2) Samples of blood, urine or other bodily substance
may be taken from a person pursuant to a warrant issued under
subsection (1) only during such time as a qualified medical
practitioner is satisfied that the conditions referred to in
subsection (1)(c)(i) and (ii) continue to exist in respect of that
person.

(3) When a warrant issued under subsection (1) is
executed, the police officer shall, as soon as practicable
thereafter, give a copy of the warrant to the person from whom
the samples of blood, urine or other bodily substance were
taken.

Proceedings under sections 35, 35A or 35B
35H (1) The provisions of this section apply to any
proceedings under section 35, 35A or 35B.

(2) In any such proceedings, where it is proved that the
accused occupied the seat ordinarily occupied by the driver of a
motor car, auxiliary bicycle, cycle (not being an auxiliary bicycle),
or any other vehicle other than a motor car, he shall be deemed

ROAD TRAFFIC AMENDMENT ACT 1997

11

to have had the care or control of the vehicle unless he
establishes by a preponderance of evidence that he did not enter
or mount the vehicle for the purpose of setting it in motion.

(3) In any such proceedings, the result of an analysis
of a sample of the breath or blood of the accused (other than a
sample taken pursuant to a demand made under sections 35C(1)
or (4) or 35F(1)) or the urine or other bodily substance of the
accused may be admitted in evidence notwithstanding that,
before the accused gave the sample, he was not warned that he
need not give the sample or that the result of the analysis of the
sample might be used in evidence.

(4) In any such proceedings, where samples of the
breath of the accused have been taken pursuant to a demand
made under section 35C(1), (2), (4) or (5), if—

(a) each sample was taken as soon as practicable
after the time when the offence was alleged to
have been committed and, in the case of the first
sample not later than twelve hours after that
time, with an interval of at least fifteen minutes
between the times when the samples were taken;

(b) each sample was received from the accused
directly into an approved container or into an
approved instrument operated by a qualified
technician; and

(c) an analysis of each sample was made by means
of an approved instrument operated by a
qualified technician,

evidence of the results of the analyses so made is, in the absence
of evidence to the contrary, proof that the proportion of alcohol
in the blood of the accused at the time when the offence was
alleged to have been committed was, where the results of the
analyses are the same, the proportion determined by such
analyses and, where the results of the analyses are different, the
lowest of the proportions determined by such analyses.

(5) In any such proceedings, where a sample of blood,
urine or other bodily substance of the accused has been taken
pursuant to a demand made under sections 35C(1) or (4) or
35F(1) or otherwise with the consent of the accused or pursuant
to a warrant issued under sections 35E or 35G, if—

(a) at the time the sample was taken, the person
taking the sample took an additional sample of

ROAD TRAFFIC AMENDMENT ACT 1997

12

the blood, urine or other bodily substance of the
accused and one of the samples was retained, to
permit an analysis thereof to be made by or on
behalf of the accused and, at the request of the
accused made within three months from the
taking of the samples, one of the samples was
ordered to be released pursuant to subsection
(4);

(b) both samples referred to in paragraph (a) were
taken as soon as practicable after the time when
the offence was alleged to have been committed
and in any event not later than twelve hours
after that time;

(c) both samples referred to in paragraph (a) were
taken by a qualified medical practitioner or a
qualified technician under the direction of a
qualified medical practitioner;

(d) both samples referred to in paragraph (a) were
received from the accused directly into, or placed
directly into, approved containers that were
subsequently sealed; and

(e) an analysis was made by an analyst of at least
one of the samples that was contained in a
sealed approved container,

evidence of the result of the analysis is, in the absence of
evidence to the contrary, proof—

(aa) in the case of an analysis relating to alcohol,
that the proportion of alcohol in the blood of
the accused at the time when the offence
was alleged to have been committed was the
proportion determined by the analysis or,
where more than one sample was analyzed
and the results of the analyses are the
same, the proportion determined by the
analyses and, where the results of the
analyses are different, the lowest of the
proportions determined by the analyses;

(bb)in the case of an analysis relating to a
dangerous drug, where it was determined
by the analysis that there was present in the
body of the accused at the time of the

ROAD TRAFFIC AMENDMENT ACT 1997

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analysis any such drug, that such drug was
present in the body of the accused at the
time the offence was alleged to have been
committed;

(cc) in the case of an analysis relating to a
dangerous drug, where more than one
sample was analyzed—

(i) and it was determined by each
analysis that there was present in
the body of the accused at the time
of each analysis any such drug, that
such drug was present in the body
of the accused at the time the
offence was alleged to have been
committed;

(ii) and it was determined by any of the
analyses that there was not present
in the body of the accused at the
time of any of the analyses any such
drug, that such drug was not
present in the body of the accused
at the time the offence was alleged
to have been committed.

