ngement of Provisions

1. Short title and
commencement
2. Interpretation
3. Driving when drunk or
drugged
4. Insertion of new provisions

__________

2009, No. 10

AN ACT to amend the Road Traffic Ordinance 1960.
[26th
June 2009]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

1. Short title and commencement-(1) This Act may be
cited as the Road Traffic (Breathalyser) Amendment Act 2009
and shall be read with and form part of the Road Traffic
Ordinance 1960 (the “Principal Act”).
(2) This Act comes into force on a date to be nominated by
the Minister.

2. Interpretation – Section 2 of the Principal Act is
amended by inserting the following definitions in the correct
alphabetical order:


2 Road Traffic (Breathalyser) Amendment 2009, No.10

“blood specimen” means a specimen of venous blood taken
in accordance with normal medical procedures;
“blood test” means the taking of a blood specimen for
analysis;
“breath screening device” means a device of a kind
approved for the purpose of breath screening tests by the
Minister;
“breath screening test” means a test carried out by means of
a breath screening device in accordance with this Act;
“Commissioner” means Commissioner of Police and Prison
Services;
“enforcement officer” means:
(a) a police officer in uniform; or
(b) an officer of the Land Transport Authority
authorised to enforce provisions of the Road
Traffic Ordinance 1960.
“evidential breath test” means a test carried out by means of
an evidential breath test device in accordance with this
Act;
“evidential breath test device” means a device of a kind
approved for the purpose of conclusive evidential breath
tests in accordance with this Act;
“medical officer” means:
(a) a person acting in a hospital and who, in the normal
course of the person’s duties, takes blood
specimens; or
(b) a nurse; or
(c) a medical laboratory technician.
“medical practitioner” has the same meaning as in section 2
of the Medical Practitioners Act 2007;
“Minister” means Minister responsible for Transport;
“passive breath testing device” means a passive breath
testing device of a kind approved by the Minister
responsible for Transport;
“public place” has the same meaning as in section 2 of the
Police Offences Ordinance 1961.


2009, No.10 Road Traffic (Breathalyser) Amendment 3

3. Driving when drunk or drugged – Section 40 of the
Principal Act is amended by deleting the section in its entirety
and substituting with the following:
“40. Contravention of specified breath alcohol and
blood alcohol limits and drugs-(1) A person commits an
offence if the person drives or attempts to drive a motor
vehicle while the proportion of alcohol in the person’s
breath, as ascertained by an evidential breath test
subsequently undergone by that person under section 40B
exceeds 40 micrograms of alcohol per 100 millilitres of
breath.
(2) A person commits an offence if the person drives or
attempts to drive a motor vehicle while the proportion of
alcohol in the person’s blood as ascertained by the analysis
of a blood specimen subsequently taken from the person
under section 40E or section 40F, exceeds 80 milligrams of
alcohol per 100 millilitres of blood.
(3) A person commits an offence if the person drives or
attempts to drive a motor vehicle while under the influence
of a drug, to such an extent as to be incapable of having
proper control of the vehicle.
(4) For the purposes of subsection (3), a “drug” means a
narcotic prescribed under the Narcotics Act 1967 or any
other substance that can impair driving ability.
(5) A person who is convicted of an offence against
subsection (1), (2) or (3) of this section is liable to a fine not
exceeding 50 penalty units, or imprisonment for a term not
exceeding five (5) years imprisonment, or both.
(6) A person convicted of an offence under this section
shall, unless the Court for special reasons thinks fit to order
otherwise and without prejudice to the power of the Court to
order a larger period of disqualification, be disqualified for a
period of 12 months from holding or obtaining a driving
licence.”.


4 Road Traffic (Breathalyser) Amendment 2009, No.10
4. Insertion of new provisions – The Principal Act is
amended by inserting after section 40 the following:
“40A. Who must undergo a breath screening
test-(1) An enforcement officer may require any of the
following persons to undergo a breath screening test without
delay:
(a) a driver of, or a person attempting to drive, a
motor vehicle on a road; or
(b) a person whom the officer has good cause to
suspect has recently committed an offence
against this Act that involves the driving of a
motor vehicle; or
(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 whom the officer has
good cause to suspect was in the motor
vehicle at the time of the accident.
(2) An enforcement officer may not require a person
who is in a hospital or doctor’s surgery as a result of an
accident involving a motor vehicle to undergo a breath
screening test.
(3) A person who has undergone a breath screening test
under this section must remain at the place where the person
underwent the test until after the result of the test is
ascertained, and an enforcement officer may arrest the
person without warrant if the person refuses or fails to
remain at that place.
(4) If an enforcement officer is entitled to require a
person to undergo a breath screening test, the officer may
also require that person to undergo a test using a passive
breath testing device, which test is one where the officer
holds a passive breath testing device near the person’s


