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Blood tests after a road accident

Information explaining the law about taking a blood sample after a motor vehicle accident.

Any person aged over 15 who enters (or is brought into) a place for examination or treatment after a motor vehicle accident must allow a doctor to take blood sample for analysis.

A blood sample may be taken whether or not the person was driving at the time of accident. An exception is made if the doctor is advised in writing that the person was not the driver of the vehicle.

A successful prosecution for failing to consent to a blood test relies on establishing that the person was driving or in-charge of motor vehicle. See Colwell v Mason (1992) 17 MVR 328 at 331 SC (Vic).

If the patient is unconscious or unable to communicate, they will be deemed to have given consent to a blood sample being taken.

A person can’t be penalised for failing to allow blood sample if they were not asked to do so.

See s. 56—Road Safety Act 1986 (Vic)(opens in a new window).

Road accident where someone dies or is seriously injured

Police can require a person to go with them to have a blood test taken if there has been an accident where a person dies or is seriously injured and police reasonably believe that a person may have been driving or in charge of a vehicle that was involved in that accident.

This will not apply if that person has also been injured and has to attend hospital, or if 3 hours have passed since the accident.

In circumstances where the person is injured, the procedure is set out in section 56 of the Road Safety Act 1986 (Vic)

See ss. 55BA(4), (5), 56—Road Safety Act 1986 (Vic)(opens in a new window).

Who is qualified to take blood?

Approved health professionals as well as doctors may take blood samples from people after a motor vehicle accident. This is the same for other blood tests if someone is suspected to have been drink or drug driving.

For more details about the procedure for storage and handling of blood samples and the required procedures see Blood tests.

Testing more than 3 hours after the accident

There is no mention of any restriction to taking blood after 3 hours has elapsed since the person was driving in situations where a person presents themselves to a place for treatment after a motor vehicle accident. Results from a test can be used in court even if the test is done more than 3 hours after the accident occurred. There must have been an accident for this law to apply.

According to case law this requires some damage to a person or to vehicle or some other adverse physical affect. See Colwell v Mason (1992) 17 MVR 328 at 331 SC (Vic).

In situations where a person is to have their blood analysed following a motor vehicle accident where someone dies or is seriously injured, the person is not obliged to allow a sample to be taken if more than 3 hours has passed since the accident.

See s. 55BA(4)—Road Safety Act 1986 (Vic)(opens in a new window).

Code of practice for taking samples from road accident victims

A code has been developed and adopted at many locations where blood is taken from people injured after a motor vehicle accident. Courts may give leave for a defendant to cross examine the person who compiled the blood test certificate if they believe there is a reasonable possibility that this code was not followed.

The code states that it is organisational policy to take samples from all drivers and motorcycle riders who are brought in or who present themselves for treatment or examination following a motor vehicle accident unless there are compelling reasons for not doing so.

In practice all people involved in an accident are treated as potential drivers/riders and tests will generally be carried out unless written information is received. If time permits, even people who are known to be pedestrians and cyclists will have blood samples taken.

Details of people who refuse these blood tests will be noted in both the person's medical record and the police form.

Penalties

The penalties for refusing or obstructing a blood test following a motor accident are:

  • first offence: 12 penalty units
  • second offence: 120 penalty units or 12 months imprisonment
  • third offence or more: 180 penalty units or 18 months imprisonment.

See s. 56(2)—Road Safety Act 1986 (Vic)(opens in a new window).

Disqualification/licence cancellation

Anyone found guilty or convicted of refusing to allow a blood sample to be taken must have their licence cancelled and must be disqualified from driving for minimum period of:

  • 2 years for a first offence
  • 4 years for a subsequent offence.

See s. 56(2)—Road Safety Act 1986 (Vic)(opens in a new window).

Exception

The penalty does not apply if the doctor giving treatment believes that the testing could affect the patient's care or treatment.

See s. 56(4)(a)—Road Safety Act 1986 (Vic)(opens in a new window).

Trying to stop testing of someone else

The penalty for any person who hinders or obstructs a doctor (or other authorised person) attempting to take sample from another person is 12 penalty units.

See s. 56(7)—Road Safety Act 1986 (Vic)(opens in a new window).

Blood tests as evidence

Blood samples taken after road accidents can only be used as evidence:

  • to determine whether a person was under the influence of alcohol or drugs while driving or in charge of a vehicle
  • in a charge of culpable driving causing death
  • for charges of murder/manslaughter or negligently causing serious injury arising from driving of motor vehicle
  • for purposes of the Transport Accident Act 1986 (including Transport Accident Commission and VCAT applications).

Evidence, data analysis or results may also be given to VicRoads for accident research purposes.

See s. 56(6)—Road Safety Act 1986 (Vic)(opens in a new window).

More information

Legislation

Road Safety Act 1986 (Vic)

  • s. 3(1)—defines registered medical practitioner and approved health professional (registered nurse)
  • s. 55BA—blood samples in accidents resulting in death or serious injury
  • s. 56—blood samples to be taken in certain circumstances
  • s. 56(1)—doctor defined
  • s. 56(2)—penalty
  • s. 56(3)—licence cancellation and disqualification
  • s. 56(4)—exception if prejudicial to the person's care and treatment
  • s. 56(6)—limits on evidence related to blood samples taken following road accident
  • s. 56(7)—penalty for person obstructing or hindering doctor
  • s. 57—evidentiary provisions—blood tests
  • s. 57(2)—charges where blood sample evidence can be used

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

Road Safety (General) Regulations 2019 (Vic)

  • r. 10—procedure for taking blood sample
  • r. 11—procedure after taking blood sample

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

References

Motor & Traffic Law Victoria

Motor & traffic law—Victoria has commentary about the code of practice for taking of blood samples from road accident victims [5665.35].

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

Updated