(6) In any such proceedings, a certificate of an analyst
stating that he has made an analysis of a sample of the blood,
urine, breath or other bodily substance of the accused and
stating the result of his analysis is evidence of the statements
contained in the certificate without proof of the signature or the
official character of the person appearing to have signed the
certificate.

(7) In any such proceedings, a certificate of an analyst
stating that he has made an analysis of a sample of any
substance or solution intended for use in an approved
instrument and identified in the certificate and that the sample
analyzed by him was found to be suitable for use in an approved
instrument, is evidence that the substance or solution so
identified is suitable for use in an approved instrument, without
proof of the signature or the official character of the person
appearing to have signed the certificate.

(8) In any such proceedings, where samples of the
breath of the accused have been taken pursuant to a demand

ROAD TRAFFIC AMENDMENT ACT 1997

14

made under section 35C(1) or (4), a certificate of a qualified
technician stating—

(a) that each analysis of the samples has been
made by means of an approved instrument
operated by him in which a substance or
solution suitable for use in that approved
instrument and identified in the certificate was
used;

(b) the results of the analysis so made; and

(c) if the samples were taken by him—

(i) the time when and place where each
sample was taken; and

(ii) that each sample was received from the
accused directly into an approved
container or into an approved
instrument operated by the technician,

is evidence of the statements contained in the certificate without
proof of the signature or the official character of the person
appearing to have signed the certificate.

(9) In any such proceedings, where a sample of the
blood, urine or other bodily substance of the accused has been
taken pursuant to a demand made under sections 35C(1) or (4)
or 35F(1) or otherwise with the consent of the accused or
pursuant to a warrant issued under sections 35E or 35G—

(a) a certificate of a qualified medical practitioner
stating that—

(i) the medical practitioner took the sample
and that before the sample was taken he
was of the opinion that the taking of
samples of blood, urine or other bodily
substance from the accused would not
endanger the life or health of the
accused and, in the case of a demand
made pursuant to sections 35E or 35G,
that by reason of any physical or mental
condition of the accused that resulted
from the consumption of alcohol or the
ingestion of any dangerous drug, the
accident or any other occurrence related
to or resulting from the accident, the

ROAD TRAFFIC AMENDMENT ACT 1997

15

accused was unable to consent to the
taking of samples of his blood, urine or
other bodily substance;

(ii) at the time the sample was taken, an
additional sample of the blood, urine or
other bodily substance of the accused
was taken to permit analysis of one of
the samples to be made by or on behalf
of the accused;

(iii) the time when and place where both
samples referred to in subparagraph (ii)
were taken; and

(iv) both samples referred to in
subparagraph (ii) were received from the
accused directly into, or placed directly
into, approved containers that were
subsequently sealed and that are
identified in the certificate;

(b) a certificate of a qualified medical practitioner
stating that the medical practitioner caused the
sample to be taken by a qualified technician
under his direction and that before the sample
was taken the qualified medical practitioner was
of the opinion referred to in subparagraph (a)(i);
or

(c) a certificate of a qualified technician stating that
the technician took the sample and the facts
referred to in paragraph (a)(ii) to (iv); and

(d) a certificate of an analyst stating that the
analyst has made an analysis of a sample of the
blood, urine or other bodily substance of the
accused that was contained in a sealed
approved container identified in the certificate,
the date on which and place where the sample
was analyzed and the result of that analysis,

is evidence of the statements contained in the certificate without
proof of the signature or official character of the person
appearing to have signed it.

(10) In any proceedings under section 35, 35A or 35B,
evidence that the accused, without reasonable excuse, failed or
refused to comply with a demand made to him by a police officer

ROAD TRAFFIC AMENDMENT ACT 1997

16

under sections 35C(1) or (4) or 35F(1) is admissible and the court
may draw an inference therefrom adverse to the accused.

(11) A Judge of the Supreme Court shall, on the
application of the accused made within three months from the
day on which samples of the blood, urine or other bodily
substance of the accused were taken, order the release of one of
the samples for the purpose of an examination or analysis
thereof, subject to such terms as appear to be necessary or
desirable to ensure the safeguarding of the sample and its
preservation for use in any proceedings in respect of which it
was retained.

(12) An accused against whom a certificate described in
subsection (6), (7), (8) or (9) is produced may, with leave of the
court, require the attendance of the qualified medical
practitioner, analyst or qualified technician, as the case may be,
for the purposes of cross-examination.