2009, No.10 Road Traffic (Breathalyser) Amendment 5

mouth for the purpose of ascertaining whether or not there is
any alcohol in the person’s breath.
(5) The use or non-use of a passive breath testing device
does not of itself affect the validity of a breath screening
test.
40B. Who must undergo an evidential breath
test-(1) An enforcement officer may require a person to
accompany an enforcement officer to a place where it is
likely that the person can undergo an evidential breath test
or a blood test (or both) when required to do so by the
officer, if:
(a) the person has undergone a breath screening test
under section 40A and it appears to the
officer that the test indicates that the
proportion of alcohol in the person’s breath
exceeds 40 micrograms of alcohol per 100
millilitres of breath; or
(b) the person fails or refuses to undergo a breath
screening test without delay after having
been required to do so by the officer under
section 40A; or
(c) the person could be required to undergo a breath
screening test without delay under section
40A but cannot be tested because either a
breath screening device is not readily
available or for any reason a breath screening
test cannot then be carried out, and there is
good cause to suspect that the person has
consumed alcohol.
(2) If it is not practicable for a person to undergo an
evidential breath test at a place, to which the person has
accompanied an enforcement officer under subsection (1),
an enforcement officer may require the person to
accompany the officer to any other place where it is likely
that the person can undergo an evidential breath test or a
blood test (or both).


6 Road Traffic (Breathalyser) Amendment 2009, No.10

(3) For the avoidance of doubt, it is declared that an
enforcement officer may require a person to accompany the
officer to a place under subsection (1) if:
(a) it is likely that the person can undergo an
evidential breath test at that place, whether or
not it is likely that the person can undergo a
blood test at that place; or
(b) it is likely that the person can undergo a blood
test at that place, whether or not it is likely
that the person can undergo a blood test at
that place.
(4) If the person:
(a) has accompanied an enforcement officer to a
place under this section; or
(b) has been arrested under subsection (6) and taken
to or detained at a place,
an enforcement officer may require the person to undergo
without delay at that place an evidential breath test (whether
or not the person has already undergone a breath screening
test).
(5) A person must:
(a) accompany the enforcement officer to a place
when required to do so under this section;
or
(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
evidential breath test or a blood test
under this Act, or to accompany an
enforcement officer to another place
under this section; or
(c) if the person has undergone an evidential
breath test under this section, remain at
the place where the person underwent the
test until after the result of the test is
ascertained.
(6) An enforcement officer may arrest without warrant a
person who contravenes subsection (5).


2009, No.10 Road Traffic (Breathalyser) Amendment 7

(7) An enforcement officer may not require a person
who is in a hospital or doctor’s surgery as a result of an
accident involving a motor vehicle to undergo an evidential
breath test.

40C. Person may be required to undergo further
evidential breath test if initial test fails to produce
result-(1) If for any reason an evidential breath test carried
out under section 40B by an enforcement officer fails to
produce a result, the enforcement officer may, at his or her
discretion, either require the person to undergo without
delay a further evidential breath test or proceed as if section
40E(1)(c) applies.
(2) A requirement made under subsection (1) is deemed
to be a requirement under section 40B.
40D. Right to elect blood test – If the result of a
person’s evidential breath test is over 40 micrograms of
alcohol per 100 millilitres of breath but under 50
micrograms of alcohol per 100 millilitres of breath, the
person has the right, within 10 minutes of being advised by
an enforcement officer of the matters specified in section
40K(3)(a) (which relates to the conditions of the
admissibility of the test), to elect to have a blood test to
assess the proportion of alcohol in his or her blood.
40E. Who must give blood specimen at places other
than hospital or surgery-(1) A person must permit a
medical practitioner or medical officer to take a blood
specimen from the person when required to do so by an
enforcement officer if:
(a) the person fails or refuses to undergo without
delay an evidential breath test after having
been required to do so by an enforcement
officer under section 40B; or
(b) the person has undergone an evidential breath
test under section 40B, and -
(i) it appears to the officer that the
test is positive; and


