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Blood tests

Information explaining the processes for conducting a blood test for drivers who police believe have been drinking alcohol and driving.

Blood samples can be taken if:

  • a driver asks for a blood test after providing a sample for breath analysis
  • a driver is incapable of giving a breath test, or oral fluid test
  • police require a person to give a blood sample instead of breath analysis
  • a person attends or is brought to a place, such as a hospital, for treatment or examination following a motor vehicle accident (this includes sampling from a fatally injured person)
  • there has been an accident where a person dies or has been seriously injured and police believe that someone was driving or in charge of a motor vehicle involved in the accident, they can require that person to have a blood test, even if that person was not injured themselves, or
  • if after a drug impairment assessment if police believed person may be impaired by a drug.

See When breath tests, oral fluid tests, urine tests and blood tests can be taken [1.6.1040](opens in a new window).

How the blood sample is taken

The sample must be taken by registered medical practitioner or an approved health professional who is nominated by the police. A police officer must be present. The skin must be swabbed with sealed and clearly labelled cleansing solution (chlorohexadine and cetrimide) that is prescribed in the regulations.

See rr. 13, 11—Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

Blood tests at driver's request

After receiving a certificate of breath analysis, a person may ask to have a blood test. This must be done immediately after being given a certificate of breath analysis. The driver may have to pay for the cost of this test.

See s. 55(10)—Road Safety Act 1986 (Vic)(opens in a new window).

Do police have to organise blood test if driver asks?

Although the Act does not give police a positive duty to allow the person to have a blood test, s. 55(13) Road Safety Act 1986 states that evidence of a breath analysis will not be inadmissible if reasonable efforts were made to comply with a request for a blood test. So it may be possible for the defence to argue that evidence of the breath analysis should be inadmissible if police do not make a reasonable attempt to organise a blood test if the driver asks for one.

The blood test request provision seems to have been added so that the driver may have some protection from a faulty breath analysis if there is a large discrepancy between one result and the next.

See commentary in Motor and traffic law Victoria—[5655.255] and s. 55(13)—Road Safety Act 1986 (Vic)(opens in a new window).

Blood tests instead of breath analysis

Police may require a person to give a blood sample instead of breath analysis if they believe that:

  • the person is unable to provide a breath sample either on medical grounds or because of a disability, or
  • the analysing instrument is incapable of measuring the sample.

The person may be required to accompany a member of police to a place where a blood sample can be taken and to stay there until either:

  • a sample has been taken, or
  • more than 3 hours after the person was driving, in charge or an occupant of the motor vehicle.

Only a registered medical practitioner or approved health professional (such as a nurse) is allowed to take blood samples from a person.

See s. 55(2A)—Road Safety Act 1986 (Vic).

Only one test allowed

Police can only require one blood test. If a driver has already provided a blood sample instead of breath analysis, the police cannot ask for another sample to be taken.

See s. 55B(1A)—Road Safety Act 1986 (Vic).

Blood analysis certificates

If a driver has a blood test and the result shows they have more than the prescribed amount of alcohol present in their blood, the person will be served with 2 blood analysis certificates:

  • a certificate of medical practitioner of the taking of blood sample, and
  • a certificate of the approved analyst (stating sample was analysed in an approved laboratory).

Both certificates can be used as evidence in court. If no other evidence is produced by the person, these certificates will be enough to prove that blood was properly taken and that the BAC reading that is written on the certificate of analysis is correct.

Service of certificates

These certificates must not be used in evidence unless a copy has been served on the defendant. Service may be carried out either by it being:

  • personally delivered, or
  • left at the person’s usual place of residence or workplace with a person who appears to be over 16 years old.

If a certificate is not served more than 10 days before the date of court hearing, the prosecution must ask the defendant's permission to use the certificate as evidence in court.

See s. 57—Road Safety Act 1986 (Vic).

Obstruct blood test

It is an offence for a person to hinder or obstruct an approved practitioner from taking a sample of blood from any other person as required:

  • where a blood test is required instead of breath analysis
  • where a blood sample is required following motor vehicle accident.

Penalty

The penalty for obstructing a blood test on someone else is a maximum of 12 penalty units.

See s. 55(9D)—Road Safety Act 1986 (Vic).