(13) No certificate shall be received in evidence pursuant
to subsection (6), (7), (8) or (9) unless the party intending to
produce it has, before the trial, given to the accused not less
than ten days notice of his intention together with a copy of the
certificate.

Penalties for convictions under sections 35A, 35B(1), 35C(7)
and 35F(3)
35I Any person who is convicted of an offence under sections
35A, 35B(1), 35C(7) or 35F(3), shall, on conviction, be liable to
the same penalties, including disqualification for holding or
obtaining a driving licence, as if he had been convicted under
section 35(1).

Protection of qualified medical practitioner or technician
from criminal and civil liability
35J (1) No qualified medical practitioner or qualified
technician is guilty of an offence only by reason of his refusal to
take a sample of blood, urine or other bodily substance, as the
case may be, from a person for the purposes of sections 35C,
35E, 35F or 35G and no qualified medical practitioner is guilty of
an offence only by reason of his refusal to cause to be taken by a
qualified technician under his direction such a sample of blood,
urine or other bodily substance from a person for those
purposes.

ROAD TRAFFIC AMENDMENT ACT 1997

17

(2) No qualified medical practitioner by whom or under
whose direction a sample of blood, urine or other bodily
substance, as the case may be, is taken from a person pursuant
to a demand made under sections 35C(1), (4) or (5), or 35F(1) or
a warrant issued under sections 35E or 35G and no qualified
technician acting under the direction of a qualified medical
practitioner incurs any criminal or civil liability for anything
necessarily done with reasonable care and skill in the taking of
such a sample.

Educational programme for impaired driving offenders
35K (1) This section applies where—

(a) a person is convicted of a first offence under
section 35(1) or (2), section 35B or section 35C;
and

(b) the court makes an order under section 4 of the
1976 Act disqualifying him for a period of 12
months.

(2) Where this section applies, the court may make an
order that the period of disqualification imposed under section 4
of the 1976 Act shall be reduced if, by a date specified in the
order the offender satisfactorily completes an educational
programme approved by the Minister for the purposes of this
section and specified in the order.

(3) The reduction made by an order under this section
in a period of disqualification imposed under section 4 of the
1976 Act shall be a period of three months and shall be specified
in the order.

(4) The court shall not make an order under this
section unless—

(a) the court is satisfied that a place on the
programme specified in the order will be
available for the offender;

(b) the court has explained the effect of the order to
the offender in ordinary language, and has
informed him of the amount of the fees for the
programme and of the requirement that he must
pay them before the beginning of the
programme; and

(c) the offender has agreed that the order should be
made.

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(5) The date specified in an order under this section as
the latest date for completion of the programme must not be a
date later than the last day of the period of disqualification as
reduced by the order.

(6) In this section and in section 35L, "the 1976 Act"
means the Traffic Offences (Penalties) Act 1976.

Certificate of completion of programme
35L (1) An offender shall be regarded for the purposes of
section 35K as having completed a programme satisfactorily if
(and only if) a certificate that he has done so is received by the
clerk of the court making an order under that section before the
end of the period of disqualification imposed under section 4 of
the 1976 Act.

(2) If the certificate referred to in subsection (1) is
received by the clerk before the end of the period of
disqualification imposed under section 4 of the 1976 Act but
after the end of the period as it would have been reduced by the
order, the order shall have effect as if the reduced period ended
with the day on which the certificate is received by the clerk.

(3) The certificate referred to in subsection (1) must be
in such form, contain such particulars, and be given by such
person as the Minister shall determine.

(4) A programme organiser shall give the certificate
referred to in subsection (1) to the offender not later than
fourteen days after the date specified in the order as the latest
date for completion of the programme, unless the offender fails
to make due payment of the fees for the programme, fails to
attend the programme in accordance with the programme
organiser's reasonable instructions, or fails to comply with any
other reasonable requirements of the programme organiser.

(5) Where a programme organiser decides not to give
the certificate referred to in subsection (1), he shall give written
notice of his decision to the offender as soon as possible, and in
any event not later than fourteen days after the date specified in
the order as the latest date for completion of the programme.

(6) An offender to whom a notice is given under
subsection (5) may, within such period as the Minister shall
determine, appeal to the Minister on the ground that the
programme organiser's decision not to give a certificate was
contrary to subsection (4); and if the Minister upholds the appeal

ROAD TRAFFIC AMENDMENT ACT 1997

19

section 35K shall have effect as if the certificate had been duly
received by the clerk of the court.