8 Road Traffic (Breathalyser) Amendment 2009, No.10

(ii) within 10 minutes of being
advised by an enforcement officer of the
matters specified in section 40K(3)(a)
(which sets out the conditions of the
admissibility of the test), the person
advises the officer that the person wishes
to undergo a blood test; or
(c) an evidential breath testing device is not readily
available at the place to which the person has
accompanied an enforcement officer under
section 40B (whether or not at the time the
requirement was made it was likely that the
person could undergo an evidential breath
test at that place) or to which the person has
been taken under arrest (as the case may be),
or for any reason an evidential breath test
cannot then be carried out at that place; or
(d) the officer has arrested the person and has good
cause to suspect that the person has
committed an offence against any of sections
40 to 40E and either -
(i) a medical practitioner has
examined the person and believes that the
person may be under influence of drink
or drug, or both; or
(ii) the person has refused to be
examined by a medical practitioner for
the purposes of this paragraph.
(2) A person who has been required by an enforcement
officer under subsection (1) to permit the taking of a blood
specimen must, without delay after being requested to do so
by a medical practitioner or medical officer, permit that
practitioner or medical officer to take blood specimen from
that person.
(3) If it is not practicable for a blood specimen to be
taken from a person by a medical practitioner or medical
officer at a place where the person has been required under
this section to permit the taking of a blood specimen, the
person must accompany an enforcement officer to any other


2009, No.10 Road Traffic (Breathalyser) Amendment 9

place where it is likely that a blood specimen can be taken
from the person by a medical practitioner or medical officer
if the officer requires the person to do so.
(4) If a blood specimen taken under this section is
insufficient to be divided into two (2) parts in accordance
with section 40G:
(a) the person from whom the specimen was taken
must permit a medical practitioner or medical
officer to take a further blood specimen
immediately after being requested to do so
by the medical practitioner or medical
officer; and
(b) a further blood specimen so taken is to be treated
as part of the original blood specimen taken
from the person.
(5) An enforcement officer may arrest a person without
warrant if the person:
(a) fails or refuses to accompany an enforcement
officer to a place when required to do so
under this section; or
(b) having accompanied an enforcement officer to a
place under this section, fails or refuses to
remain at that place until requested by a
medical practitioner or medical officer to
permit a blood specimen to be taken under
this section.

40F. Who must give blood specimen in hospital or
surgery-(1) A person who is under examination, care or
treatment in a hospital or doctor’s surgery must permit a
blood specimen to be taken from the person by:
(a) the medical practitioner who is in immediate
charge of the examination, care or treatment
of the person; or
(b) another medical practitioner or a medical officer.
(2) If a person under examination, care, or treatment in a
hospital or doctor’s surgery is unconscious, a blood
specimen may be taken from the person under this section
by:


10 Road Traffic (Breathalyser) Amendment 2009, No.10

(a) the medical practitioner who is in immediate
charge of the examination, care, or treatment
of the person; or
(b) another medical practitioner or a medical officer.
(3) The medical practitioner who is in immediate charge
of the examination, care, or treatment of the person in a
hospital or doctor’s surgery:
(a) may cause a blood specimen to be taken by
another medical practitioner or a medical
officer; and
(b) must either take a blood specimen or cause a
blood specimen to be taken by another
medical practitioner or medical officer, if
an enforcement officer requests him or her
to do so,
whether or not the person has consented to taking of the
specimen and whether or not the person is capable of giving
consent.
(4) If the specimen originally taken is insufficient to be
divided into two (2) parts in accordance with section 40G,
the medical practitioner who is in immediate charge of the
examination, care, or treatment of the person may take or
cause to be taken by another medical practitioner or a
medical officer a further blood specimen (which further
specimen is for the purposes of this Act to be treated as a
part of the original blood specimen taken from the person),
whether or not the person has consented to the taking of the
specimen and whether or not the person is capable of giving
consent.
(5) Despite subsection (3)(b), a blood specimen may be
taken under any provision of this section only if the medical
practitioner:
(a) has reasonable grounds to suspect that the person
is in hospital or doctor’s surgery as a result
of an accident involving a motor vehicle;
(b) has examined the person and is satisfied that the
taking of blood specimen would not be
prejudicial to the person’s proper care or
treatment; and


