Schedule 3 of the Road Transport Act 2013 (NSW) governs the circumstances in which a person may be required to submit to a test, assessment or provide a sample of breath, blood or urine with respect to a suspected driving offence. Schedule 3 details the requirements for collection and analysis of such samples.
Knowing when you are required to comply with Schedule 3 is vital when you are interacting with Police. If the police have unlawfully their exercised powers, it may be that the evidence is inadmissible at a hearing.
The Police cannot require a person to submit to a test, analysis or assessment under Schedule 3 in the following circumstances (RTA schedule 3 cl 2(2)):
- If the person has been admitted to hospital for medical treatment, unless the treating medical practitioner has been notified and does not object to the test, analysis or assessment being conducted;
- If the sample taker has objected on the grounds that taking the sample would be dangerous to the person’s health;
- If it appears to the officer that it would, by reason of injuries sustained by the person, be dangerous to the person’s medical condition to submit to the test, assessment or provide the sample;
- At any time after the expiration of the relevant period;
- At the person’s home.
Power to require a person to submit to a test, analysis or assessment
| Enabling provision | Relevant circumstances | Sample | Relevant period |
| Division 2 | Random breath testing and breath analysis | Breath test or breath analysis | 2 hours |
| Clause 5A | Following arrest and only if person physically unable to submit to breath test or analysis | Blood | 4 hours |
| Division 3 | Random oral fluid testing for prescribed illicit drugs | Oral fluid test or oral fluid | 2 hours |
| Clause 9 | Following arrest and only if person physically unable to submit to test | Blood | 4 Hours |
| Clause 12 | Sample taken from person involved in an accident resulting in death – person does not need to be the driver | Blood or urine | 4 hours |
| Division 5 | Samples taken following arrest resulting from a failed sobriety assessment | Blood or urine | 4 hours |
In accordance with schedule 3 of the Road Transport Act, in order to conduct a random breath test or random oral fluid test, the officer must have reasonable cause to believe that:
- The person is or was driving a motor vehicle on a road, or
- The person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the vehicle in motion, or
- The person is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle (Road Transport Act 2013 sch 3, div 2 + 3).
The police may request or signal the driver of a motor vehicle to stop the vehicle for the purposes of conducting the test (Road Transport Act 2013 sch 3, cl 3.3 + 6.3). If a person fails to comply with such a request, they are liable to a penalty of a fine of up to $1,100.00 (Road Transport Act 2013 sch 3, cl 3.4 + 6.4).
If the roadside breath test indicates a blood alcohol concentration higher than is permitted under the Act, the police officer may arrest the person and convey them to a police station to conduct a breath analysis (Road Transport Act 2013 cl 7).
If the person fails the random oral fluid test, the police may arrest the person and take them to a police station for the purpose of obtaining oral fluid samples (Road Transport Act 2013 cl 8).
Other relevant provisions
Division 4 – Blood Samples from Accident Hospital Patients
Division 4 enables the sampling of blood from accident hospital patients. Under clause 11, a medical practitioner is required to take a blood sample from an accident hospital patient soon as possible. This provision only applies to individuals who are hospitalised for treatment following a road accident, and for injuries arising from the accident (Road Transport Act 2013 cl 10).
An accident hospital patient is defined by the Act as a person who attends at or is admitted into a hospital for examination or treatment in consequence of an accident and is at least 15 years of age (Road Transport Act 2013 sch 3 cl 10).
In the matter of Director of Public Prosecutions v Langford [2012] NSWSC 310, the driver was conveyed by Police to a nearby hospital for the purposes of obtaining blood and urine samples. The Court held that the samples were obtained unlawfully as the driver was not deemed an ‘accident hospital patient’ as they did not attend the hospital to obtain treatment.
Division 5 – Blood and Urine Sampling After Sobriety Assessment
Division 5 empowers the Police to arrest a person following a failed sobriety assessment (Road Transport Act 2013 cl 14.). The Police are then able to obtain blood and urine samples.
The Act does not define what constitutes a “sobriety assessment.” The case of Baulman v The Queen (2007) 6 DCLR (NSW) 1 clarified that the mere making of observations does not constitute a formal sobriety assessment. The Court stated that a sobriety assessment must include the officer taking specific steps beyond general observations that lead that officer to the formation of a reasonable belief regarding the individual’s condition.
Offences relating to testing and sample taking
Division 6 makes the following conduct an offence liable for punishment:
| Section | Offence | Penalty |
| 16 | Refusal or failure to submit to test, analysis or assessment | Breath test, oral fluid test or sobriety assessment: a fine of $1,100.00
Breath analysis: First offence – $3,300.00 and / or imprisonment for 18 months
Subsequent offence – $5,500.00 and / or imprisonment for 2 years |
| 17 | Refusal or failure to provide samples or preventing sample taking | If offence arises in relation to the requirement to provide sample under division 3:
First offence – $3,300.00 penalty units
Subsequent offence – Fine of $5,500.00 and / or imprisonment for 18 months
Any other case First offence – a fine of $3,300.00 and / or imprisonment for 18 months
Subsequent offence – $5,500.00 and / or imprisonment for 2 years |
| 18 | Wilful introduction or alteration of concentration or amount of alcohol or other drugs | In the case of an offence against subclause (1)(a), (b), (e), (f) or (g)
First offence – a fine of $3,300.00 and / or imprisonment for 18 months
Subsequent offence – $5,500.00 and / or imprisonment for 2 years
In the case of an offence against subclause (1)(c) or (d)
First offence – a fine of $3,300.00 and / or imprisonment for 18 months
Subsequent offence – $5,500.00 and / or imprisonment for 2 years |
| 19 | Hindering or obstructing police officers or sample takers | A fine of $2,200.00 |
| 20 | Refusal or failure to take sample | A fine of $2,200.00 |
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
