The law that covers DUI blood tests in Tasmania is the Road Safety (Alcohol & Drugs) Act 1970. That Act states when a blood sample is taken following an accident or a random breath test, how the sample is to be taken (including who is authorised to take the sample), and details when it is an offence to refuse, obstruct, or hinder, a blood test.
How a DUI blood sample is taken
A DUI blood sample must be taken within 3 hours of the person driving. A small amount of blood is taken, usually from the arm, and is divided into the three containers in the blood sampling kit. One is given to the police, one to the driver and the third is kept as a control sample and must not be interfered with unless the court orders it. The police will have their sample tested. The driver can arrange for their sample to be tested if they wish. The method for analysing the sample is set out in the Road Safety (Alcohol and Drugs) Regulations 2009 and all analysts must comply with them if the result is to be used in Court.
When a DUI blood sample may be taken
In Tasmania any person who is, or has been within the last 3 hours, driving or sitting in the driver’s seat of a motor vehicle on a public street can be directed to undergo a breath or oral fluid (saliva) test. If the police believe that a person has illegal drugs in their system they may direct them to provide a blood sample after they have taken an oral fluid test. The police can do this even if the oral fluid test was negative. If a police officer believes that a person was the driver of a vehicle that was involved in an accident in which someone was injured, the police officer can require them to provide a sample of blood for analysis. If the police do not know who the driver was, they may require any person who was in the vehicle at the time of the accident to submit to the taking of a sample of blood for analysis.
Blood tests instead of breath tests
A person may choose to take a DUI blood test instead of a breath analysis, provided it is done within 3 hours of driving. If a person is directed to submit to a breath analysis and a doctor objects because it may be dangerous or not practical the person may be directed to submit to the taking of a sample of blood for analysis. A blood sample may be taken from a driver who is unconscious or suffering from some other medical issue that means they are unable to give consent if the treating medical officer agrees. The driver must be given their part of the blood sample and a notice as soon as possible, having regard to their physical condition. The notice must advise that a sample has been taken and that the person can object to the sample being analysed, but if they do they will be guilty of an offence.
Refusing a blood sample
In Tasmania, a person must comply with all directions regarding the taking of the sample of their blood. They must attend any place they are directed and while there obey all directions for the taking of the blood sample. If a person fails or refuses to comply, or behaves in a way that suggests they will not comply, a police officer may arrest them and take them to give their sample. If they refuse without reasonable excuse to allow the taking of a sample of their blood they are guilty of an offence.
Any person who, without reasonable excuse, fails to give a blood sample is guilty of an offence. If a person has been taken into custody for a blood test and they escape or attempt to escape or in any way interfere with the police taking them for the blood test they are guilty of an offence. A person who objects without a reasonable excuse to the analysis of their blood sample is guilty of an offence. Any person who does anything to try to change the level of alcohol or drugs in their system before giving a blood sample is guilty of an offence.
The penalty in Tasmania for a first offence is a fine of between $700.00 and $4,200.00, disqualification from driving for 12 to 36 months and 12 months jail. For a subsequent offence, the fine is $1,400.00 and $8,400.00, and a disqualification from driving of between 24 and 72 months and 2 years jail. The minimum fine and/or disqualification can be reduced if the court is satisfied that there are special circumstances. An offence is a subsequent offence if the driver has previously been convicted of any offence of driving under the influence of alcohol or drugs or any refusal to provide a blood or breath sample for analysis.