2009, No.10 Road Traffic (Breathalyser) Amendment 11

(c) tells the person (unless the person is
unconscious) that the blood specimen is
being or was taken under this section for
evidential purposes.
(6) If a blood specimen is taken under this section from
a person who is unconscious, the medical practitioner or
medical officer who took the specimen must notify the
person in writing as soon as practicable that the specimen
was taken under this section for evidential purpose.
(7) No civil or criminal proceedings may be taken
against the Government, a health service provider, or any
other person in respect of the taking of a blood specimen
under this section, or in respect of the sending of a blood
specimen to an approved analyst, on the ground of lack of
consent of a person whose consent to the taking of the blood
specimen would have been otherwise required by law if this
section had not been enacted.
(8) Nothing in subsection (7) applies to any proceeding
on the ground of any negligent act or omission in the taking
of a blood specimen.

40G. Procedure for dealing with blood specimens-(1)
A blood specimen taken under section 40E or section 40F
must be divided into two (2) parts, and:
(a) each part must be placed in a separate bottle and
the bottle must then be sealed; and
(b) each part is a blood specimen for the purposes of
this Act.
(2) One (1) or more preservative substances and anti-
coagulant substances may be added to a blood specimen by
placing them in the bottle, whether before or after the
specimen is taken and placed in the bottle.
(3) In the case of a blood specimen taken under section
40E, an enforcement officer must, within seven (7) days
after the date on which the specimen was taken, deliver or
cause to be delivered (whether by courier or otherwise), or
post by registered post or cause to be posted by registered
post, both parts of the blood specimen to an approved


12 Road Traffic (Breathalyser) Amendment 2009, No.10

analyst for the analysis of one (1) of those parts and the
custody of the other.
(4) In the case of a blood specimen taken under section
40F, the medical practitioner or medical officer by whom
the specimen was taken must:
(a) within seven (7) days after the date on which the
specimen was taken, deliver or cause to be
delivered (whether by courier or otherwise),
or post or cause to be posted by registered
post, both parts of the blood specimen to an
approved analyst for the analysis of one (1)
of those parts and the custody of the other;
and
(b) give the Commissioner a written notification -
(i) identifying the approved analyst to
whom the parts of the blood specimen were
(or are being) delivered or posted; and
(ii) naming the person from whom the
blood specimen was taken.
(5) If a person from whom a blood specimen was taken
wishes to have the specimen analysed by a private analyst:
(a) the person (or the person's solicitor or counsel)
may apply to the Commissioner in
accordance with subsection (7); and
(b) if the application complies with
subsection (7) -
(i) the Commissioner, or a person
authorised for the purpose by the
Commissioner, must forward a copy of the
application to the approved analyst to whom
the blood specimen taken from the person
was delivered or posted under subsection (3)
or subsection (4); and
(ii) that analyst must send by registered
post, personal delivery, or delivery by courier
one (1) part of that blood specimen to the
private analyst specified in the application.


2009, No.10 Road Traffic (Breathalyser) Amendment 13

(6) If an application under subsection (5) does not
comply with subsection (7), the Commissioner or authorised
person may refuse to forward a copy of the application to
the approved analyst.
(7) An application under subsection (5)(a) must:
(a) be made in writing to the Commissioner not later
than 28 days after -
(i) the date on which a summons in
respect of an offence against this Act (which
offence is an offence arising out of the
circumstances in respect of which the blood
specimen was taken) is served on the
defendant; or
(ii) if the defendant is arrested in respect
of any such offence, the date on which the
defendant is so arrested; or
(iii) in any case to which subparagraph (i)
or subparagraph (ii) does not apply, the date
on which the defendant is first charged in
court with any such offence; and
(b) state the full name and address and the
occupation of the person and the date of the
alleged offence; and
(c) identify the private analyst to whom the part of
the blood specimen is to be sent and the
address of the private analyst.
(8) A blood specimen sent to an approved analyst under
subsection (3) or subsection (4) may be destroyed at any
time later than one (1) year after the date the specimen was
so sent.