(7) If fourteen days after the date specified in the order
as the latest date for completion of the programme the
programme organiser has given neither the certificate referred to
in subsection (1) nor a notice under subsection (5), the offender
may, within such period as the Minister shall determine, apply
to the Minister for a ruling that the programme organiser is in
default; and if the Minister makes the ruling section 35K shall
have effect as if the certificate had been duly received by the
clerk of the court.

(8) A notice under subsection (5) must specify the
ground on which it is given and must be given in such form as
the Minister shall determine.

(9) Where the Minister upholds an appeal under
subsection (6) or makes a ruling under subsection (7), the
Minister shall send notice of that fact to the clerk of the court.

Provisions supplementary to sections 35K and 35L
35M (1) The Minister may issue guidance to programme
organisers as to the conduct of programmes approved for the
purposes of section 35K and—

(a) programme organisers shall have regard to any
guidance given to them under this subsection;

(b) in determining for the purposes of section 35L(6)
whether any instructions or requirements of an
organiser were reasonable, regard must be had
to any guidance given under this subsection.

(2) In sections 35K, 35L and this section—

"Minister" means the Minister responsible for health and
social services;

"programme organiser", in relation to a programme,
means the person who, under section 35L(3), is
responsible for giving the certificate referred to in
subsection 35L(1) in relation to the completion of the
programme.".

Savings and transitional provision
5 Anything done—

(a) prior to the date of enactment of this Act; and

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20

(b) under or by virtue of section 35A, 35B, 35C or 35D of
the principal Act,

shall not be affected by the enactment of this Act, and the said sections
35A, 35B, 35C and 35D shall, in relation to any such thing, have effect
as if this Act had not been enacted.

Amends Traffic Offences Penalties Act: Schedule
6 The provisions of the Traffic Offences Penalties Act 1976 set out
in column 1 of the Schedule hereto are amended in the manner specified
in column 2 thereof.

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21

SCHEDULE (section 6)

TRAFFIC OFFENCES PENALTIES ACT 1976

Column 1 Column 2

Section 1 Insert in its appropriate alphabetical position
the following new definition—

""impaired driving traffic offence" means an
offence against any of the following
provisions specified in head 2 of Schedule
1, being provisions of the Act specified in
head 1 of that Schedule, namely, section
35(1), (2), (3A) and (3B) section 35A,
section 35B, section 35C(7) and section
35F(3);".

Section 4 In subsection (2), insert next after the words
"traffic offence" the words ", other than an
impaired driving traffic offence"; and insert
next after that subsection the following new
subsection—

" (2A) Where a person is convicted of
an impaired driving traffic offence and the
court orders him to be disqualified, the court
shall order him to be disqualified for driving
all motor vehicles, including auxiliary bicycles
and may, in addition to any other order under
this section, order him to be disqualified until
he has, since the date of the order, passed the
test of competence to drive prescribed under
the Motor Car Act 1951.".

Schedule 1 (a) Insert next after the heads relating to
section 35(2) of the Road Traffic Act 1947
the following new heads—

"Head 1: Road Traffic Act 1947

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Head 2: section 35(3A)

Head 3: Causing grievous bodily harm
by driving or attempting to
drive, or having the care or
control of a motor car,
auxiliary bicycle, cycle (not
being an auxiliary bicycle) or
any other vehicle other than a
motor car while the ability to
do so is impaired by alcohol
or a drug, including a
dangerous drug, or causing
grievous bodily harm by
driving or having the care or
control of any such vehicle,
whether it is in motion or not,
having consumed alcohol in
such a quantity that the
proportion thereof in his
blood exceeds 80
milligrammes of alcohol in
100 millilitres of blood, or
while there is present in the
body any dangerous drug

Head 4: on indictment

Head 5: Notwithstanding section
54(a), (b) and (d) of the
Criminal Code 1907, not less
than 1 and not more than 10
years

Head 6: obligatory - 3 years

Head 1: Road Traffic Act 1947

Head 2: section 35(3B)

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Head 3: Causing death by driving or
attempting to drive, or having
the care or control of a motor
car, auxiliary bicycle, cycle
(not being an auxiliary
bicycle) or any other vehicle
other than a motor car while
the ability to do so is
impaired by alcohol or a drug,
including a dangerous drug,
or causing death by driving or
having the care and control of
any such vehicle, whether it
is in motion or not, having
consumed alcohol in such a
quantity that the proportion
thereof in his blood exceeds
80 milligrammes of alcohol in
100 millilitres of blood, or
while there is present in the
body any dangerous drug

Head 4: on indictment

Head 5: notwithstanding section
54(a), (b) and (d) of the
Criminal Code Act 1907, not
less than 1 and not more
than 14 years

