Page 1158 - Week 03 - Thursday, 31 March 2011
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stations. The duty of care includes taking steps to prevent persons in custody being injured. It extends to the prevention of injury from self-harm.
Unfortunately, it is not uncommon for the police to take an intoxicated person into custody and to discover that the person has a weapon, such as a knife. At present, under the act there is some uncertainty as to the legal basis for conducting a preventative search of drivers in custody to determine whether the person has items that could be used for self-harm or to injure others while in police custody. To provide a clear legal basis for preventative searches of this type, the bill includes a provision, based on section 5 of the Intoxicated People (Care and Protection) Act, to provide a power to search persons taken into custody for alcohol or drug testing and to remove any items that may pose a risk of injury to the person or to others.
Like the search power in the Intoxicated People (Care and Protection) Act, it is not a forensic or evidentiary search provision. The purpose of the search is not to find evidence to establish the person’s involvement in the commission of any offence. The purpose is to ascertain whether the person is carrying any items that may be used to cause harm or injury to that person or to others. If the police did not act to remove a dangerous item from a person in custody, the police may be held accountable for resultant harm.
The bill includes technical amendments to section 16 of the act which deals with medical examinations of persons arrested for certain driving offences. These amendments clarify that, where a person is suspected of the offence of driving while intoxicated, the person may be asked to provide a body sample under section 16 for testing for the presence of a prescribed drug even though it has not been practicable or possible to carry out a drug screening or analysis first. The amendment takes account of the technical limitations of roadside drug-screening technology. The bill therefore provides for the situation where it is not practicable to require a person to undergo a drug-screening test or drug analysis before the person is arrested on reasonable suspicion of committing an offence against section 24 of the act or a culpable driving offence.
It is important that a sample be taken from the driver within a comparatively short time after the alleged offence and the drug analysis instrument may not be readily available within that time frame. Therefore, replacement section 16(1) applies to enable a blood sample to be taken to test for the presence of a prescribed drug, even though it has not been possible to undertake preliminary drug screening or analysis.
The bill includes other amendments relating to foreign drivers that clarify the eligibility provisions for foreign drivers who seek an exemption from the requirement that a person must have held an ACT provisional licence of the relevant class for a certain period before applying for a full driver licence of a particular class. These technical amendments to the Road Transport (Driver Licensing) Regulation explain that it is only foreign drivers who hold a licence from a country recognised by Austroads that are regarded as holding a driver licence that corresponds to an ACT licence of the equivalent class.
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