40H. Certificates in blood-alcohol proceedings-(1)
Except as provided in section 40L, production of a
certificate to which this section applies in proceedings for an
offence against driving while intoxicated is sufficient
evidence, in the absence of proof to the contrary, of such of
the matters as are stated in the certificate and of the
sufficiency of the authority and qualifications of the person
by whom the certificate is made and, in the case of a


14 Road Traffic (Breathalyser) Amendment 2009, No.10

certificate referred to in subsection (5), of the person who
carried out the analysis.
(2) This section applies to a certificate purporting to be
signed by a medical practitioner or medical officer and
certifying that:
(a) a specimen of venous blood was taken by the
practitioner or medical officer in accordance
with normal medical procedures from a
person named in the certificate; and
(b) the specimen was divided by the practitioner or
medical officer into two (2) parts, or the
specimen was insufficient for division and
the practitioner or medical officer took a
further specimen; and
(c) the practitioner or medical officer placed and
sealed in a separate bottle each part or
specimen (as the case may be); and
(d) each separate bottle was received by the
practitioner or medical officer in a sealed
blood specimen collecting kit; and
(e) the practitioner or medical officer handed each
such separate bottle to an enforcement officer
named in the certificate.
(3) This section also applies to a certificate purporting to
be signed by a medical practitioner and certifying that:
(a) the person named in the certificate was in a
hospital or doctor's surgery;
(b) the practitioner, being a medical practitioner in
immediate charge of the examination, care,
or treatment of that person, took a blood
specimen or caused a blood specimen to be
taken by any other medical practitioner or
any medical officer from the person under
section 40F;
(c) at the time the blood specimen was taken from
the person, the practitioner had reasonable
grounds to suspect that the person was in the
hospital or doctor’s surgery as a result of an
accident involving a motor vehicle; and


2009, No.10 Road Traffic (Breathalyser) Amendment 15

(d) before taking the blood specimen or causing the
blood specimen to be taken from the person,
the practitioner examined the person and was
satisfied that the taking of the blood
specimen would not be prejudicial to the
person’s proper care or treatment; and
(e) the practitioner either -
(i) told the person that the blood specimen
was being or had been taken under
section 40F for evidential purposes;
or
(ii) if the person was unconscious when
the specimen was taken, notified the
person in writing as soon as
practicable that the blood specimen
was taken under section 40F for
evidential purposes.
(4) This section also applies to a certificate purporting to
be signed by a medical practitioner or medical officer and
certifying:
(a) all the matters referred to in paragraphs (a) to
(d) of subsection (2);
(b) that the practitioner or medical officer sent or
caused to be sent by registered post,
personal delivery, or delivery by courier,
on a specified date, both parts of the
specimen (or both specimens) to a
specified approved analyst in accordance
with section 40G; and
(c) that the practitioner or medical officer
notified the Commissioner in writing of
the approved analyst to whom the parts
of the specimen (or the specimens) were
delivered or posted.


16 Road Traffic (Breathalyser) Amendment 2009, No.10

(5) This section also applies to a certificate purporting to
be signed by an approved analyst and certifying that:
(a) a blood specimen in a sealed bottle was, on a
specified date, delivered to an approved
analyst (or a person employed by an
approved laboratory and approved for the
purpose by an approved analyst) for analysis,
and was delivered by registered post or
personal delivery or delivery by courier;
(b) on analysis of the blood specimen by an analyst
specified in the certificate, a specified
proportion of alcohol or of a drug, or both (as
the case may be), was found in the specimen;
and
(c) no such deterioration or congealing was found as
would prevent a proper analysis.
(6) This section also applies to a certificate purporting to
be signed by an approved analyst and certifying that,
following an application under section 40G, a part of a blood
specimen was posted to a specified private analyst by
registered post, personal delivery, or delivery by courier,
and addressed to the private analyst at the address given in
the application.
(7) For the purposes of this section, it is not necessary
for the person making a certificate to specify his or her
entitlement to give the certificate if the certificate indicates
that the person belongs to the general category of persons
who may make such a certificate.

40I. Certificates of compliance for evidential breath
testing devices-(1) An evidential breath testing device must
be supported by a certificate of compliance given under this
section by a person approved for the purpose by the
Minister.
(2) At any trial or defended hearing for an offence
involving excess breath alcohol recorded by the device
(being an offence committed on or after the commencement
of this section), the prosecution must produce to the court a
certified copy of the certificate of compliance.


