In Queensland, the taking of blood tests by drivers who are suspected of driving under the influence are covered by the Transport Operations (Road Use Management ) Act 1995. It is an offence to refuse a blood test or to inhibit a medical practitioner from taking the blood sample.
When the DUI blood sample can be taken
Any person who police suspect may have been driving or attempting to drive a vehicle in the previous 3 hours can be requested to provide a sample of breath or saliva to find out if they are or were driving under the influence of alcohol or a drug. If they refuse to do so, or if they do not give a sufficient sample for testing, then the police may request a blood sample. If a breath testing machine malfunctions or does not show a reading for drugs or alcohol, and the person appears to be affected by something, the police can request a blood sample is given instead.
If a person who is directed to provide a breath or saliva sample shows the police a doctor’s certificate that says they are medically or physically unable to provide one then the police must direct them to provide a blood sample instead.
Police can also require a blood test from a person who has been arrested for an offence to do with their manner of driving, or for a vehicle offence involving alcohol or drugs or for any indictable offence that has some connection to driving. A blood sample may be taken from a person who is unconscious or otherwise unable to communicate.
A sample will not be taken if the treating doctor or nurse believes that taking the blood sample would prejudice the person’s treatment. They may also refuse to take one if they have another reasonable excuse. A person has no right to request a blood test instead of another test.
How a DUI blood sample is taken
Any person may be held for a reasonable time for a blood sample to be taken. It may be taken at the police station, or at a hospital or healthcare facility. Two samples are taken. The first sample is given to the police for analysis and the second to the driver. The police will arrange for the testing of their sample. The person may have their sample tested.
Refusing a sample
If a person is required to provide a sample of blood for testing they are taken not to have done so unless it is sufficient for the test or the analysis to be carried out. They must allow a doctor or nurse, or a qualified assistant to take the sample and must do so when and as directed by and to the satisfaction of the healthcare professional. If they fail to give a specimen sample (breath or blood), their license will be suspended until after the matter is dealt with by the court. There is no appeal or review of that suspension.
A person must not obstruct a healthcare professional taking a specimen of blood from someone else without a reasonable excuse. The maximum penalty is a fine of $4,554.00. A person must not drive while their licence is suspended for failing to provide a blood sample. There is a maximum penalty of $1,594.00 or 12 months jail.
Section 80(11)(c) of the Transport Operations (Road Use Management) Act, refusing a blood test is an offence for which the same penalties are prescribed as for driving under the influence. For a first offence, the maximum penalty is a fine of $3,187.80 or 9 months’ jail. If it is a second conviction within 5 years (the first conviction being for either refusing a blood test, driving under the influence or for a serious driving offence) the maximum penalty is $6,831.00 or 18 months’ jail.
For a subsequent conviction, the court must sentence the person to jail as a whole or part of the penalty. If it is a second conviction within 5 years and the first conviction being for driving under the influence offence then the maximum penalty is a fine of $3,416.00 or 12 months’ jail. For a subsequent conviction within 5 years the maximum penalty is a fine of $6,831.00 or 18 months’ jail. For any conviction, there will be a period of disqualification from driving, which may include participation in an Alcohol Ignition Interlock Program
Challenging a sample
A blood sample reading may be challenged on a few grounds. Firstly, the driver can have their sample analysed. To be able to rely on the result all of the requirements for testing must be complied with. The accuracy of the police sample may also be challenged if all of the requirements for the transmission and testing of the sample were not properly complied with. It is a defence to the charge of refusing to provide a blood sample if the request to provide the specimen was not lawfully made. It is also a defence if a sample could not be provided because of events that occurred that meant the driver was incapable of providing the specimen. It will also be a defence if the court accepts that there was some other good reason for the person’s failure to provide the specimen.