(b) in the heads relating to section 35B of
the Road Traffic Act 1947, in Head 2,
delete the words "section 35B and
substitute the words "section 35A" and
insert next after those heads the
following—

"Head 1: Road Traffic Act 1947

Head 2: section 35B(1)

Head 3: Driving, attempting to drive or
having the care or control of a motor car,
auxiliary bicycle, cycle (not being an
auxiliary bicycle) or any other vehicle
other than

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a motor car while there is
present in the body any
dangerous drug

Head 4: summary

Head 5: if first offence - $1,000 or 12
months, or both

if second offence committed
within 2 years of date of
conviction of first offence -
$2,000 or 18 months, or both

if second offence in any other
case - $1,000 or 12 months,
or both

if third or subsequent offence
committed within 2 years of
date of conviction of first
offence - $4,000 or 2 years, or
both

if third or subsequent offence
in any other case - $1,000 or
12 months, or both

Head 6: if first offence; obligatory - 12
months, discretionary - 5
years

if second offence committed
within 2 years of date of
conviction of first offence;
obligatory - 3 years,
discretionary - 5 years

if third or subsequent offence
committed within 2 years of
date of conviction of first
offence; obligatory - 5 years

if third or subsequent offence
in any other case; obligatory -
12 months, discretionary - 5
years";

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Head 1: Road Traffic Act 1947

Head 2: section 35F(3)

Head 3: Failing to comply with the
demand of a police officer

Head 4: summary

Head 5: if first offence - $1,000 or 12
months, or both

if second offence committed
within 2 years of date of
conviction of first offence -
$2,000 or 18 months, or both

if second offence in any other
case - $1,000 or 12 months,
or both

if third or subsequent offence
committed within 2 years of
date of conviction of first
offence - $4,000 or 2 years, or
both

if third offence or subsequent
offence in any other case -
$1,000 or 12 months, or both

Head 6: if first offence; obligatory - 12
months, discretionary - 5
years

if second offence committed
within 2 years of date of
conviction of first offence;
obligatory - 3 years,
discretionary - 5 years

if third or subsequent offence
committed within 2 years of
date of conviction of first
offence; obligatory - 5 years

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if third or subsequent offence
in any other case; obligatory -
12 months, discretionary - 5
years".

Schedule 2
Group 1

(a) Insert next after the heads relating to
section 35(2) of the Road Traffic Act 1947
the following—

"Head 1: Road Traffic Act 1947

Head 2: section 35(3A)

Head 3: Causing grievous bodily harm
by driving or attempting to
drive, or having the care or
control of a motor car,
auxiliary bicycle, cycle (not
being an auxiliary bicycle) or
any other vehicle other than a
motor car while the ability to
do so is impaired by alcohol
or a drug or causing grievous
bodily harm by driving or
having the care and control of
any such vehicle, whether it
is in motion or not, having
con-sumed alcohol in such a
quantity that the proportion
thereof in his blood exceeds
80 milligrammes of alcohol in
100 millilitres of blood, or
while there is present in the
body any dangerous drug

Head 1: Road Traffic Act 1947

Head 2: section 35(3B)

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Head 3: Causing death by driving or
attempting to drive, or having
the care or control of a motor
car, auxiliary bicycle, cycle
(not being an auxiliary
bicycle) or any other vehicle
other than a motor car while
the ability to do so is
impaired by alcohol or a drug
or causing death by driving or
having the care and control of
any such vehicle, whether it
is in motion or not, having
consumed alcohol in such a
quantity that the proportion
thereof in his blood exceeds
80 milligrammes of alcohol in
100 millilitres of blood, or
while there is present in the
body any dangerous drug";

(b) delete the heads relating to sections
35A(2) and section 35B of the Road
Traffic Act 1947 and substitute the
following heads—

"Head 1: Road Traffic Act 1947

Head 2: section 35A

Head 3: Driving or having the care or
control of a motor car,
auxiliary bicycle, cycle (not
being an auxiliary bicycle) or
any other vehicle other than a
motor car where alcohol
exceeds 80 milligrammes in
100 millilitres of blood

Head 1: Road Traffic Act 1947

Head 2: section 35B

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Head 3: Driving or having the care or
control of a motor car,
auxiliary bicycle, cycle (not
being an auxiliary bicycle) or
any other vehicle other than a
motor car while there is
present in the body any
dangerous drug

Head 1: Road Traffic Act 1947

Head 2: section 35C(7)

Head 3: Failing to comply with the
demand of a police officer

Head 1: Road Traffic Act 1947

Head 2: section 35F(3)

Head 3: Failing to comply with the
demand of a police officer".