2009, No.10 Road Traffic (Breathalyser) Amendment 17

The certification must be given by a person authorised for
the purpose by the Commissioner and must state that the
copy is a true copy of the original certificate.
(3) Subject to subsection (4), a certificate of compliance
or a certified copy of it that is produced under subsection (2)
is for all purposes conclusive evidence of the matters stated
in the certificate, and neither the matters stated in the
certificate nor the manufacturer’s specifications for the
device concerned may be challenged, called into question,
or put in issue in any proceedings in respect of an offence
involving excess breath alcohol recorded by the device.
(4) In the absence of proof to the contrary, a document
purporting to be a certificate of compliance or a certified
copy of a certificate of compliance:
(a) must be treated as such a certificate or certified
copy; and
(b) is conclusive evidence of the sufficiency of the
authority of the person who signed the
document.
(5) The Minister may approve for each kind of
evidential breath testing device the matters that are required
to be stated in a certificate of compliance.
(6) Without limiting subsection (5):
(a) in the case of any kind of evidential breath
testing device approved after the
commencement of this section, the
approval under subsection (5) must be
given in conjunction with the notice
approving that kind of device;
(b) an approval under subsection (5) must specify
the maximum period of service for the
relevant kind of device, and must require
a certificate of compliance to specify the
date on which that period began or
begins;


18 Road Traffic (Breathalyser) Amendment 2009, No.10

(c) an approval under subsection (5) must specify
the maximum period permitted between
the date on which a certificate of
compliance is issued and the date by
which a test result must be obtained, and
must require a certificate of compliance
to specify the date on which the
certificate of compliance was issued;
(d) an approval under subsection (5) must require
a certificate of compliance to include a
statement to the effect that the device is
being maintained within the
manufacturer’s specifications.

40J. Presumptions relating to blood
specimens-(1) In proceedings for an offence against this
Act it is to be presumed, in the absence of proof to the
contrary, that:
(a) if a certificate referred to in section 40H
names a person having the same name,
address, and occupation as the defendant
as the person from whom the specimen of
blood was taken, the specimen was taken
from the defendant;
(b) every approved analyst who signed a
certificate referred to in section 40H was
duly authorised to sign it; and
(c) if the bottle in which a blood specimen (or
part of a blood specimen) was placed was
received by a medical practitioner or
medical officer in a sealed blood
specimen collecting kit, the bottle
contained a substance (whether or not a
combination or mixture of two (2) or
more substances) and that substance was
a preservative and anti-coagulant.


2009, No.10 Road Traffic (Breathalyser) Amendment 19

(2) On the request of a person from whom a blood
specimen has been taken under section 40E or section 40F,
or of the person's solicitor or counsel, copies of any
certificates referred to in subsection (1) that relate to that
blood specimen must be supplied by the prosecutor to the
person making the request.

40K. Presumptions relating to alcohol-
testing-(1) For the purposes of proceedings for an offence
against this Act arising out of the circumstances in respect
of which an evidential breath test was undergone by the
defendant, it is to be conclusively presumed that the
proportion of alcohol in the defendant's breath at the time of
the alleged offence was the same as the proportion of
alcohol in the defendant's breath indicated by the test.
(2) 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 40E or section 40F, it is to be conclusively
presumed that the proportion of alcohol in the defendant's
blood at the time of the alleged offence was the same as the
proportion of alcohol in the blood specimen taken from the
defendant.
(3) Except as provided in subsection (4), the result of a
positive evidential breath test is not admissible in evidence
in proceedings for an offence against any of sections 40 to
40E, if:
(a) the person who underwent the test is not advised
by an enforcement officer, without delay
after the result of the test is ascertained, that
the test was positive and that, if the person
does not request a blood test within 10
minutes -
(i) in the case of a positive test that
indicates that the proportion of
alcohol in the person’s breath
exceeds 40 micrograms of alcohol
per 100 millilitres of breath, the
test could of itself be conclusive


20 Road Traffic (Breathalyser) Amendment 2009, No.10

evidence to lead to that person’s
conviction for an offence against
this Act; 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), that
the person wishes to undergo a blood
test; and
(ii) complies with section 40E(2).
(4) Subsection (3)(a) does not apply if the person who
underwent the test fails or refuses to remain at the place
where the person underwent the test until the person can be
advised of the result of the test.
(5) The result of a positive evidential breath test is not
rendered inadmissible under subsection (3) if:
(a) the test was carried out by means of a
conclusive evidential breath testing
device; and
(b) the test indicated that the proportion of
alcohol in the breath of the person who
underwent the test exceeded 50
micrograms of alcohol per 100 millilitres
of breath.
(6) If it is proved in proceedings for an offence against
section 40M that the defendant failed or refused to comply
with section 40O without reasonable cause, that failure or
refusal may be treated as supporting any evidence given on
behalf of the prosecution, or as rebutting any evidence given
on behalf of the defendant, concerning the defendant's
condition at the time of the alleged offence.