Storage and handling of blood samples

The sample must be divided equally into 2 dry containers, vacuum or septum sealed container that contains prescribed preservative and anticoagulant. The label must bear the name of the place it was prepared and must bear the signature of the professional who took the sample. It must identify the person from whom the sample was taken. Both containers must be given to the police. Police will organise for one of the containers to be sent off for analysis. The other they must keep.

If the sample is taken after a road accident, one sample must be placed in a locked receptacle and another marked 'screening sample'. From 31 January 2018 there is no longer a requirement to give a sample to the person who provided the sample. If the person would like to have the sample independently tested, they can request the reserved sample from the police.

See r. 11—Road Safety (General) Regulations 2019 (Vic).

Storage—how to preserve a sample

Blood samples should be kept sealed in their original plastic packaging and placed in the refrigerator—not the freezer. Under these conditions blood can be preserved for several years without the alcohol content breaking down. (This information was provided by Dr O'dell from Clinical Department of Victorian Institute of Forensic Medicine, December 2006.)

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 3—approved health professional refers to someone who is registered under Division 1 of Health Professionals Registration Act 2005
  • s. 49(1)(a)—driving under influence offence
  • s. 49(1)(b)—drives with more than prescribed amount of alcohol in their blood or breath
  • s. 53—preliminary breath tests
  • s. 55(9A)—where blood sample can be required
  • s. 55(10)—person required to provide breath sample can request blood test
  • s. 55(13)—evidence from a breath analysis will not be inadmissible if police make all reasonable attempts to organise for a blood test to be taken at the driver's request (and expense)
  • s. 55B (1A)—can only require driver to have one blood sample taken
  • s. 55 (9D)—creates offence and lists penalty for obstruction by person required to have blood sample taken instead of breath analysis
  • s. 55BA—blood samples in accidents resulting in death or serious injury
  • s. 56—creates offence and penalty for person who obstructs test following accident
  • s. 57—evidentiary provisions for blood tests
  • s. 57(3)—certificate by registered medical practitioner
  • s. 57(4)—certificate of approved analyst stating sample analysed in an approved laboratory
  • s. 57(5)—time for service of certificates
  • s. 57(5A)—how service is to be carried out

See Road Safety Act 1986 (Vic)(opens in a new window).

Road Safety (General) Regulations 2019 (Vic)

  • Part 2—evidence relating to Alcohol & Drug Offences
    • r. 13—procedure for taking blood sample
    • r. 14—procedure after taking a blood sample
    • r. 19—certificate of registered medical practitioner under s. 57(3) Road Safety Act 1986
    • r. 20—certificate of approved analyst under s. 57(4) Road Safety Act 1986

See Road Safety (General) Regulations 2019 (Vic)(opens in a new window).

Health Practitioner Reglation National Law (Victoria) Act 2009 (Vic)

  • This Act adopts a national law to establish the registration and accreditation of health practitioners.
  • s. 6—gives VCAT jurisdiction to regulate this national law in Victoria.

See Health Practitioner Reglation National Law (Victoria) Act 2009 (Vic)(opens in a new window)

The National Law that provides for the regulation of health professionals across Australia sits in Schedule 1 of the Queensland Act:

See Schedule 1—Health Practitioner Legislation National Law Act 2009 (Qld) (opens in a new window)

Victoria Police Manual

The Lawyers Practice Manual has information about police guidelines for drivers who are suspected of driving under the influence of alcohol or other drugs:

Westlaw's Lawyers Practice Manual

The Lawyers Practice Manual has a flowchart to show when blood tests can be taken.

See When breath tests, oral fluid tests, urine tests and blood tests can be taken [1.6.1040](opens in a new window).

Motor and Traffic Law

Lexus Advance's Motor & traffic law—Victoria has commentary about taking blood tests and blood analysis [5655.1].

Note: To access content type the brackets and number reference into the search box, for example '[5655.1]'

Link directly to Part 5—Offences involving alcohol or other drugs(opens in a new window)

See Motor & traffic law—Victoria(opens in a new window).

Acknowledgement

Thanks to John Marquis, Barrister, for assistance with information about how a person gets a sample of their blood to test independently following the changes to procedure that apply from 31 January 2018.

Updated