40L. Circumstances in which certificate not
admissible in proceedings-(1) No certificate referred to in
subsection (2) or subsection (3) or subsection (4) of section
40H (which certificates relate to the taking of a blood
specimen by a medical practitioner or medical officer) is
admissible in evidence in proceedings for an offence against
this Act if the court, on application made by the defendant


2009, No.10 Road Traffic (Breathalyser) Amendment 21

not less than 14 days before the hearing, orders that the
registered medical practitioner or medical officer who gave
the certificate ought to appear as a witness at the hearing.
(2) No certificate referred to in section 40H (which
certificate is given by an approved analyst and relates to the
proportion of alcohol, a drug, or both, found to be in a blood
specimen) is admissible in evidence in proceedings for an
offence against this Act if:
(a) application has been made in accordance with
section 40G for one (1) part of the blood
specimen to be sent to a private analyst; and
(b) that part of the specimen has not been sent to the
private analyst in compliance with the
application,
but this subsection does not apply in respect of a specimen
destroyed under the authority of section 40G(8) before the
date of publication.
(3) No certificate referred to in subsection (5) or
subsection (6) of section 40H (which certificate is given by
an approved analyst and relates to the proportion of alcohol,
a drug, or both, in a blood specimen, or to the sending of
one (1) part of a specimen to a private analyst) is admissible
in evidence in proceedings for an offence against this Act if
the court, on application made by the defendant not less than
14 days before the hearing, orders that:
(a) in the case of a certificate referred to in that
subsection (5), the person who made the
analysis or the approved analyst who gave
the certificate ought to appear as a witness at
the hearing; or
(b) in the case of a certificate referred to in that
subsection (6), the person who posted or
delivered the part of the specimen, or the
person who gave the part of the specimen to
the courier, or the approved analyst who gave
the certificate ought to appear as a witness at
the hearing.


22 Road Traffic (Breathalyser) Amendment 2009, No.10

(4) The court may not make an order under subsection
(3) unless the application made by the defendant under that
subsection is accompanied by an affidavit, sworn by the
private analyst who is specified in the defendant’s
application under section 40G, to the effect that:
(a) since the date given to the private analyst as the
date on which application was made under
section 40G for the sending to the analyst of a
blood specimen relating to the defendant, the
analyst has not received any such specimen;
or
(b) the blood specimen received by the private
analyst relating to the defendant -
(i) was not suitable for analysis; or
(ii) was suitable for analysis but, for
specified reasons, that analysis was not
carried out; or
(iii) was suitable for analysis and that
analysis was carried out but, for specified
reasons, the results of the analysis are not
available; or
(c) the blood specimen received by the private
analyst relating to the defendant has been
analysed and found to contain not more than
80 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 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 40H.
(5) Where a blood specimen is destroyed in accordance
with section 40G, that act does not affect the admissibility in
proceedings of a certificate given in respect of the specimen
by an approved analyst for the purposes of this Act.


2009, No.10 Road Traffic (Breathalyser) Amendment 23

40M. Failure or refusal to remain at specified place
or to accompany enforcement officer-(1) A person
commits an offence if the person:
(a) fails or refuses to remain at the place where
the person underwent a breath screening
test under section 40A until after the
result of the test is ascertained;
(b) fails or refuses to accompany without delay
an enforcement officer to a place when
required to do so under section 40B; or
(c) having accompanied an enforcement officer
to a place under a requirement under
section 40B or section 40E -
(i) fails or refuses to remain at that
place until the person is required either to
undergo an evidential breath test or a
blood test under this Act; or
(ii) fails or refuses to accompany an
enforcement officer to another place
under either of those sections; or
(d) having undergone an evidential breath test
under a requirement under section 40B,
fails or refuses to remain at the place
where the person underwent the test until
after the result of the test is ascertained.
(2) If a person is convicted of an offence against
subsection (1):
(a) the maximum penalty is a fine not exceeding
50 penalty units; and
(b) the court may disqualify the person from
holding or obtaining a driver licence for
such period as the court thinks fit.

40N. Failure or refusal to permit blood specimen to
be taken-(1) A person commits an offence if the person:
(a) fails or refuses to permit a blood specimen to
be taken after having been required to do
so under section 40E by an enforcement
officer;


24 Road Traffic (Breathalyser) Amendment 2009, No.10

(b) fails or refuses to permit a blood specimen to
be taken without delay after having been
requested to do so under section 40E by a
medical practitioner or medical officer; or
(c) is a person from whom a medical practitioner
or medical officer may take a blood
specimen under section 40F and refuses
or fails to permit such a person to take a
blood specimen.
(2) If a person is convicted of an offence against
subsection (1):
(a) the maximum penalty is imprisonment for a
term not exceeding one (1) year or a fine
not exceeding 20 penalty units; and
(b) the court must order the person to be
disqualified from holding or obtaining a
driving licence for six (6) months or
more.
40O. Drivers and other road users to comply with
directions of enforcement officers, etc.-(1) A person must
comply with sections 40A, 40B, 40C, 40E and 40F (which
relate to the administration of breath screening tests,
evidential breath tests, and blood tests).
(2) A person must comply with all lawful requirements,
directions, and requests made by an enforcement officer
under any of sections 40A, 40B, 40C, 40E and 40F.
(3) A person must comply with all lawful requirements
and requests made by a medical practitioner or medical
officer under section 40E or section 40F (which relate to the
administration of blood tests).
(4) A person commits an offence punishable by six (6)
months imprisonment or a fine not exceeding 10 penalty
units, if the person fails to comply with any lawful
requirement or direction given by an enforcement officer, to
which this section applies.

40P. Defences-(1) It is a defence to proceedings for an
offence against section 40N (which relates to failing or
refusing to supply a blood specimen) if the court is satisfied,


2009, No.10 Road Traffic (Breathalyser) Amendment 25

on the evidence of a medical practitioner, that the taking of
a blood specimen from the defendant would have been
prejudicial to the defendant’s health.
(2) It is no defence to proceedings for an offence that a
provision forming part of sections 40A to 40I, and 40K has
not been strictly complied with or has not been complied
with at all, provided there has been reasonable compliance
with such of those provisions as apply.
(3) In any proceedings against any person for an offence
against section 40O(4) arising out of circumstances in which
an enforcement officer exercised powers under section 40Q
and in respect of which a breath screening test or an
evidential breath test or a blood test was undergone by the
person, it is no defence that:
(a) the breath screening test or evidential breath test
indicated that the proportion of alcohol in the
person’s breath did not exceed 40
micrograms of alcohol per 100 millilitres of
breath; or
(b) any evidence given in respect of the results of a
blood test indicates that the proportion of
alcohol in the person’s blood did not exceed
80 milligrams of alcohol per 100 millilitres
of blood.
(4) It is no defence to proceedings for an offence against
section 40N (which relates to failing or refusing to supply a
blood specimen) that:
(a) there was or may have been an error in the result
of the breath screening test or evidential
breath test; or
(b) the occurrence or likely occurrence of any such
error did not entitle or empower a person to
request or require an evidential breath test or
a blood test.


26 Road Traffic (Breathalyser) Amendment 2009, No.10

(5) It is no defence to proceedings for an offence against
this Act in respect of the proportion of alcohol in a person’s
breath:
(a) that there was or may have been an error in the
result of the breath screening test or
evidential breath test; or
(b) that the occurrence or likely occurrence of any
such error did not entitle or empower a
person to request or require an evidential
breath test.
(6) It is no defence to proceedings for an offence against
this Act in respect of the proportion of alcohol in a person’s
blood:
(a) that there was or may have been an error in the
result of the breath screening test or
evidential breath test; or
(b) that the occurrence or likely occurrence of any
such error did not entitle or empower a
person to request or require an evidential
breath test or a blood test.

40Q. Arrest of persons for alcohol or drug-related
offences, or assault on enforcement officer-(1) An
enforcement officer may arrest a person without warrant if
the officer has good cause to suspect that the person:
(a) has committed an offence against any of sections
40, 40M, 40N or 40O; or
(b) has assaulted that or any other enforcement
officer while the officer was acting in the
course of the officer’s official duties.
(2) The powers conferred by this section are in addition
to any other powers of arrest under this or any other
enactment.”.
________
The Road Traffic (Breathalyser) Amendment Act 2009 is
administered by the Ministry of Police and Prison.